WE return now to the legal question whether such a definite system of control as proposed in the previous chapter, instituted through mandatory legislation, would stand the test of constitutionality. Legal opinions differ, because there are no decisions by the Supreme Court that would warrant an absolutely conclusive answer. It is our belief, however, that such a plan adopted and carried into effect by a legislature would be upheld by the Supreme Court as now constituted.
All past decisions relating to valuation and return presented other issues than those involved in the establishment of a fixed rate base and return. They have been concerned throughout with attempts at rate making according to the law of the land as developed by constitutional construction under lack of definite legislative provisions. In no instance has there been an effort to fix comprehensively by statute the relative rights of investors and consumers, to establish a precise basis of rate making for the protection of the respective rights, and at the same time to provide systematically for expansion and improvement of service according to public needs.
The courts have never been confronted with a clear legislative policy carefully devised to correct the administrative and financial defects of the present system. They have been concerned with the law as it is, not with a change in the law. They have never had occasion to pass upon the basic legality of replacing poor law with good law. They have dealt with cases that arose under existing statutes in relation to the Constitution. They never dealt with comprehensive legislation creating