Satluiay Sat? fogtalattan.
Views of
JUDGE WM. H. WEST,
of
Bellefontaine, Ohio
UPON THE CONSTITUTIONAL
AND LEGAL GUESTIONS INVOLVED.
-•t •
; . • • •
Bellefontäine, Ohio, January z6, 1906.
Hon. J. B. Foraker,
Washington, D. C.
My Dear Senator:
Your favor of Monday received and contents noted.
You can dispose of the papers sent you on the rate
question at your discretion. Writing them was under¬
taken without the slightest view to their printing.
************
The infirmity of two and eighty years and total loss of
vision confine me to my house, and have, since Septem¬
ber. Without mental employment, this confinement is
intolerable imprisonment. Until Congress convened in
December, I had no thought but that the power to pre¬
scribe rates might be vested in the Commerce Commis¬
sion, as I had given no attention to the subject. Notic¬
ing that sharp differences obtained between distinguished
members of Congress and others touching this power,
I determined, for my own satisfaction, to look into and
study the question from the standpoint of the Constitu¬
tion alone.
The result of that inquiry was the first series of papers
sent you, which were written at odd hours as I could
conscript a reader and typewriter. What I had written
having appeared in print, I should have been exceed¬
ingly mortified to find my conclusions at variance with
and unsupported by the adjudicated cases. I thereupon
determined to look into the cases, and, to aid in the in-
2
quiry, I wrote to our Representative, Hon. R. D. Cole,
to send me copies of the Rate Bills pending before Con¬
gress, which he did. The result of this inquiry is the sec¬
ond series of papers sent you. The reasons given there¬
in and cases cited establish beyond peradventure that
Congress is without authority to delegate to the Com¬
mission power to prescribe the rate charges of common
carriers. You can, I repeat, dispose of them at your dis¬
cretion, if you think they may contribute in any degree
to the settlement of the vexed question.
My doctrine is, that if there be two methods of reme¬
dying the same mischief, one in harmony with'the Con¬
stitution, the other violative thereof or of questionable
constitutionality, that one should be adopted which pre¬
serves the Constitution intact. The advocates of rate-
making by the Commission appear to act on the princi¬
ple that the end justifies the means, and that whatever
public opinion demands shall be granted regardless of
the Constitution.
It has come to pass that every one who dares to main¬
tain or defend the constitutional rights of common car¬
riers by rail is denounced as the tool or corrupt hireling
of the railway lobby. I think the oath which every
member of Congress has recorded above to support the
Constitution, is as sacred as that of the Chief Magis¬
trate; and if I had a seat in that body I would declare
my convictions and act upon them regardless of conse¬
quences. If the Senate yields to public clamor, then
Goodbye constitutional government.
Yours very truly,
W. H. WEST.
3
Congress and Interstate Commerce.
It is intended in this paper to restate the reasons, with
others, for the opinion expressed in a former paper, that
the propositions here following must be determined in
the negative, citing authorities not consulted before that
paper was prepared.
Propositions.
Does the power of Congress "to regulate commerce
with foreign nations, and among the several States" in¬
clude the power to prescribe maximum or other rates
of compensation which common carriers shall charge
for their services in transporting it?
Assuming that it does, can Congress delegate to "a
tribunal inferior to the Supreme Court," or to an admin¬
istrative board the power to prescribe such rates and to
compel their observance?
Only commercial intercourse with foreign nations and
between the several States is taken cognizance of by the
Federal Constitution. Only that commercial inter¬
course conducted by common carriers for hire is in¬
volved in and will be considered in this discussion. As
a clear apprehension of what are the subjects of com¬
mercial intertransportation, what the subjects of commercial
regulation, the distinction between them, of what are
the objects of such regulations, and the source of the
power in Congress to prescribe them, is essential to a
correct understanding and the intelligent application of
the adjudged cases cited, they are here stated in their
order.
4
The Subjects of Commercial Intertransportation.
1. The subjects of international commerce are pas-
seng'ers and freights in transit between the United States
and foreign nations; The subjects of interstate commerce
are passengers and freights in transit between the States
and Territories of the United States. Until the voyage
or journey of the passenger terminates, or the freight has
readied its destination, and they respectively become com¬
mingled with the general mass of people and property, they
are equally within and under the protection of Federal au¬
thority. As said by Chief Justice Marshall in Gibbons vs.
Ogden, 9 Wheaton, 215, "No clear distinction is perceived
between the power to regulate vessels in transporting men
for hire and property for hire." Also by Mr. Justice
McLean, in Smith vs. Turner, 7 How., 405, "When the
merchandise is taken from the ship, and becomes mingled
with the property of the people of the State, like other prop¬
erty, it is subject to the local law; but until this shall take
place, the merchandise is an import, and is not subject to the
taxing power of the State, and the same rule applies to pas¬
sengers. When they leave the ship, and mingle with the cit¬
izens of the State, they become subject to its laws." So by
Mr. Justice Field, in Gloucester Ferry Co. vs. Pennslyvania,
114 U. S., 203, "Transportation implies the taking up of
persons or property at some point and putting them down at
another. A tax, therefore, upon such receiving and land¬
ing of passengers and freight is a tax upon their transpor¬
tation; that is, upon the commerce between the two States
involved in such transportation. * * * Commerce
among the States consists of intercourse and traffic between
their citizens, and includes the transportation of persons and
property." These cases and many others of like effect, make
it manifest that the subjects of interstate commerce are iden¬
tical in character and kind with the subjects of international
s
commerce, namely, persons and property in transit; and
hence, that the powers which Congress may constitutionally
exercise in respect to interstate commerce are identical with
the powers which it may constitutionally exercise respecting
international commerce, or at least ought to be, no more, no
less, nor different; and it will later appear that such is the
case.
Subjects of Commercial Regulation.
The subjects of commercial regulation between the United
States and foreign nations and between the States and Terri¬
tories of the United States, are not the persons and property
transported, but the instrumentalities, vehicles, appliances,
agencies, equipments, facilities, and conveniences used or em¬
ployed by the carrier in furthering the persons and property
by him transported to their ultimate destination; and for
their protection, safety, or comfort, while in transit. These,
in maritime commerce, extend to and embrace the vessels
employed, the officers and crews conducting such vessels, the
places or conveniences for embarkation and landing, thè ap¬
pliances and equipments for the protection, safety and com¬
fort of passengers, and the protection and safety of property
on board, including signals and rules to be observed by the
carrier or his employees and servants in navigation, and
others of like character and purpose ; and, in land transporta¬
tion, extend to and embrace instrumentalities and vehicles
used or employed therein, including railways and their appli¬
ances and equipments, conductors, brakemen, switchmen,
engineers, firemen, train dispatchers, cars, locomotives, the
places for the receiving and discharge of passengers or
freight, and all other kinds of instrumentalities, agencies, or
facilities used or employed in or in connection with such
transportation until the voyage is terminated or the place of
destination reached. As said in Gibbons vs. Ogden, 9
6
Wheaton, 229, "Commerce, in its simplest signification,
means an exchange of goods ; but, in the advancement of so¬
ciety, labor, transportation, intelligence, care, and various
mediums of exchange, become commodities, and enter into
commerce; the subject, the vehicle, the agent, and their vari¬
ous operations, become the objects of commercial regula¬
tion;" also by Mr. Justice McLean, in Smith vs. Turner, 7
How., 408, "The officers and crew of the vessel are as much
the instruments of commerce as the ship;" so by Air. Justice
Curtis, in Cooley vs. The Board of Wardens, 12 How., 316,
"The power to regulate navigation is the power to prescribe
rules in conformity with which navigation must be carried
on. It extends to the persons who conduct it, as well as to
the instruments used;" so by Mr. Justice Field, in Gloucester
Ferry Co. vs. Pennsylvania, 114 U. S., 203, "Commerce
among the State consists of intercourse and traffic between
their citizens, and includes the transportation of persons and
property, and the navigation of public waters for that pur¬
pose, as well as the purchase, sale and exchange of commodi¬
ties. The power to regulate that commerce, as well as com¬
merce with foreign nations, vested in Congress, is the power
to prescribe the rules by which it shall be governed. * * *
The power embraces within its control all the instrumentali¬
ties by which that commerce may be carried on. * * *
The subjects, therefore, upon which the power may be ex¬
erted are of infinite variety. * * * Necessarily that
power alone [Congress] can prescribe regulations which are
to govern the whole country, and it needs no argument to
show that the commerce with foreign nations and between
the States, which consists in the transportation of persons
and property between them, is a subject of national charac¬
ter and requires uniformity of regulation;" and by Mr. Jus¬
tice Lamar, in Norfolk & W. R. Co., vs. Pennsylvania, 136
U. S., 960 (Nat'l Reporter System), "Whenever a commod¬
ity has begun to move as an article of trade from one State ta
7
another, œmtnerce in that commodity between the States
has ojmmenced. The fact that several different and inde¬
pendent agencies are employed in transporting the commod¬
ity, some acting entirely in one State and some acting
through two or more States, does in no respect qffect the
character of the transaction. To the extent in which each
agency acts in that trmsaction, it is subject to the regulation
of Congress." These cases and others of like import make
it dear that the subjects of œmmercial regfiilation by Con¬
gress in respect of interstate commerce, are identical in kind
and diaracter with the subjects of commercial r^uktion
by Congress in respect of international commerce, and hence,
that the. powers which it may constitutionally acerase in the
regulation of either are identical with the powers it may ex¬
ercise in the regulation of the other, no greater, no less, nor
different, as will lata: appear.
Objects of Commercial Regulation.
It requires tíie citation of no adjudged cases to make it
obvious that the objects and purposes sought to be subserved
by the regulation of interstate commerce are identical with
the objects and purposes sought to be subserved by the reg¬
ulation of international commerce. These are, in respect of
each and both, the safety and comfort of the persons and ani¬
mals transported, the safety of the property carried, and the
exemption of each and both from interference or the levying
of tribute or other burdens by State legislation while in
transit.
Common Source of the Power to Regulate.
Art. I, Sec. 8, of the Constitution ordains that Congress
drall have power:
I. "To lay and collect taxes, duties, imposts, and ex¬
cises, to pay the debts and provide for the œmmon defense
8
and general welfare of the United States ; but all duties, im¬
posts and excises shall be uniform throughout the United
States."
2. "To borrow money on the credit of the United States."
3. "To regulate commerce with foreign nations, and
among the several States, and with the Indian tribes."
18. "To make all laws which shall be necessary and proper
for carrying into execution the foregoing powers, and all
other powers vested by this Constitution in the government
of the United States, or in any Department or Officer
thereof."
In Gibbons vs. Ogden, 9 Wheaton, 194, Chief Justice
Marshall, after citing Clause 3, of Sec. 8, thus speaks: "To
what commerce does this power extend? The Constitution
informs us, to commerce 'with foreign nations, and among
the several States, and with the Indian tribes.'
"It has, we believe, been universally admitted that these
words comprehend every species of commercial intercourse
between the United States and foreign nations. No sort
of trade can be carried on between this country and any
other to which this power does not extend. It has been
truly said that commerce, as the word is used in the Consti¬
tution, is a unit, every part of which is indicated by the
term.
"If this be the admitted meaning of the word, in its ap¬
plication to foreign nations, it must carry the same meaning
thronghout the sentence, and remain a unit, unless there be
some plain intelligible cause which alters it.
"The subject to which the power is next applied is to com¬
merce 'among the several States.' The word 'among' means
intermingled with. A thing which is among others is inter¬
mingled with them. Commerce among the States cannot
stop at the external boundary line of each State, but may be
introduced into the interior. * * * Comprehensive as
9
the word 'among' is, it may very properly be restricted to that
commerce which concerns more States than one. * * *
The genius and character of the whole government seem to
be that its action is to be applied to all the external concerns
of the nation, and to those internal concerns zvhich aifect
the States generally; but not to those which are completely
within a particular State, which do not affect other States,
and with which it is not necessary to interfere for the pur¬
pose of executing some of the general powers of the govern¬
ment. The completely internal commerce of a State, then,
may be considered as reserved for the State itself. * * *
"We are now arrived at the inquiry—what is this power?
"It is the power to regulate; that is, to prescribe the rule
by which commerce is to be governed. This power, like all
others vested in Congress, is complete in itself, may be ex¬
ercised to the utmost extent, and acknozvledges no limita¬
tions other than are prescribed in the Constitution. * * *
If, as has always been understood, the sovereignty of Con¬
gress, though limited to specified objects, is plenary as to
those objects, the power over commerce with foreign nations
and among the several States is vested in Congress as aljso-
lutely as it would be in a single government, having in its
Constitution the same restrictions on the exercise of the
power as are found in the Constitution of the United
States." * * *
Again, on page 201, he says: "We must first determine
whether the act of laying 'duties or imposts on imports or
exports' is considered in the Constitution as a branch of the
taxing power, or of the power to regulate commerce. We
think it very clear that it is considered as a branch of the
taxing power. It is so treated in the first clause of the 8th
section : 'Congress shall have power to lay and collect taxes,
duties, imposts, and excises ;' and before commerce is men¬
tioned, the rule by which the exercise of this power must be
lO
governed is declared. It is that all duties, imposts and ex¬
cises shall be uniform. In a separate clause of the enumera¬
tion the power to regulate commerce is given as being en¬
tirely distinct from the right to levy taxes and imposts, and
as being a nezu power not before conferred. The Constitu¬
tion, then, considers these powers as substantive and distinct
from each other; and so places them in the enumeration it
contains." So by Mr. Justice Johnson, concurring at page
228, "Another view of the subject leads directly to the same
conclusion. Power to regulate foreign commerce is given
in the same words, and in the same breath, as it were, with
that over the commerce of the States. But the power to
regulate foreign commerce is necessarily exclusive. The
States are unknown to foreign nations ; their sovereignty ex¬
ists only with relation to each other and the general gov¬
ernment. Whatever regulations foreign commerce should
be subjected to in the ports of the Union, the general gov¬
ernment would be held responsible for them; and all other
regulations but those which Congress had imposed would be
regarded by foreign nations as trespasses and violations of
national faith and comity. But the language which grants
the power as to one description of commerce grants it as to
all; and, in fact, if ever the exercise of a right or acquies¬
cence in a construction could be inferred from contempora¬
neous and continued assent, it is that of the exclusive effect
of this grant."
These opinions and many others not necessary to cite
demonstrate that the powers delegated to Congress for, and
which it may constitutionally exercise in the regulation of
international commerce, are identical with the powers dele¬
gated to Congress for, and which it may constitutionally
exercise in the regulation of interstate commerce, no greater,
no less, nor different.
II
The Power of Congress Exclusive.
A particular or distinct and substantive power, the whole
and every, part of which is delegated by the Constitution to a
designated department or officer of the government, cannot
"be redelegated to nor exercised by a State, nor be devolved
upon nor exercised by any other department or officer of the
government in any event or for any purpose. The power
"to regulate commerce with foreign nations, and among the
several States," is a separate, distinct and substantive power,
the whole and every part of which is by the Constitution
unconditionally and without reservation or limitation dele¬
gated to Congress, and hence cannot be redelegated to nor
exercised by a State, nor be devolved on nor exercised by any
other department or officer of the government in any event
•or for any purpose. This was held in re Hayburn's Case,
2 Dall., 409 ; also by Chief Justice Taney, in United States
vs. Ferreira, 13 How., 44, 45, and in U. S. vs. Todd, ap¬
pended as a note to the opinion of the Chief Justice in Fer-
reira's Case, at page 52. Chief Justice Marshall, in Gibbons
vs. Ogden, 9 "Wheaton, 209, thus speaks : "It has been con¬
tended by the counsel for the appellant that, as the word 'reg¬
ulate' implies in its nature full power over the thing to be
regulated it excludes, necessarily, the action of all others that
would perform the same operation on the same thing. That
regulation is designed for the entire result, applying to those
parts which remain as they were, as well as to those which
are altered. It produces a uniform whole, which is as much
disturbed and deranged by changing what the regulating
power designs to leave untouched as that on which it has
operated. There is great force in this argument, and the
■conrt is not satisfied that it has been refuted."
So by Mr. Justice Field, in Welton vs. Missouri, 9i_U. S.,
280, "Where the subject to which the power applies is na¬
tional in its character, or of such a nature as to admit of uni-
12
formity of regulation, the power is exclusive of all State
authority. It will not be denied that that portion of com¬
merce with foreign countries and between the States which
consists in the transportation and exchange of commodities
is of national importance and admits and requires uniformity
of regulation. The very object of investing this power in
the General Government was to insure this uniformity
against discriminating State legislation."
In Field vs. Clark, 143 U. S., 649, Mr. Justice Harlan,
speaking for the Court, says : "That Congress cannot del¬
egate legislative power to the President is a principle uni¬
versally recognized as vital to the integrity and maintenance
of the system of government ordained by the Constitution.
The Act of October i, 1890, in the particular under con¬
sideration is not inconsistent with that principle. It does
not, in any real sense, invest the President with the power
of legislation." Chief Justice Fuller and Mr. Justice Lamar,
in a dissenting opinion, say : "The Chief Justice and myself
concur in the judgment just announced. But the proposition
maintained in the opinion, that the third section, known as
the 'Reciprocity Provision,' is valid and constitutional legis¬
lation does not command our assent. * * * We think
that this particular provision is repugnant to the first section
of the first article of the Constitution of the United States,
which provides that 'all legislative powers herein granted
shall be vested in a congress of the United States, which
shall consist of a senate and a house of representatives.' That
no part of this legislative power can be delegated by Con¬
gress to any other department of the government, executive
or judicial, is an axiom in constitutional law and is univer¬
sally recognized as a principle essential to the integrity and
maintenance of the system of government ordained by the
Constitution. The legislative power must remain in the
organ where it is lodged by that instrument."
13
Summary Restatement.
The preceding authorities establish these propositions :
1. The subjects of interstate commerce in transit are iden¬
tical in character and kind with the subjects of international
commerce in transit; they are the persons and property
transported.
2. The subjects of interstate commerce in transit, the
power to regulate which is delegated to Congress, are iden¬
tical in character and kind with the subjects of international
commerce in transit, the power to regulate which is dele¬
gated to Congress. They are the instrumentalities, vehicles,
appliances, agencies, equipments, facilities, means, and con¬
veniences used or employed by the carrier in furthering the
persons and property by him transported to their ultimate
destination, including signals and rules to be observed by
him or his employees en route.
3. The objects sought to be subserved by the regulation
of interstate commerce in transit are identical with the ob¬
jects sought to be subserved by the regulation of interna¬
tional commerce in transit, namely, the safety and comfort
of persons and live freights, and the safety of the property
transported.
4. The powers delegated to Congress for, and which it
may constitutionally exercise in, the regulation of interstate
commerce in transit, are identical with the powers delegated
to that department for, and which it may constitutionally
exercise in the regulation of international commerce in
transit.
5. The power delegated to Congress to regulate commerce
with foreign nations and among the several States is exclu¬
sive and cannot be redelegated to nor. exercised by a State,
nor be devolved upon or exercised by any other department
or officer of the government in any event or for any purpose.
14
Argument.
II. In one and the same sentence, in the same words, "in
the same breath, as it were," equal and the same power is
delegated Congress to regulate both commerce with foreign
nations and among the several States. "It has, we believe,,
been universally admitted," says Chief Justice Marshall
(supra), "that these words comprehend every species of
commercial intercourse between the United States and for¬
eign nations. No sort of trade can be carried on between
this country and any other to which this power does not ex¬
tend. It has been truly said that commerce, as the word is
used in the Constitution, is a unit, every part of which is in¬
dicated by the term. If this be the admitted meaning of the
word, in its application to foreign nations, it must carry the
same meaning throughout the sentence," that is, it must carry
the same meaning and embrace the same subjects and objects
of regulation in its application to interstate commerce which
it carries and embraces in its application to international com¬
merce. It necessarily follows, then, that if the power is not
delegated to Congress to prescribe the compensation which
carriers shall charge for their services in transporting inter¬
national commerce, power is not delegated Congress to pre¬
scribe the compensation which carriers shall charge for
their services in transporting interstate commerce.
Thus, divested of all collateral matters calculated to con¬
fuse the issue, the simple question is presented: Does the
Constitution delegate to Congress the power to prescribe
the compensation which common carriers of international
commerce shall charge for their services in transporting it?
The original Confederacy was a League of sovereign
States. In disposing of their powers on reconstructing the
Union, they delegated to the new government all those of a
character international in their relations to and intercourse
with outside nations, all those of a character international
IS
in their relations to and intercourse with each other, and all
those necessary to enable the central government, as supreme
arbiter, to guarantee to each a government republican in
form, the enjoyment by the citizens of each State of the priv¬
ileges and immunities of citizens in the several States, and
the observance by each State of its obligations entered into
by the adoption of the Constitution ; renounced other powers
not delegated to the government and reserved the residuum.
Under the tenth amendment to the Constitution, which or¬
dains that "the powers not delegated to the United States by
the Constitution, nor prohibited by it to the States, are re¬
served to the States respectively or to the people." It was
held by Mr. Justice McLean, speaking for the Court, in
Smith vs. Turner, 7 How., 399, that "federal authority is
void when exercised beyond its constitutional limits," and
that "the States cannot be held to have parted with any of
the attributes of sovereignty which are not plainly vested in
the Federal Government either expressly or by necessary im¬
plication." It was contended in Gibbons vs. Ogden, 9
Wheaton, 187, that, as the States were severally sovereign
when the Constitution was framed, that instrument must be
strictly construed, and the States be held not to have parted
with any of their powers not expressly delegated. Replying
to this, Chief Justice Marshall, for the Court, said : "Refer¬
ence has been made to the political situation of these States,
anterior to its formation. It has been said that they were
sovereign, were completely independent, and were connected
with each other only by a league. This is true. But, when
these allied sovereigns converted their league into a govern¬
ment, when they converted their congress of ambassadors,
deputed to deliberate on their common concerns, and to rec¬
ommend measures of general utility, into a legislature em¬
powered to enact laws on the most interesting subjects, the
whole character in which the States appear underwent a
i6
change, the extent of which must be determined by a fair
consideration of the instrument by which that change' was
effected. This instrument contains an enumeration of pow¬
ers expressly granted by tlie people to their government.
It has been said that these powers ought to be construed
strictly. But why ought they to be so construed ? Is there
one sentence in the Constitution which gives countenance to
this rule ? In the last of the enumerated powers, that which
grants, expressly, the means for carrying all others into ex¬
ecution, Congress is authorized 'to make all laws which shall
be necessary and proper' for the purpose. But this limitation
on the means which may be used is not extended to the
powers which are conferred, nor is there one sentence in the
Constitution which has been pointed out by the gentlemen
of the bar, or which we have been able to discern, that pre¬
scribes this rule. We do not, therefore, think ourselves
justified in adopting it. What do gentlemen mean by a
strict construction? If they contend only against that en¬
larged construction, which would extend words beyond their
natural and obvious import, we might question the appli¬
cation of the term, but should not controvert the principle.
If they contend for that narrow construction which, in sup¬
port of some theory not to be found in the Constitution,
would deny to the government those powers which the words
of the grant, as usually understood, import, and which are
consistent with the general views and objects of the instru¬
ment ; for that narrow construction, which would cripple the
government and render it unequal to the objects for which it
is declared to be instituted, and to which the powers given,
as fairly understood, render it competent; then we cannot
perceive the propriety of this strict construction, nor adopt
it as the rule by which the Constitution is to be expounded."
The limitation referred to is Clause i8, of Section 8, which
ordains that "The Congress shall have power to make all
laws which shall be necessary and proper for carrying into
17
execution the foregoing powers," etc. That to regulate com¬
merce with foreign nations and among the several States,
is among "the foregoing powers" referred to, being Qause
3, of Section 8.
It is not claimed by any, nor can it seriously be, that the
power to presoibe the compensation which carriers shaU
charge for transporting international commerce is delegated
to Congress in express terms. Is or can its delegation be
implied? It cannot, unless the power to prescribe the car¬
rier's compensation is "necessary or proper to carry into exe¬
cution" the "substantive and indepaident power" expressly
delegated to regulate commerce with foreign nations. ' Is
the power to prescribe this compensation either naxssary or
appropriate to the r^ulation of such commerce? His com¬
pensation is not commerce nor a subject of commercial trans¬
portation, for it is not a person nor a thing transported by
him. It is not a subject of commercial regulation, for it is
not a vessel, nor a vdiicle, nor sa agen^, nor an instrumen¬
tality, nor a means, nor a facility, nor a convenience used or
employed by the carrier in furthering the person or prc^erty
him transported to their destination. It is not an object
sought to be subserved by any commercial regulation, for
it is neither an appliance to be supplied, nor an ^uipment
to be provided, nor a rule of conduct to be observed by him
for the safely or comfort of passengers or living freights, or
for the safety of property in transit. Neither the exorbit¬
ance nor the reasonableness nor any rate of his compensation
can increase, diminish, or avert the perils or discomforts or
hazards of the voyage. Hence, the delegation of the power
to prescribe the carrier's «anpensatîon is not nor can be im¬
plied as either necessary or appropriate to, nor can it be ap¬
plied in the execution of the power to regulate commerce;
with foreign nations.
This conclusion is confirmed by the fact that during more-
than a century's existence of the government it never oo~
i8
currecl to the earlier statesmen who administered it that the
power to prescribe the compensation of carriers for their ser¬
vices in transporting international commerce was either nec¬
essary or appropriate for the execution of the power ex¬
pressly given to regulate it, for among the countless rules
and regulations by them from time to time provided therefor,
that of prescribing the compensation of carriers does not
appear.
What is true of commerce with foreign nations is equally
true of commerce among the several States. "It has been
truly said," observed Chief Justice Marshall, in Gibbons vs.
Ogden (supra), "that commerce, as the word is used in the
Constitution, is a unit, every part of which is indicated by
the term. If this be the admitted meaning of the word, in
its application to foreign nations, it must carry the same
meaning throughout the sentence;" that is, it must carry the
same meaning and embrace the same subjects and objects
of regulation in its application to interstate commerce which
it carries and embraces in its application to international
commerce. Hence, as the delegation to Congress of power
to prescribe the compensation of carriers for their services
in transporting international commerce is not nor can be im¬
plied as necessary or appropriate to the execution of the
power expressly given to regulate it, the delegation to Con¬
gress of power to prescribe the compensation of carriers for
their services in transporting interstate commerce is not nor
can be implied as necessary or appropriate to the execution
of the power expressly given to regulate it. The compensa¬
tion of an interstate carrier is not commerce any more than
is the compensation of an international carrier, nor is it a
subject of interstate transportation, for it is neither a person
nor a thing transported by him. It is not a subject of com¬
mercial regulation, for it is not a road wagon, nor a stage
coach, nor a watercraft, nor a railway or a railway train, nor
19
a vehicle of any kind, nor an agency, nor an instrumentality,
nor a means, nor a facility, nor a convenience used or em¬
ployed by the carrier in furthering the subjects of commerce,
the persons and property by him transported to their desti¬
nation. It is not an object sought to be subserved by any com¬
mercial regulation, for it is not an appliance to be employed,
nor an equipment to be provided, nor a rule of conduct to
be observed by the carrier for the safety or comfort of the
persons or property in transit. Neither its exorbitance, nor
its reasonableness, nor the gratuitous rendering of the ser¬
vice can increase or diminish or avert the perils, or discom¬
forts or hazards of transportation. Hence, the delegation to
Congress of power to prescribe the compensation'of inter¬
state carriers cannot be implied as either necessary or
proper for carrying into execution the substantive, inde¬
pendent, and expressly delegated power to regulate com¬
merce among the several States.
It has been judicially determined by the U. S. Supreme
Court that the legislatures of the several States have power to
prescribe the compensation which the carriers of internal
State commerce shall charge for their services; from which
it is assumed that Congress is empowered to prescribe the com¬
pensation of carriers for transporting interstate commerce.
This assumption is not warranted. The question is not whether
among the powers reserved by the Constitution to the several
States is that of prescribing the compensation of the carriers
of internal State commerce, but whether the States have del¬
egated to Congress, either expressly or by necessary impli¬
cation, the power to prescribe such compensation for the car¬
riers of international or interstate commerce. It does not
follow that because a power has been reserved to and may be
exercised by the several States over a particular subject, the
like power has been delegated to and may be exercised by
Congress over a kindred subject. The one is in no degree
dependent on the other. The powers which Congress may
20
exercise are derived from the Federal Constitution, not from
the constitutions of the several States, and a power not ex¬
pressly or by necessary implication delegated to Congress
by the Federal Constitution cannot be exercised by it over
any subject for any purpose.
Congress Cannot Delegate Its Power,
But assuming that Congress is empowered to prescribe
the future rates of compensation which interstate and inter¬
national carriers shall charge, can it delegate the power to
"a tribunal inferior to the Supreme Court," or to "an ad¬
ministrative Board or Commission?" The character of an
official tribunal is determined by the nature of the powers
which it may constitutionally exercise or functions perform,
and not by the name it may be given. Ascertaining and
determining the reasonableness or unreasonableness of ex¬
isting rates of compensation charged by such carriers is the
exercise of judicial power. Prescribing future rates of com¬
pensation which such carriers shall charge is the exercise of
legislative power. In Interstate Commerce Commission vs.
Cincinnati N. O. & T. P. Ry. Co., 167 U. S., Mr. Justice
Brewer, on page 505, said : "The power to prescribe a tarifif
of rates for carriage by a common carrier is a legislative and
not an administrative or judicial function," and, in the sylla¬
bus, "The powers of the Interstate Commerce Commission
are judicial and administrative, but not legislative."
Neither department of the government can exercise a
power not delegated to it by the Constitution. By that in¬
strument it is ordained that "all legislative powers herein
granted shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Representa¬
tives." No authority is granted to that body in or by any
clause of the Constitution to sub-delegate or sublet for any
21
purpose any part of the legislative power so exclusively
vested in it, either to a State, or to any other dq)arbnent or
officer of the government, or to any person or tribunal.
Hence, no power having been granted Congress by the Con¬
stitution to sub-delegate or sublet to another any part of the
legislative power so exdusivdy v^ted in it, any exercise by
another of such undelegated power is and of necessity must
be void. Smith vs. Turner, 7 How. {supra). It cannot
sublet legislative power to the Interstate Commerce Commis¬
sion for this further reason : That Commission is a judicial
tribunal and its Commissioners are judicial officers of the
govemmait, and Congress cannot delegate legislative power
to any other deparfment or oflScer of the govemmait, either
executive or judicial. Field vs. Clark, 143 U. S., 649
(supra). Also in re Haybum's Case, 2 Dall., 40g, and U.
S. vs. Ferreira, 13 How., 44, 45 (supra). So in Kilbourn
vs. Thompson, 103 U. S., 190, it vms said by Mr. Justice
Miller, Chief Justice Waite concurring: "It is believed to
be one of the chief merits of the American systœi of writtai
constitutional law that all the powers intrusted to govern¬
ment, whether State or national, are dividdl into three
grand departments, the executive, the legislative, and the
judicial. That the functions appropriate to each of these
branches of government shall be vested in a separate body of
public servants, and that the perfection, of tíie system re¬
quires that the lines whidi separate and divide these depart¬
ments shall be broadly and clmrly defined. It is also essen¬
tial to the successful working of this system that the persons
intrusted with power in any of these brandies shall not
be permitted to encroach upon the powers œidided to the
others, but that each shall by the law of its creation be lim¬
ited to the exercise of the powers appropriate to its own
department and no other. * * * In the main that in¬
strument, the model on which are constructed the funda-
22
mental laws of the States, has blocked out with singular pre¬
cision, and in bold lines, in its three primary articles, the allot¬
ment of power to the executive, the legislative, and the judi¬
cial departments of the government. It also remains true,
as a general rule, that the powers confided by the Constitu¬
tion to one of these departments cannot be exercised by
another."
"It may be said that these are truisms which need no rep¬
etition here to give them force. But while the ejqjerience of
almost a century has in general shown a wise and commend¬
able forbearance in each of these branches from encroach¬
ments upon the others, it is not to be denied that such at¬
tempts have been made, and it is believed not always without
sucxess. The increase in the number of States, in their |K5p-
ulation and wealth, and in the amount of power, if not in its
nature to be exercised by the Federal Government, pressits
powerful and growing temptations to those to whom that
exercise is intrusted to overstep the just boundaries of their
own department and enter upon the domain of one of the
others or to assume powers not intrusted to either of them."
By the foregoing and many other adjudirations of the U.
S. Supreme Court, the familiar citation from Cooley's Con¬
stitutional Limitations, page 103, yth Ed., is abundantly
justified. That ominrait author and jurist says: "One of
the settled maxims in constitutional law is that the power
œnferred upon the legislature to make laws cannot be dele¬
gated by that department to any other body or authority.
Where the sovereign power of the State has located the
authority, there is must remain; and by the constitutional
agency alone the laws must be made until the Constitution
itself is dianged. The power to whose judgment, wisdom,
and patriotism this high prerogative has been intrusted can¬
not relieve itself of tíie responsibility by choosing other
agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other
23
body for those to which alone the people have seen fit to con¬
fide this sovereign trust."
From the foregoing the conclusion is compelled:
1. The power of Congress to regulate commerce with
foreign nations, and among the several States, do^ not in¬
clude power to prescribe the compensation of carriers for
their services in transporting either international or inter¬
state commerce.
2. If it did, no authority having been granted Congress
to sublet to another any part of the legislative power ex¬
clusively vested in it, that body cannot sub-delegate the
power to any other department, officer, tribunal, or official
Board.
f
Compensation for Use and Serwces.
III. The conclusion has this further support. Wharves,
locks in improved rivers, canals, bridges, etc., constructed
and maintained under, grant of authority from tlie State
and used in coimœtion wiüi the transit of commerce, are
quasi public institutions in the same sense that railways con¬
structed and maintained by like authority and used in the
transit of commerce, are quasi public institutions. But
compulsation charged as tolls, or wharfage, for the use of
such instrumentalities in connection with the transit of in¬
ternational or interstate" commerce, has never been rö:og-
nized or dealt with by Congress as a subject of commercial
regulation. In Smith vs. Turner, 7 How. 403, it was, con¬
tended that Congress, "under, the power to regulate com¬
merce among the several States, can impose a tax .for the
use of canals, railroads, turnpike roads, and bridges con¬
structed by a State, or its citizens." Replying to this, Mr.
Justice McLean said : "I answer, that Congress has no such
power. The United States cannot use any one of these
24
works without paying the customary tolls. The tolls are
imposed, not as a tax, in the ordinary sense of that term,
but as compensation for the increased facility afforded by
the improvement."
The Mississippi, Ohio, and Illinois rivers are public high¬
ways. Under authority from the State of Iowa, the city
of Keokuk constructed and maintained a wharf on the
Missssissippi, charging wharfage for its use. In Packet
Co. vs. Keokuk, 95 U. S., 80, Mr. Justice Strong, speaking
for the Court, thus said; "The question presented by the
record of this case is, whether a municipal corporation of
a State, having by the law of its organization an exclusive
right to make wharves, collect wharfage, and regulate rates,
can, consistently with the Constitution of the United States,
charge and collect wharfage proportioned to the tonnage of
the vessels from the owners of enrolled and licensed steam¬
boats mooring and landing at the wharves constructed on
the banks of a navigable.river. The city of Keokuk is such
a corporation, existing by virtue of a special charter granted
by the legislature of Iowa. * * * ^ charge for
services rendered or for conveniences provided is in no
sense a tax or a duty." So under authority from the State
of Missouri, the city of St. Louis constructed and main¬
tained a wharf on the Mississippi, charging wharfage for
its use. In Packet Co. vs. St. Louis, 100 U. S. 423, "Action
was instituted to compel the repayment of the sums col¬
lected" (from the Packet Company) "upon the grounds,"
among others, "that the ordinance in question was in con¬
flict * * * clause conferring upon Con¬
gress the right to regulate commerce with foreign nations,
and among the several States." In determining the ques-'
iton, Mr. Justice Harlan, speaking for the Court, said:
"A municipal corporation, owning improved wharves and
other artificial means which it maintains, at its own cost, for
25
the benefit of those engaged in commerce upon the public
navigable waters o,f the United States, is not prohibited by
the Constitution of the United States from charging and
collecting from parties using its wharves and facilities such
reasonable fees as will fairly remunerate it for the use of
the property." To the same effect is Transportation Co.
■vs. Parkersburg, 107 U. S. 691.
The legislature of Illinois authorized the improvement of
the Illinois river by the construction of dams and locks;
created a Board of Canal Commissioners, "and invested it
with authority to superintend the construction of the locks
and dams, to control and manage them a.fter their con¬
struction, and to prescribe reasonable rates of toll for the
passage of vessels through the locks. * * * xhe
Commissioners prescribed rates of toll for the passage of
vessels through the locks, the rates being fixed per ton, ac¬
cording to the tonnage measurement of the vessels and the
amount of freight carried." In Huse vs. Glover, 119 U. S.,
544, the Complainant, who was engaged in both interstate
and international commerce on the river, instituted pro¬
ceedings to enjoin the Commissioners from levying and
collecting tolls for the passage through the locks. In de¬
termining the case, Mr. Justice Field, for the Court, said:
"The exaction of tolls ;for the passage through the locks
is as compensation for the use of the artificial facilities con¬
structed, not as an impost upon the navigation of the
stream. * * * por outlays caused by such works the
State may exact reasonable tolls. They are like charges
for the use of wharves and docks constructed to facilitate
the landing of persons and freight, and the taking them
on board, or for the repair of vessels. The State is inter¬
ested in the domestic as well as in the interstate and foreign
commerce conducted on the Illinois river, and to increase
its facilities, and thus augment its growth, it has full
26
power. It is only when, in the judgment of Congress, its
action is deemed to encroadi upon the navigation of the
river as a means of interstate and foreign commerce, tiiat
tJiat body may interfere and control or supersede it. If, in
the opinion of the State, greater benefit would result to
her commerce by the improvements made, than by leaving
the river in its natural state—and on that point the State
must necessarily determine for itself—it may authorize
tliem, although increased inconvenience and expense may
thereby result to the business of individuals. The private
inconvenience must yield to the public good. The opening
of a iieza highway, or the improvement of an old one, the
building of a railroad, and many other works, in which the
public is interested, may materially diminish business in
certain quarters and increase it in others; yet, for the loss
resulting, the sufferers have no legal ground of complaint.
How the highways of a State, whether on land or by water,
shall be best improved for the public good is a matter for
State determination, subject always to the right of Con¬
gress to interpose in the cases mentioned." Citing Packet
Co. vs. Keokuk, 95 U. S. 80, 84, and quoting therefrom,
the opinion proceeds: "The court held," (in that case), "a
charge for services rendered, or for conveniences provided,
is in no sense a tax or a duty."
The preceding cases, beginning with that of Packet Co.
vs. Keokuk, 95 U. S., were all decided before the Interstate
Commerce Commission was created, and while Chief Jus¬
tice Waite was still on the bench. From them the conclu¬
sion is compelled, that compensation for servte raidered
or the use of artificial facilities furnished, was never re¬
garded by Congress as a subject of commercial regulation,
or dealt with as such by the legislative department of the
government. Compensation charged for services rendered
by the proprietors of a railway is not distinguishable in
27
principle from compensation for services rendered in the
pasage of vessels through the locks of the Illinois river.
Unreasonable and Discriminating Rates.
IV. Is the government, then, without power to prevent
carriers by railway from charging exorbitant, unreasonable,
or discriminating rates of compensation for their services
in transporting international or interstate commerce? Not
at all. On the contrary its power is plenary, and the remedy
it may administer is ample, effectual, and prompt. The
common law condemned unreasonable and discriminating
charges by common carriers for their services, and furn¬
ished a complete remedy therefor, before the Federal Con¬
stitution was framed or its government established. For
unlawful contracts, combinations, and conspiracies in re¬
straint of commerce and competition, the common law fur¬
nishes no remedy; but for unreasonable and discriminating
charges by carriers, its remedy is complete. In Transpor¬
tation Co. vs. Parkersburg, 107 U. S. 699, Mr. Justice
Bradley, for the-Court, said: "It" (the prohibition of ton¬
nage duties) "has nothing to do with wharfage, which is
a charge against a vessel for using or lying at a wharf or
landing. The one is imposed by the government, the other
by the owner of the wharf or landing. The one is a com¬
mercial regulation, dictated by the general policy of the
country upon consideration having reference to its com¬
merce or revenue; the other is a rent charged by the owner
of the property for its temporary use. It is obvious that
since a wharf is property, and wharfage is a charge or rent
for its temporary use, the question whether the owner de¬
rives more or less revenue from it, or whether more or less
than the cost of building and maintaining it, or what dis¬
position he makes of such revenue, can in no way concern
those who make use of the wharf and are required to pay
28
the regular charges therefor; provided, always, that the
charges are reasonable and not exorbitantand, at page
695, "When the question is one o,f reasonable or unreason¬
able wharfage, we know what to do with it. It is a ques¬
tion known to the laws; and the modes of redress for un¬
reasonable wharfage are fixed and settled." The same rule
applies to unreasonable and discriminating charges by com¬
mon carriers, on which point the decisions are many and
uniform.
In Reagan vs. Farmers' Loan & Trust Co. 154 U. S.
1054, (Nat'l. Reporter System), Mr. Justice Brewer, for
the Court, said : "It is doubtless true, as a general proposi¬
tion, that the formation of a tariff of charges for the trans¬
portation by a common carrier of persons or property, is
a legislative or administrative, rather than a judicial, func¬
tion. Yet it has always been recognized that, if a carrier
attempted to charge a shipper an unreasonable sum, the
courts had jurisdiction to inquire into that matter, and tq
award to the shipper any amount exacted from him in ex¬
cess of a reasonable rate, and also, in a reverse case, to ren¬
der judgment in favor of the carrier for the amount found
to be a reasonable charge. The province of the courts is
not changed, nor the limit of judicial inquiry altered, be¬
cause the legislature, instead of the carrier, prescribes the
rates. * * * xhe question of the reasonableness of a
rate of charge for transportation by a railroad company,
involving, as it does, the element of reasonableness, both
as regards the company and as regards the public, is emi¬
nently a question for judicial investigation, requiring the
process of law for its determination."
A railroad company has no right to discriminate in its
freight charges in favor of a shipper, and, if it does, it is
liable in damages to any person injured by such discrimi¬
nation.
29
Hays vs. Pennsylvania, 12 Fed. 309.
Discriminations in the rates of freight charged by a
railroad company to shippers, based solely on the amount
of freight shipped, without reference to any conditions
tending to decrease the cost of transportation, are discrimi¬
nations in favor of capital, are contrary to sound public
policy, violative of that equality o,f rights guaranteed to
every citizen, and a wrong to the disfavored party, for
which he is entitled to recover from the railroad company
the amount of freight paid by him in excess of the rates
accorded by it to his most favored competitor with interest
on such sum. lb. 309.
A railroad company cannot bind itself to deliver to a par¬
ticular stockyard all live stock coming over its line to a cer¬
tain point, but it is bound to transport over its road and de¬
liver to all stockyards at such point reached by its track or
connections, all live stock consigned or which the shippers de¬
sire to consign to them, upon the same terms and in the same
manner as under like conditions it transports and delivers
to their competitors ; and the performance of this duty may
be compelled by injunction at the suit of the proprietor of the
stockyard discriminated against. McCoy vs. Cincinnati,
I. St. L. & C. Ry. Co., 13 Fed., 3.
Where there are two rival lines of steamboats on a river
plying between the same points and carrying freight for
hire, both bearing the same relation to a railway company
and both seeking its services to forward their freight to the
same points of destination, and the company systematically
discriminates against one by charging 50 cents a hundred
more for freight than the other, it is liable in damages at
the suit of the line so discriminated against, notwithstanding
that the higher rate is not an unreasonable charge. Samuels
vs. Louisville & N. R. Co., 31 Fed., 57.
30
Discriminations by railroad companies in freight rates,
based solely on the amount of freight shipped, are un¬
warrantable. Kingsley vs. Buffalo, N. Y. & P, Ry Co.,
37 Fed. i8i (C. C.).
A contract by which a railroad company agrees to charge
a rate o,f not less than $2.40 per ton to all persons shipping
less than 100,000 tons of coal per annum over its road,
and to make a rate of $1.60 per ton to all shippers shipping
100,000 tons or over, is void; the discrimination being so
gross as to be contrary to public policy. Burlington C. R.
& N. Ry. Co. (C. C.), 31 Fed., 652.
Although there is no limit of rate charges in its charter,
a railroad company can only charge a reasonable rate, de¬
pendent upon the nature of the goods. Cambios vs. Phila¬
delphia R. R. Co., Fed. Cas., No. 2,331.
The rule forbidding unreasonable freight charges and
unjust discriminations being a common law rule, railway
companies, by accepting their charters, take them with such
implied limitation upon the power granted in general terms
to establish their freight rates. > Chicago & A. R. Co. vs.
People, 67 111. II, 16.
A rebate secretly paid by a common carrier to certain
shippers being an unjust discrimination against others ship¬
ping the same class of goods under the same conditions at
the regular rate without rebate, is illegal at common law.
Cook vs. Chicago R. I. & P. Ry. Co., 81 Iowa, 551.
While the power of a railroad company to adjust its tar¬
iff of charges is one essential to the enjoyment of its fran¬
chises, the company, regardless of a statute, will be respon¬
sible for its breach o,f duty as a common carrier in charg¬
ing exorbitant rates or in making unjust discriminations.
Sloan vs. Pacific R. R. Co., 61 Mo. 24.
A carrier at common law cannot discriminate between
persons engaged in the express business, but must furnish
31
equal facilities to all persons on the same terms. McDuf-
fee vs. Portland & R. R. Co., 52 N. H. 430.
When cars loaded with railroad ties are shipped from
the same station, the same number of ties being in each
car, and nothing appearing by whicli the cost to the com¬
pany could be more for shipping one car than anoüier, a
discrimination by the company, 1^ which one shinier is
charged $14.00, and all the others $24.00 per car after a
certain date, before which all shipments were $14.00 per
car, is unreasonable, and it is immaterial that the shipper
in whose favor the discrimination is made ships more cars
than any of the others. Louisville E. & St. L. Consol. R.
Co,. 132 Ind. 517.
Where a lower rate^"s given by such corporation (a rail¬
way carrier) to a favored shipper, which is intended to
give, and necessarily gives, an exclusive monoply to the
¡favored shipper, affecting the business and destroying the
trade of other shippers, the latter have the right to r^uire
an equal rate for all under like circumstances. Where such
corporation, as a common carrier, in consideration of the
fact that a shipper furnished a greater quantity of freights
than other shippers during a given term, agree to make a
rebate on the published tariff m such freights to the preju¬
dice of the other shii^ers of like freights under the same
circumstances, such a contract is an unlawful discrimination
in favor of the larger shipper, tending to create monoply,
destroy competition, injure, if not destroy, the business of
smaller operators, contrary to public policy, and will be de¬
clared void at the instance of parties injured thereby.. Such
a contract of discrimination cannot be upheld simply be¬
cause the favored shipper may ¡furnish for shipment dur¬
ing the year a larger freightage in the aggregate than any
other shipper, or more than all others combined. A dis¬
crimination resting exclusively on such a basis will not be
32
sustained. Although a court will ordinarily look to the in¬
terest of a common carrier as an element in the case when
a contract with him relating to freightage is attempted to
be upheld or set aside, such a contract will not be sustained
by the courts simply because the business to be done under
it is "largely profiitable" to him. Where it appeared that
the plaintiffs' business was such as to make them frequent
shippers, and that a continuous series of shipments was
necessary in conducting their business, and that a remedy
sought by actions at law would lead to a multiplicity of
suits, the court will intervene by injunction to prevent a
multiplicity of suits, and it is not a prerequisite that the
plaintiffs should have first established their rights by an ac¬
tion at law. Where a defendant railroad company is a corpo¬
ration, consolidated under the statutes of several States, in-
including this State, and its road extends into several
States, its action of injurious discrimination committed or
threatened in this State to the business of shippers, either
here or along the line of its railroad, may be enjoined by
the courts of this State. Scofield vs. Lake Shore & M.
S. Ry. Co., 43 O. St. 571.
While the common law, as before stated, furnishes no
remedy for the evil of unlawful combinations and con¬
spiracies in restraint of trade and competition, commonly
called "Trusts," its remedy and that of chancery, as they
existed when the government was established, are recog¬
nized and applied both by the Federal and the State courts
as plenary, ample, and effectual to repress the evils of un¬
reasonable, exorbitant and discriminating charges by com¬
mon carriers.
The Carrier's Right to a Day in Court Indefeasible.
V. No citizen who intrusts international or interstate
commerce to a common carrier, to be transported by what-
33
ever kind of vehicle, instrumentality, or craft, can, by any
commercial regulation prescribed by Congress or otherwise,
be denied the right guaranteed to him by the Constitution to
have judicial remedy and redress for exhorbitant, unreason¬
able, or discriminating charges by such carrier. E converso,
no carrier of such commerce can, by any commercial regu¬
lation prescribed by Congress or otherwise, be denied the
right guaranteed to him by the Constitution to have his
day in court, when complained of or proceeded against for
charging exorbitant, unreasonable, or discriminating rates
for its transportation. Article III. of that instrument thus
ordains :
Section I. "The judicial power of the United States,
shall be vested in one Supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish."
Section 2. "The judicial power shall extend to all cases,
in law and equity, arising under this Constitution," or "the
laws of the United States; * * * ^ controversies to
which the United States shall be a party;" * * * io
controversies "between citizens of different States; * * *
and between a State or the citizens thereof, and foreign
States, citizens, or subjects."
"In all cases affecting ambassadors, other public minis¬
ters and consuls, and those in which a State shall be party,
the Supreme Court shall have original jurisdiction. In all
other cases before mentioned, the Supreme Court shall have
appellate jurisdiction, both as to law and fact, with such ex¬
ceptions and under such regulations as the Congress shall
make."
Article I, Section 8, Clause 9: "The Congress shall have
power to constitute tribunals inferior to the Supreme
Court."
34
Amendment V. "No person shall be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without just com¬
pensation."
Amendment VII. "In suits at common law, where the
value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact tried by a
jury shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common
law."
Amendment XL "The judicial power of the United
States shall not be construed to extend to any suit in law
or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by citizens
or subjects of any foreign State."
Amendment XIV. "No State shall make or enforce any
law which shall abridge the privileges or immunities of citi¬
zens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of
law ; nor deny to any person within its jurisdiction the equal
protection of the laws."
Article I, Section 8, Clause i8: "The Congress shall have
power to make all laws which shall be necessary and proper
for carrying into execution the foregoing powers and all
other pozi'crs vested by this Constitution in the Government
of the United States, or in any department or officer
thereof."
Thus by the supreme organic law of the nation, every
shipper, common carrier, or other citizen of any State, hav¬
ing a cause of complaint, legal or equitable, arising under
a law of the United States, or against a citizen of another
State, is guaranteed the constitutional right to have it ju¬
dicially inquired of and determined by due process of law
in some Federal Court of original jurisdiction, a sufficient
35
number of which Congress is under constitutional obliga¬
tion to ordain and establish; of which right he cannot be
lawfully deprived by the United States or any State, nor by
any department, tribunal, commission, or official board of
either. When the complaint challenges a carrier's charges
as unreasonably high or discriminatory, the shipper, or other
person prejudiced, is entitled to demand and have such judi¬
cial inquiry and determination in the proper Federal Court ;
when the complaint challenges the rates of charges pre¬
scribed by Congress or any inferior tribunal or commission
as unreasonably low or confiscatory, it is thé constitutional
right of the carrier to demand and have such judicial in¬
quiry and determination in such Federal Court.
By the fourteenth amendment, the same indefeasible right
is guaranteed to every such person having a cause of com¬
plaint, legal or equitable, arising under a law of any State.
In Reagan vs. Farmers' Loan & Trust Co., 154 U. S.
{supra), the railway commission of Texas prescribed pas¬
senger and freight rates on the International & Great North¬
ern Railroad so unreasonably low as to be practically confis¬
catory of the property. The plaintiff, a mortgagee, chal¬
lenged the rates on this ground in the proper Federal Court.
The commission denied that the Court had or could acquire
jurisdiction of the subject. In disposing of the case, Mr.
Justice Brewer, for the Court, at page 1051, (Nat'l Rep.
Sys.), said: "Where a suit is brought against defendants,
who, claiming to act as officers of the State, and under the
color of an unconstitutional statute, commit acts of wrong
and injury to the rights and property of the plaintiff acquired
under a contract with the State ; such suit, whether brought
to recover money or property in the hands of such defend¬
ants, unlawfully taken by them in behalf of the State, or for
compensation in damages, or, in a proper case, where the
remedy at law is inadequate, for an injunction to prevent
such wrong and injury, or for a mandamus, in a like case.
36
to enforce upon the defendant the performance of a plain,
legal duty, purely ministerial, is not, within the meaning of
the eleventh amendment, an action against the State. * * *
Nor ( p. 1052) can it be said in such a case that relief is ob¬
tainable only in the courts of the State, for it may be laid
down as a general proposition that whenever a citizen of a
State can go into the courts of the State to defend his prop¬
erty against the illegal acts of its officers, a citizen of another
State may invoke the jurisdiction of the Federal Courts to
maintain a like defense. A State cannot tie up a citizen of
another State having property rights within its territory
invaded by unauthorized acts of its own officers, to suits for
redress in its own courts. Given a case where a suit can be
maintained in the courts of the State to protect property
rights, a citizen of another State may invoke the jurisdiction
of the Federal Courts."
Again (p. 1054) : "The body of rates (prescribed by the
Commission) as a whole is challenged by the plaintiff as
unreasonable, unjust, and working a destruction of its rights
of property. The defendant denies the power of the court to
entertain an inquiry into that matter; insisting that the fixing
of rates for carriage by a public carrier is a matter wholly
within the power of the legislative department of the gov¬
ernment and beyond examination by the courts."
"It is doubtless true, as a general proposition, that the
formation of a tariff of charges for the transportation by a
common carrier of persons or property is a legislative or
administrative, rather than a judicial, function. Yet it has
always been recognized that if a carrier attempted to charge
a shipper an unreasonable sum, the courts had jurisdiction
to inquire into that matter, and to award to the shipper any
amount exacted from him in excess of a reasonable rate, and
also, in a reverse case, to render judgment in favor of the
carrier for the amount found to be a reasonable charge.
The province of the courts is not changed, nor the limit of
37
judicial inquiry altered, because the legislature, instead of
the carrier, prescribes the rates. The courts are not author¬
ized to revise or change the body of rates imposed by a leg¬
islature or a commission. They do not determine whether
one rate is preferable to another, or what, under all circum¬
stances, would be fair and reasonable, as between the carriers
and the shippers. They do not engage in any mere adminis¬
trative work. But still there can be no doubt of their power
and duty to inquire whether a body of rates prescribed by
a legislature or a commission is unjust and unreasonable,
and such as to work a practical destruction to rights of prop¬
erty, and, if found so to be, to restrain its operation."
So in Stone vs. Farmers' Loan & Trust Co., ii6 U. S.,
307, 331, in which the right of a State to prescribe maxi¬
mum rates is recognized. Chief Justice Waite said: "From
what has thus been said, it is not to be inferred that this
power of limitation or regulation is itself without limit. This
power to regulate is not a power to destroy, and limitation
is not the equivalent of confiscation. Under pretense of
regulating fares and freights, the State cannot require a rail¬
road corporation to carry persons or property without re¬
ward; neither can it do that which in law amounts to a
taking of private property for public use without just com¬
pensation or without due process of law."
The Granger Cases.
In reply, the Chicago, Burlington and Quincy Railroad
Company vs. Iowa, 94 U. S., 155, and Peik vs. Chicago and
Northwestern Railway Company, 94 U. S., 178, are cited,
in which the Chief Justice had held, on the authority of
Munn vs. Illinois, lb. 134, that, until Congress legislated on
the subject of interstate commerce, the legislature of any
State whose Constitution authorized it, might arbitrarily
prescribe a maximum rate to be charged by carriers of both
State and interstate commerce within its borders, and that
38.
however unreasonable or ruinously low the rate prescribed
the carrier was without remedy or relief otherwise than by
an appeal to the ballot-box or the legislature and procuring-
the maximum to l>e raised or by going out of business.
Modification of This Opinion.
This opinion of the Chief Justice afterwards underwent
great and substantial modification, for he subsequently con¬
curred in Packet Co. vs. Keokuk, 95 U. S., 80; Packet Co.
vs. St. Louis, 100 U. S., 423 ; Packet Co. vs. Catlettsburg,
105 U. S., 559; Transportation Co. vs. Parkersburg, 107
U. S., 691 ; Huse vs. Glover, 119 U. S., 544; and Kilbourn
vs. Thompson, 103 U. S., 168, and himself announced the
opinion in Stone vs. Farmers' Loan & Trust Co., 116 U. S.,
307, 331, which cases are cited supra. These cases sup¬
plemented by Reagan vs. Farmers' Loan & Trust Co., 154 U.
S., 1047, supra, restore and re-establish the ancient rule, that
when a patron commits his person or his property to a car¬
rier to be transported into or beyond another State, it is -with
the implied understanding that the patron will pay and the
carrier will charge only what his service is reasonably worth
quantum meruit vel quantum valebat, any rate prescribed by
the State legislature or by Congress or by the carrier to the
contrary notwithstanding; and that, in case of controversy
between them about the charge, either party may have it
judicially inquired of and determined in some Federal Court
by an original action or proceeding commenced therein,
or on error to or removal from the State court ; and this is
now the firmly established or re-established rule.
The Question Under Consideration.
But if the opinion of the Chief Justice in the Granger
cases had undergone no modification, the points decided
therein have no application to or bearing on the subject of
39
the present discussion. All questions and inquiries respect¬
ing the powers which the State legislatures may respectively
exercise over local State or interstate commerce are foreign
to and without bearing on the present discussion. The ques¬
tion under consideration is, not what powers the State legis¬
lature may exercise over commerce of any kind within its
border in the absence of legislation on the subject by Con¬
gress or otherwise, not whether the legislature of this or that
State may delegate legislative power to a subordinate tribu¬
nal, board, or commisison ; not whether the Supreme Court
has or has not upheld such delegation of legislative power
by the legislature of some State, but does the Constitution
of the United States authorize Congress to sub-delegate
legislative power to any other department or to any inferior
tribunal, official board, commission, or officer, in any case or
for any purpose? If it may sub-delegate to a commission
the power to legislate respecting any one of the subjects enu¬
merated in Section 8, it may sub-delegate to such commis¬
sion the power to legislate respecting each and every subject
enumerated in said section or elsewhere in the Constitution.
The proposition that Congress may sub-delegate to such
commission the power to regulate commerce between the
States and with foreign nations finds no more warrant or
support in the Constitution than does the proposition that
it may sub-delegate to such commission the power to lay and
collect duties, imposts, excises, and direct taxes; or coin
money and regulate the value thereof, and of foreign coin;
or to establish a uniform standard of weights, measures and
values, etc. No distinction between them is discoverable or
possible. They who affirm the authority of Congress to sub-
delegate legislative power in any case ascribe to that instru¬
ment a meaning such as if it read thus :
"All legislative powers herein granted shall be vested in
a Congress of the United States, which shall consist of a
40
Senate and House of Rqpresaitatives provided, however,
that the Congress may in its discretion sub-delegate to any
inferior tribunal, official board, or commission, by it created,
plenary legislative power :
1. To lay and collect taxes, duties, imposts and excises;
2. To borrow money on the credit of the United States;
3. To regulate commerce with foreign nations and among
the several States and with the Indian tribes ;
4. To establish an uniform rule of naturalization and uni¬
form laws on the subject of bankruptcies throughout the
United States ;
5. To coin money, regulate the value thereof, and of for¬
eign œin, and fix the standard of weights and measures;
6. To provide for the punishment of counterfeiting the
securities and current coin of the United States ;
7. To establish postoffices and post roads;
8. To promote the progress of science and useful arts ty
securing for limited times to authors and inventors the ex¬
clusive right to their respective writings and discoveries;
9. To constitute tribunals inferior to the Supreme Court;
10. To ddine and punish piracies and félonie committed
on the high seas and offenses against the law of nations ;
11. To declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and water;
12. To raise and support armies;
13. To provide and maintain a navy ;
14. To make rules for the government and regulation of
the land and naval forces;
15. To provide for calling forth the militia to execute
the laws of the Union, suppress insurrections and repel in¬
vasions;
16. To provide for organizing, arming, and disciplining
the militia, and for governing such part of them as may be
employed in the service of the United States ;
41
17- To exercise exclusive legislation in all cases whatso¬
ever over the District of Columbia * * * and to exer¬
cise like authority over all places purchased by the consent
of the legislature of the State in which the same shall be, for
the erection of forts, magazines, arsenals, dockyards, and
other needful buildings ; and ,
i8. To make all laws whicli shall be necessary and proper
for carrying into execution the foregoing powers and all
other powers vested by this Constitution in the Government
of the United States, or in any department or officer thereof.
The absurdity of the proposition that Congress is author¬
ized to and may sub-delegate to a subordinate board or com¬
mission the power to legislate respecting the eighteen sub¬
jects so enumerated or respecting any one of them rather
than another or all is self-evident on a most casual inspection
of the Constitution. It can no more sub-delegate to such
commission legislative power to regulate commerce with for¬
eign nations and among the several States, and with the In¬
dian tribes, than it can sub-delegate legislative power over
each one or all of the seventeen other subjects of legislation
therein enumerated.
Application of the Foregoing.
VI. In the light of the foregoing, some of the proposed
legislation now pending before Congress will be next ex¬
amined. As House Bill 10099 has some features common to
all the others, its analysis will suffice for all.
I. By its first section all interstate and international com¬
merce reaching its intended destination in any part by rail¬
way transportation is within its operation, while all which
reaches its intended destination by water transportation ex¬
clusively is occluded therefrom. Thus, two cargoes of
Cuban products ascend the Mississippi destined for St. Louis.
At New Orleans one is transshipped and proceeds to its des-
42
tination by rail, tiie other proceeds by water; the former is
included, the latter is excluded. Two cargoes are shipped at
Albany destined to a foreign port. One proceeds down the
Hudson and out to sea by water; the other reaches New
York by railway and is there transshipped. The former is
excluded from the operation of the bill, while the latter is
included, although it does not pass into or through any other
State or Territory of the United States. Two cargoes des¬
tined for Buffalo are shipped at Chicago; one by rail, the
other by the lakes. The former is included, the latter ex¬
cluded. The carriers by water may cut rates or discriminate
at will, while carriers by rail doing either are condemned
and heavily punished. Why this discrimination? Are not
carriers by rail entitled to a square deal and even-handed
justice?
2. Section 5, amending Section i6 of the existing law,
empowers the Commission on complaint and hearing to ad¬
judge and order that a carrier by rail shall respond in dam¬
ages and make reparation in money to the complainant for
past excessive charges, without trial by jury, or the right of
appeal, which is depriving him of property "without due
process of law," for Amendment VII provides that "in
suits at common law where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be pre¬
served, and no fact tried by a jury shall be otherwise re¬
examined in any court of the United States than according
to the rules of the common law." Congress cannot, by any
scheme or device, require a citizen to respond in damages at
the order of a commisison or other authority without jury
trial, and hence every such finding, judgment and order
made by the Commission must of necessity be null and void.
The bill appears to recognize this, for it undertakes to
validate the judgment and order of the Commission by pro¬
viding that "if a carrier does not comply with an order for
the payment of money within the time limit in such order.
43
the complainant or any person for whose benefit such order
was made, may file in the proper circuit court of the United
States * * * on the law side, a petition setting forth
briefly the causes for which he claims damages, and the
order of the Commission in the premises." By this circum¬
locution it must have been intended that, because the car¬
rier in such action at law in the circuit court will be entitled
to demand and have a trial by jury of the same matters of
complaint covered by the finding, judgment and order of the
Commisison, that finding, judgment, and order will be
thereby validated and made regular, for the bill further pro¬
vides that "such suit shall proceed in all respects like other
civil suits for damages, except that the ñndings and order of
the Commission shall be prima facia evidence of the facts
therein stated." The action is brought on and to enforce the
order of the Commission as a valid and subsisting judgment,
for it is expressly provided that the petition in such action
shall set forth "the order of the Commisison in the prem¬
ises;" and then the same order of the Commission on which
the suit is founded, and to enforce which it is brought, is
made prima facie evidence that the facts on which the order
was made are true, and that the complainant is entitled to
recover the amount of the order. Thus Congress by legis¬
lative enactment makes a void order of the Commission a
cause of action in the circuit court, and conimands that the
order shall be prima facie evidence of its validity and of the
complainant's right to recover the amount thereof. This
reverses the manner of conducting trials by jury at common
law, by which the complainant is required to first submit his
evidence, and casts the burden of proof on the defendant, the
carrier, to show himself innocent. If the legislative depart¬
ment, the Congress, has power, by enactment, to make such
order of the Commission prima facie evidence, it may make
the order conclusive evidence of its validity or the correct¬
ness of the findings on which it was made. Because it can-
44
not make the order conclusive evidence it cannot make it
prima facie evidence.
Assuming, however, that Congress has power to do these
things, the same section of the bill further pro¬
vides that "in all such suits (in the circuit court) all
parties in whose favor the Commission may have made
an award for damages by any order may be joined as
plaintiffs, and all of the carriers parties to such order
awarding such damages may be joined as defendants, and
such suit may be maintained by such joint plaintiffs and
against such joint defendants in any district where any one
of such joint plaintiffs could maintain such suit against any
one of such joint defendants. * * * in case of such
joint suit the recovery, if any, may be by judgment in favor
of any one of such plaintiffs, against the defendant found to
be liable to such plaintiff." At common law it is required
that the action be brought by one plaintiff or by several hav¬
ing a joint demand against one defendant or several jointly
liable. The scheme of this bill is that any number of plain¬
tiffs, twenty, fifty, one hundred, or more, no two of whom
have a joint demand, may unite in an action at law against
twenty, fifty, one hundred, or more, carriers as defendants,
no two of whom are jointly liable, in which action each party
is entitled to demand and have due process of law by jury
trial, so that we shall have the anomaly in common law
jurisprudence of a hundred or more verdicts returned by one
and the same jury in one and the same action at law for
money damages, between a hundred or more parties whose
interests and liabilities are several and distinct each from
the other, and this notwithstanding the bill expressly pro¬
vides that "such suit shall proceed in all respects like other
civil suits for damages" at common law. Nor is the action
or suit so provided for limited to citizens of different States,
for all the defendants except one, and all the plaintiffs, may
be citizens of the same State. This revolutionizes the system
45
of common law jurisprudence known to the framers of the
Constitution and provided for in that instrument. With
equal reason it can be affirmed that Congress, in the plenti-
tude of its power, may authorize any number of New York
merchants, no two of whom have a joint claim, to unite in
one action at law against any number of defendants, no two
of whom are jointly liable, and all of whom save one may be
also citizens of New York.
It is impossible for a jury in such case to comprehend and
intelligently consider the multitudinous questions arising in
the course of such a complex trial, or apply the evidence and
render a just verdict between each of the opposing parties.
3. Section 3, amending Section 15, delegates to the Com¬
mission leglislative power "to determine and prescribe what
will in its judgment be the just and reasonable maximum
rate or rates, charge or charges, to be thereafter observed
in such case; and what regulation or practice in respect to
such transportation is just, ,fair and reasonable to be there¬
after followed ; and to make an order that the carrier shall
cease and desist from such violation, and shall not there¬
after publish, demand, or collect any rate for such trans¬
portation in excess of the maximum so prescribed, and shall
conform to the regulation or practice so prescribed;" also
"to establish through routes and maximum joint rates."
In Interstate Commerce Commission vs. Cincinnati, N. O. &
T. P. Ry. Co., 167 U. S., 902, N. R. S., it was determined
that "the power to prescribe a tariff of rates for carriage
by a common carrier is a legislative, and not an administra¬
tive or judicial function." That Congress is without author¬
ity to delegate legislative power to any other department,
tribunal, commission, or officer, has already been shown,
but will be further considered later.
The bill, recoginzing the impotency of the Commission's
order prescribing maximum future rates, then provides
46
that "if any carrier fails or neglects to obey any order of
tlie Commission, other than for the payment of money,
while the same is in efïect any party injured thereby, or
the Commission in its own name, may apply to the circuit
court in the district where such carrier has its principal
office, or in which the violation or disobedience of such
order shall happen for an enforcement of such order. Such ap¬
plication shall be by petition, which shall state the substance
of the order and the respect in which the carrier has failed
of obedience. * * * upon such hearing as the court
may determine to be necessary, it appears that the order
was lawful and was made and duly served, and that the
carrier is in disobedience of the same, the court shall
enforce obedience to such order by a writ of injunction, or
other proper process, mandatory or otherwise, to restrain
such carrier, its officers, agents, or representatives, from
further disobedience of such order, or to enjoin upon it,
or them, obedience to the same."
Whatever legislative power constitutionally prescribes,
is the supreme law of the land, and, as such, is "lawful."
Its reasonableness, expediency, or policy is not the subject
of judicial inquiry, nor a ground for its judicial annulment.
The only unlawfulness for which an expression of legisla¬
tive will can be judicially annulled, is the absence of con¬
stitutional authority to express it.
If the Commission be invested with legislative power to
authoritatively prescribe the rates of charges by carriers,
its order prescribing them will be the supreme law of the
land, and, as such, lawful. The reasonableness or un¬
reasonableness of the rates so prescribed cannot be the sub¬
ject of judicial inquiry nor a ground for declining to
judicially confirm it. The only unlawfulness for which
the court can decline to judicially confirm and enforce any
order of the Commission prescribing maximum rates, is
47
want o,f legislative power in the Commission to prescribe
them, and therefore the want of constitutional authority
in Congress to enact a statute delegating such legislative
power to the Commission. However unreasonably low or
confiscatory the rates so prescribed may be, the court must
find the order to be lawful and enforce it, if it find authority
in the Commission to make it; and the carrier is without
remedy or relief otherwise than by appealing to the Com¬
mission, or to the President for its removal and the appoint¬
ment of another. •
A Common Criticism.
To analyze in detail the several Bills now pending before
Congress, would extend this discussion to an "unreason¬
able" length. The infirmities common to nearly all of
them are provisions :
(a) Vesting in the Commission legislative power to
prescribe maximum and other rates to be charged by
carriers, which the Congress is without authority to sub-
delegate to it.
(b) Clothing the Commission with judicial power to
find and adjudge that carriers who, in its opinion, have
exacted and collected excessive rates, shall respond in
damages and make reparation in money without trial by
jury, which is depriving them of their property otherwise
than "by due process of law."
(c) And depriving both shippers and carriers, who are
citizens of different States, of the right guaranteed them by
the Constitution to invoke and have judicial inquiry and de¬
termination of controversies between them respecting the
reasonableness or unreasonableness of rates by some Federal
Court, and substituting therefor a species of judicial in¬
quiry and process unknown to the Constitution. Tlfis
48
third infirmity requires a more extended notice than its
mere statement.
Art. VI of the Constitution ordains that "this Constitu¬
tion, and the laws of the United States which shall be made
m pursuance thereof * * * shall be the supreme law of
the land; and the judges in every State shall be bound
thereby, any thing in the Constitution or laws of any State
to the contrary notwithstanding;" and Art. III. that "the
judicial power shall extend to all cases, in law and equity,
arising under this Constitution," or "under the laws of the
United States," or "between citizens of different States."
1. The judicial department of the government is bound
to observe and enforce any legislation which is, and only
such as is, within the constitutional power o,f the legisla¬
tive department to enact. It is not bound to observe or
enforce, but may ignore and disregard, any legislation not
enacted in pursuance of the Constitution. Therefore, any
legislation which the judicial department is not bound to
observe and enforce, but may ignore and disregard, is not
within the constitutional power of the legislative depart¬
ment to enact, but is null and void.
2. Neither department of the government can deprive
any other department of, or abridge, or trench upon, the
powers, functions, or jurisdiction vested in it by the Con¬
stitution. The power to take jurisdiction of and determine
controversies between citizens of different States, is, by
the Constitution, vested in the judicial department of
which it cannot be divested or deprived by any enactment
o,f the legislative department or otherwise. In Kilbourn
vs. Thompson, 103 U. S. 168, Mr. Justice Miller, speak¬
ing for the Court, said : "The Constitution divides the
powers of the government which it establishes into three
departments—the executive, the legislative, and the judicial
—and unlimited power is conferred on no department or
49
officer of the government. It is essential to the success¬
ful working of the system that the lines which separate
those departments shall be clearly defined and closely fol¬
lowed, and that neither of them shall be permitted to en¬
croach upon the powers exclusively confided to the others."
3. Every citizen of any State who commits his person
or his property to a common carrier to be transported
beyond the State, does it with the implied understanding
that he shall pay, and the carrier shall charge therefor,
only such compensation as the service is reasonably worth,
and that, in the event of a controversy arising between
them respecting such compensation, either party may apply
to and have it judicially inquired of and determined by
some Federal Court having original jurisdiction, a suffi¬
cient number of which courts Congress is under constitu¬
tional obligation to provide and establish. As said by Mr.
Justice Brewer, in Reagan vs. Farmers' Loan & Trust Co.,
154 U. S., 1054, N. R. S., "It is doubtless true, as a general
proposition, that the formation of a tariff of charges for
the transportation by a common carrier of persons or
property is a legislative or administrative, rather than a
judicial, function. Yet it has always been recognized that,
if a carrier attempted to charge a shipper an un¬
reasonable sum, the courts had jurisdiction to inquire into
that matter, and to award to the shipper any amount
exacted from him in excess of a reasonable rate, and also,
in a reverse case, to render judgment in favor of the carrier
for the amount found to be a reasonable charge. The
province of the courts is not changed, nor the limit of
judicial inquiry altered, because the legislature, instead of
the carrier, prescribes the rates. The courts are not author¬
ized to revise or change the body of rates imposed by a legis¬
lature or a commission. They do not determine whether-
one rate is preferable to another, or what, under all circum-
5°
stances, would be fair and reasonable, as between the car¬
riers and the shippers. They do not engage in any mere ad¬
ministrative work. But still there can be no doubt of their
poiuer and duty to inquire zohether a body of rates prescribed
by a legislature or a commission is unjust and tinreasonable,
and such as to work a practical destruction to rights of
property, and if found so to be, to restrain its operation."
So, in Stone vs. Farmers' Loan & Trust Co., ii6 U. S., 307,
331, Chief Justice Waite said: "From what has thus been
said it is not to be inferred that this power of limitation or
regulation is itself without limit. This power to regulate is
not a power to destroy, and limitation is not the equivalent
of confiscation. Under pretence of regulating fares and
freights, the State cannot require a railroad corporation to
carry persons or property without reward, neither can it do
that which in law amounts to a taking of private property
for public use without just compensation or without due
process of law." See also, as cited, supra, 23, et sequens,
Packet Co. vs. Keokuk, 95 U. S., 80; Packet Co. vs. St.
Louis, 100, U. S., 423; Transportation Co. vs. Parkersburg,
107 U. S., 691 ; and Huse vs. Glover, 119 U. S., 544.
4. Hence, as stated, supra, by the organic law of the na¬
tion, every shipper, common carrier, or other citizen of any
State, having cause of complaint, legal or equitable, arising
under a law of the United States, or against a citizen of an¬
other State, is guaranteed the constitutional right to have it
judicially inquired of and determined by due process of law
in some Federal Court of original jurisdiction, of which
right he cannot be lawfully deprived by the United States
or any State, nor by any department, tribunal, commis¬
sion, or official board of either. When the complaint chal¬
lenges a carrier's charges as unreasonably high or discrim¬
inatory, the shipper or other person prejudiced is entitled
to demand and have such judicial inquiry and determination
in the proper Federal Court ; when the complaint challenges
SI
the rates of charges prescribed by Congress or any inferior
tribunal or commission as unreasonably low or confiscatory,
it is the constitutional right of the carrier to demand and
have such judicial inquiry and determination in such
Federal Court. In Transportation Co. vs. Parkersburg, 107
U, S., 699, Mr. Justice Bradley said: "When the question
is one of reasonable or unreasonable wharfage, we know
what to do with it. It is a question known to the laws ; and
the modes of redress for unreasonable wharfage are fixed and
settled," They are, as between citizens of different States,
by judicial inquiry and determination in the proper Federal
Court, the same as controversia between shippers and car¬
riers who are citizens of different States are inquired of and
determined.
5. By the authorities above cited and many others which
might be it is firmly established that in any such inquiry
and determination respecting the charges made by a carrier
of interstate commerce, the judicial department of the gov¬
ernment, in ascertaining the reasonableness or unreasonable¬
ness thereof, may wholly disregard any maximum or other
rate prescribed by the legislative department, or by any
State legislature, or by the carrier, and determine its reason¬
ableness or unreasonableness on evidence without reference
to either, which it could not as to a rate prescribed by Con¬
gress if that body is invested with constitutional power to
prescribe maximum or other rates; for in such case the rate
prescribed by it would be the supreme law of the land, which
the judicial department would be bound to observe and re¬
spect. But because in such inquiry the judicial department
is not bound to observe or enforce any rate legislatively pre¬
scribed, but may ignore and disr^ard it. Congress is with¬
out constitutional power to prescribe it.
5^
Privileges and Francises.
Whoever has the right and authority to grant or withhold
a privilege may, in granting it, impose limitations on its exer¬
cise or enjoyment as the condition of the grant. Thus a
municipality, having the right and authority to grant special
privileges in or upon its streets to draymen, hackmen, or
others, may, as a condition of the grant, limit the rates to be
charged by them for their services. So Congress, having
the power "to dispose of and make all needful rules and reg¬
ulations respecting the territory or other property belonging
to the United States," may, in granting a special privilege
within or upon the public domain, as the building and oper¬
ating a railroad within or through the same, impose such
limitations upon the exercise and enjoyment of the privi¬
lege as it may deem proper, or may reserve the authority to
impose them subsequently.
The grant of a franchise to be a corporation and exercise
corporate powers is the prerogative right of sovereignty.
In Great Britain the right is lodged with and belongs to the
sovereign king, except in so far as he may have voluntarily
surrendered it by assenting to and approving Acts of Parlia¬
ment. In this country the right as to some corporations is
reserved to and lodged with the States severally, which, by
their respective Constitutions, is vested in the several State
legislatures; but as to others it is by the Federal Constitu¬
tion delegated to and lodged with the Congress.
In the exercise of its reserved sovereignty, each State,
by its legislature, may grant the franchise to be a corporation
and to exercise corporate powers within its own border, or
in any other State with its assent, and, in making the grant,
it may impose limitations on their exercise in limine, or re¬
serve the authority to impose reasonable limitations subse¬
quently. Thus, it may grant the franchise to be a corpora¬
tion, and as such to exercise the powers and perform the
53
functions of a common carrier; and, in making the grant,
may limit the rates of charges to be made by it for its ser¬
vices and reserve authority to impose reasonable limitations
on such rates subsequently. Stone vs. Farmers' Loan & Trust
Co., ii6 U. S., 331. So, in the exercise of its delegated
sovereignty, Congress may grant the franchise to be a cor¬
poration, and to exercise corporate powers and in making
the grant, may impose limitations on their exercise in limine,
or reserve the authority to impose reasonable limitations
subsequently. Thus it may grant the franchise to be a cor¬
poration, and as such to exercise the powers and perform the
functions of a National Bank; and, in making the grant,
may impose limitations on the exercise of its powers in
limine, or reserve the authority to impose reasonable limita¬
tions thereon subsequently or both.
But the powers granted to a corporation by the State leg¬
islature must not be inconsistent with the delegated powers
and sovereignty of Congress, and the powers granted to
a corporation by Congress must not trench upon nor invade
the reserved sovereignty of the State. No State legislature,
therefore, can, by virtue of its reserved sovereignty, impose
limitations on the powers granted to a corporation by Con¬
gress nor can Congress, by virtue of its delegated sover¬
eignty, impose limitations on the powers granted to a
corporation by any State. Hence, Congress can¬
not, by virtue of its delegated sovereignty, limit
the charges of a corporate carrier exercising its powers
and functions under a corporate franchise granted
by State authority. Being thus powerless to authoritatively
impose such limitations in virtue of its delegated sover¬
eignty, for the reason that the judicial department may
ignore and wholly disregard them in exercising its consti¬
tutional right and jurisdiction to inquire of and determine
the reasonableness of a carrier's charges, it is, for the same
54
reason, powerless to impose them as a commercial regulation
or otherwise; and hence, is without authority to prescribe
maximum or other rates to be charged by interstate or in¬
ternational carriers under any circumstances.
Regulation by Congress Not Possible.
I. When the Union was reconstructed the States were
separately sovereign, each empowered to lay and collect du¬
ties on imports from and exports by or through it to any
other State or foreign country. The continued existence of
such power must have inevitably become the source and
cause of irritation, discord, mutual hostilities, and possibly
armed collision between them. To cement and perpetuate
the fabric in the bonds of enduring friendship and concord,
absolute freedom of trade and commercial intercourse was
established throughout the Union, and the citizens of each
State guaranteed all the privileges and immunities of citizens
in the several States; so that no State, which traffic or his
calling induced a citizen of another State to enter, might
impose on him or his property exactions or burdens other
than or different from those to which it subjected its own
citizens. But this alone might prove inadequate protection.
Each State, in the exercise of its reserved sovereignty and
police power, might still, for the safety of commerce while
in transit within its borders, establish rules and regulations
and require the instrumentalities thereof to be furnished
with appliances and equipments, different from and incon¬
sistent with those established and required by every other
State; so that the carrier of interstate or international com¬
merce might, at every State line which he crossed, encounter
a body of rules, regulations and requirements, with which
he was not and could not have been prepared to comply.
To provide against such possibility Congress was empow-
55
ered to prescribe rules for the regulation of such commerce
which should have uniform operation in each and all of the
States. As said by Mr. Justice Field, speaking for. the
Court, in Welton vs. State of Missouri, 91 U. S., 275, 280,
Chief Justice Waite and the other eminent jurists then on
the bench concurring : "It will not be denied that that por¬
tion of commerce with foreign countries and between tlie
States which consists in the transportation and exchange of
commodities is of national importance and admits and re¬
quires uniformity of regfulation. The very object was to in¬
sure this uniformity against discriminating State legislation,
* * * The power which insures uniformity of commer¬
cial regulation must cover the property which is transported
as an article of commerce from hostile or interfering legis¬
lation until it has mingled with and become a part of tíie
general property of the country, and subject like it to similar
protection and to no greater burden."
Uniformity of Rates Not Possible.
It is a firmly established rule of law that common carriers
shall not charge more, nor be required to accept less, than
reasonable rates of compensation for their services, any rate
prescribed by State authority or by Federal authority, or
by the carrier to the contrary notwithstanding. Hence,
uniformity of rate charges by all common carriers, employ¬
ing the same kind of instrumentality in the transportation of
international or interstate commerce, cannot be prescribed
or required by Congress as a commercial regulation witihout
violating this established rule of law and working intolerable
injustice and oppression; for what may be a reasonable
rate for one carrier by railway or other instrumentality
may be and in the nature of things mast be unreasonably
high and excessive or unreasonably low and confiscatory for
other carriers employing the same kind of instrumentality
56
in different States, or even in the same State, under dif¬
ferent conditions. The commercial regulations, uniformity
of which throughout the States is mandatory, as held in
Welton vs. Missouri, supra, do not nor can include the reg¬
ulation of the rates charged by carriers, for the reason that
no regulation or uniformity of such rates can, in any degree
or respect, subserve any object or purpose stated in Welton
vs. Missouri as the object or purpose which the authors of
the Constitution contemplated and sought to effectuate by
empowering Congress to regulate commerce with foreign
nations and among the several States. Therefore, because
uniformity throughout the States is peremptorily required
of all and the only commercial regulations which Congress
is empowered to prescribe; because no regulation of nor
uniformity in the rates charged by carriers of international
or interstate commerce can subserve any object or purpose,
to effectuate which Congress is empowered to regulate such
commerce; because uniformity in the rates of such carriers
cannot be prescribed and enforced without resulting in mak¬
ing the rates of some carriers unreasonably high or excessive
and of others unreasonably low or confiscatory, the very con¬
sequences sought to be averted and because the authors of
the Constitution cannot be presumed to have intended to,
and they did not delegate to Congress a power the exercise
of which by it was impossible or impracticable, or could
effectuate or subserve no object or purpose for which the
government was established, they, in delegating to that body
the power to regulate commerce with foreign nations and
among the several States, did not intend to, and the Consti¬
tution does not, vest in it the power to prescribe or regulate
the rates to be charged by the carriers of such commerce.
■2. This conclusion is confirmed by other reasons. The
intent of the lawmaker is the law ; the absence of such intent
is its negation. The makers of the Constitution were practi-
57
■cal statesmöi who framed a government to which, and each
department of which, they intended to and did delegate only
practical powers. They intended to and did delegate to
the legislative department only powers which, by legislative
enactment, it could, and as occasion or necessity therefor
arose, it should so exercise. They did not intend to, and the
Constitution th^ framed does not delate to that depart¬
ment any power which it would be or is not only impractica¬
ble but impossible for it, by legislative enactmmt, to exercise
for any purpose. It is not only impracticable but ph3?sically
impossible for the two Hou^ of Congress to prescribe and
readjust, from, cime to time, reasonable maximum or other
rate charges by the multiplied hundreds of carriers of inter-
naticjnal and interstate commerce under multiplied thousands
of different and constantly shifting conditions. Therefore, in
empowering Congress to regulate commerce witíi foreign na¬
tions and among the several States they did not intend to and
the Qjhstitution does not include the impracticable and nuga¬
tory power of regulating or prescribing maximum or other
rate charges of such carriers. That body has never at¬
tempted by legislative enactment itself to exercise such
power, and neither frem^, nor folly, nor rashness can ever
impel the attempt.
3. Further, among the powers expressly delegated to
Congress by the Constitution, that of regulating or prescrib¬
ing reasonable maximum or other rate charges by carriers
of international or interstate commerce is not enumerated,
for which reason it is not among the powers expressly dele¬
gated to that department. Can its delegation to that body
be implied as necmary or proper for carrying into execution
any of the powers expressly delegated to it? The effective
exercise of implied power is and can be the only evidence
of its existence. The delegation to Congress of a power
which it is physically impossible for that body to exercise
58
by legislative enactment cannot be implied. As before stated
it is physically impossible for the two Houses of Congress
to prescribe, by legislative enactment, reasonable maximum
or other rate charges by the carriers of international or in¬
terstate commerce, and more certainly impossible to pre¬
scribe rates which shall have uniformity of operation
throughout the United States ; and therefore, the delegation
to that body of power to prescribe them cannot be implied.
Hence, the power to prescribe maximum or other rate
charges of common carriers not having been delegated to
Congress either expressly or by implication it has not been
nor was ever intended to be vested in that body, and not pos¬
sessing the power it cannot be by it sub-delegated to another.
Resume.
1. The only subjects of international or interstate œm-
merce are the persons and property transported; supra, 2.
The rate diarges by common carriers are neither persons nor
property transported, and are, therefore, not the subject of
such commerce.
2. The only subjects of commercial regulation are the
instrumentalities, vehicles, appliances, agencies, equipments,
facilities, and conveniences used or employed by the carrier
in furthering the persons and property by him transported
to their ultimate destination, and for their protection,.
safety,or comfort while in transit; supra, page 3. The
compensation of the carrier is neither an instrumentality,
nor a vehicle, appliance, agency, equipment, facility, or
convenioice employed by him in the transportation of per¬
sons or property, and hence, is not the subjœt of œm-
mercial regulation.
3. The only object of international or interstate regu¬
lation of commerce is the protection and safety of the per¬
sons and property transported, and their racemption from
59
tribute levied and other burdens imposed by State authority
while in transit, supra, page 6. Neither tlie reasonableness
nor the unreasonableness of the carrier's diarges can contrib¬
ute in the slightest degree to the safety or protection of the
persons or property by him transported, nor their exemption
from tribute or burdens by State authority, and hence,
neither can be either the subject nor the object of commeixial
regulation.
4. The regulation by Congi-ess of the compensation to
be chargoi by the carrier of interstate or international
commerce, is as absolutely inconsistent with that freedom
of commercial intercourse established by the Constitution
between the States, as is the regulation by that body of the
prices current of the mercantile commodities transported.
5. The power to regulate or prescribe the compensation
of common carriers off such commerce is not among the
express powers delegated by the Constitution ; and because
it is physically impossible for Congress to prescribe the
rates of multiplied hundreds of carriers under multiplied
thousands of constantly varying conditions by or acœrd-
ing to any rule which can have uniformity of operation
throughout the United States, or even in any one of than,
the delegation of the power cannot be implied.
6. To repeat; the power to prescribe maximum or other
rate charges of common carriers, not having been dele¬
gated to Congress eitíier racpressly or by implication, it
has not been, nor was ever intended to be, vested in that
body; and not possessing the power, it cannot be by it
sub-delegated to another.
Superfluotis Litigation.
None of the pending bills propose to repeal or alter
Section 22 of the prient Interstate Commerce Law, whidi
expressly provides that "nothing in this Act contained shall
6o
in any way abridge or alter the remedies now existing at
common laiv or by statute, but the provisions of this Act
are in addition to such remedies."
I. Without this saving, every shipper of any State hav¬
ing a cause of complaint, legal or equitable, against a car¬
rier of another State, and every carrier of any State having
a cause of complaint, legal or equitable, against a shipper
of another State, respecting the reasonableness or unreas¬
onableness of rates whether prescribed by State authority,
or by Federal authority, or by the carrier, is guaranteed
the constitutional right to have it judicially inquired of and
determined by due process of law in some proper Federal
Court of original jurisdiction, of which right he cannot
be lawfully deprived by the United States, nor by any State,
nor by any department of the government; and it is the
constitutional right and duty of such Court to take jurisdic¬
tion of and determine such controversy, of which it cannot
be divested nor relieved by any enactment of the legislative
department or otherwise. As held in Reagan vs. Farmers'
Loan & Trust Co., 154 U. S., 1052, (Nat'l. Rep. System) :
"It has always been recognized that, if a carrier attempted
to charge a shipper an unreasonable sum, the courts had
jurisdiction to inquire into the matter and to award to the
shipper any amount exacted from him in excess of a reas¬
onable rate, and also, in a reverse case, to render judgment
in favor of the carrier ,for the amount found to be a reas¬
onable charge. The province of the courts is not changed,
nor the limit of judicial inquiry altered, because the legisla¬
ture, instead of the carrier, prescribes the rates. * * *
There can be no doubt of their power and duty to inquire
whether a body of rates prescribed by a legislature or by a
commission is unjust and unreasonable, and such as to
work a practical destruction to rights of property, and, if
found so to be, to restrain its operation."
6x
2. The several Bills before Congress recognize this con¬
stitutional right of the carrier to his day in court, and the
constitutional obli§p,tion qf the court to hear and determine
his œînpkint, for neither of Üiem undertakes to make any
order of the Commission final, but provide for instituting
in some proper court an action at law or suit in equity to
enforce or restrain it, to which the carrier shall be made a
party, obviously intending and expecting that such action
or suit will preserve to him his day in court Thus two
judicial proceedings are required, one by and before the
Commission, the other in and by the Court, before a contro¬
versy between the shipper and carrier is finally determmed.
3. As the finding and judgment of the Commission es¬
tablishes no principle, terminates no litigation, settles noth¬
ing, and concludes nobody, and as, notwithstanding it, the
pending Bills concede that judicial inquiry some proper
court must be ultimately invoked before finality can be
reached, is it not the part of wisdom and sound policy to
provide some mode of commercial regulation under which
shippers and carriers, in the exercise of their constitutional
right, may invoke judicial inquiry and determination by
the proper court in the first instance, thereby avoiding su-
perfiuous litigation, while preventing encroachment upon
the judicial by the legislative department That such mode
of regulation is not only possible, but practicable and sim¬
ple, will next be shown.
The Beneficiaries of Commerce.
Mercantile commerce is traffic in mercantile commodities.
International commerce is the bringing into the United
States, by whatever instrumentality, means, or mode of
transit^ mercantile cxmimodities for the purpose of traffic.
Interstate commerce is the transfer of mercantile commodi¬
ties, by whatever instrumentaliiy, means, or mode of transit.
62
from one State or Territory to another for like purpose.
Whoever, for the purpose of traffic, so transfers mercantile
commodities, in whatever mode or by whatever instrumen¬
tality, whether such instrumentality is owned by himself or
another, is engaged in interstate commerce. The character
of such commerce is not dependent on nor determined by
the mode of transit, or the instrumentality by which it is
effected, nor by the ownership of such instrumentality.
Live stock so transferred by driving overland, or conveyed
by rail or vessel, the commodities of the merchant or manu¬
facturer so transferred, whether by some instrumentality
owned by himself or by a common carrier; petroleum so
transferred by private pipe-line ; and every other mercantile
commodity, in whatever manner transferred for such pur¬
pose, is interstate commerce. The ranchman who drives or
ships his livestock from one State or Territory to another;
the manufacturer who so ships his own products; the Stand¬
ard Oil Company, which effects such transfer by its own
private pipe-lines ; the middle-man who so transfers the com¬
modities of his purchase, are all engaged in interstate com¬
merce, subject equally and alike to Federal regulation under
Clause 3, Section 8, Art. I, of the Constitution.
The classes of persons whose interests, if they can, ought
to be subserved by the Federal regulation of commerce,
are the millions of agricultural and other producers who are
concerned to have fair prices for their products, which can
reach the general market only through middlemen, and the
multiplied millions of consumers who are interested in low
or moderate prices for the commodities they must purchase
for use or consumption. Few of the pending bills propose
to subserve their interests better in any respect than does the
law as it existed when the Commerce Commission was cre¬
ated, and still exists. That law furnishes an ample and com¬
plete remedy against unreasonably high or excessive, and
against discriminating charges by common carriers. If one
63
dollar per ton is a reasonable rate, and the carrier exacts
one dollar and ten cents from Armour & Co. for transport¬
ing their vast commerce, they can recover the amount of the
excess from the carrier in an action at common law without
the aid and irrespective of the Commerce Commission. So,
if the carrier charges Armour & Co. only the reasonable
rate of one dollar, yet discriminates against them by simul¬
taneously charging Smith & Co. only ninety cents for trans¬
porting the like class of commerce. Armour & Co. can re¬
cover from the carrier the amount of such discrimination
in a like action at common law. Or, if the carrier persists
in excessive or discriminatory charges against Armour &
Co., they may go into Chancery and have him restrained by
injunction. Few of the pending bills propose anything dif¬
ferent from this in effect, but only to accomplish the same
thing in a more circuitous method, and by relieving the ship¬
per of the trouble and expense of protecting his own inter¬
ests. They propose that the Commission shall prescribe
what in its opinion are reasonable rates, and that, if the car¬
rier shall thereafter charge Armour & Co. any higher rate,
or shall discriminate in his charges against them in favor of
Smith & Co. or other shipper, Armour & Co. may then go
into court and, in an action at common law, recover from
the carrier the amount of such excess or of such discrimina¬
tion. But in either case the amount of recovery is only taken
from the carrier's profits and put into the pockets of Armour
& Co., thus swelling their profits, the millions of producers
and the multiplied millions of consumers getting no part of
it nor any benefit therefrom, unless Armour & Co. volunta¬
rily chqose to pay higher prices to the producer or charge
lower prices to the consumer. The whole contention seems
narrowed to a struggle about profits between carriers and
shippers, and between shippers themselves, in which the
apparent purpose of some of these bills is to restrict the
carrier to reasonable profits while furnishing to dealers in
64
and shippers of such commerce a wider margin and a free
hand, the interests of producers and consumers being lost
sight of.
Declaratory Legislation.
While it is competent to enact legislation declaratory of
common law rights, or denunciatory of mischiefs which that
law condemns, yet what is commerce with foreign nations
and among the several States; who shall be deemed to be
engaged therein; when and where a commodity in transit
shall be deemed international commerce and when and where
it shall be deemed interstate commerce; whether the existing
or published rates of carriers are or are not reasonable, and
what practices by them shall be deemed discriminatory as
between shippers, commodities, ports, places, stations, ship¬
ping points, or localities, are all questions, not for legislative
but for judicial deñnition and determination. An example
of such declaratory legislation, showing its purpose and pro¬
priety, is the following:
(o) No common carrier shall charge more nor be re¬
quired to accept less compensation for transporting*
either international or interstate commerce than his ser¬
vices are reasonably worth; nor charge for transport¬
ing any class of such commerce to or from any port, place,
station, shipping point, or locality, a rate or sum which,
though not unreasonable in itself, constitutes unjust and
prejudicial discrimination against it, its business and ship¬
pers, when compared with the rate or rates published or
charged for transporting the like amount and class of such
commerce to or from the same or any other port, place, sta¬
tion, shipping point, or locality ; nor charge such widely dif¬
ferent rates for transporting different classes of commerce to
or from the same port, place, station, shipping point, or local¬
ity, as to constitute, relatively, unreasonable, unjust, and
65
prejuditíal dïscrîniination between them; nor discriminate
between shippers by diarging either less than the other for
substantially equal and similar services; nor by the allow¬
ance to either of rebates, drawbacks, commissions, differ¬
entials or preferentials ; nor by allowances on account of
transfer, switching, terminal, or elevator charges; nor on
account of bridge tolls, ferry tolls, lockage tolls, or wharf¬
age; nor on account of any services rendered, or instru¬
mentalities or supplies furnished, by any shipper; nor
unjustly discriminate between shippers, ports, places,
stations, shipping points, or localities, in furnishing ve¬
hicles, instrumentalities and means of transportation, or
in any other manner or by any other device.
1. The first clause above prohibits rates or diarges whidi
are per se excessive or unreasonably high.
2. The second clause is intended to cover the matter of
long hauls and short hauls, for which purpose the language
"to or from any port, place, station, shipping point, or lo¬
cality," exactly covers the case, without using the words
long haul or short haul, over the same portion of line, in ffie
same or different directions, thus leaving the whole question
for the court to determine whether, under the circumstances,
a greater sum charged for a short haul than for a long haul
is or is not unreasonable or unjust in the particular case be¬
fore it.
3. The third clause sufficiently suggests its purpose, which
is to prevent one dass of commerce from bearing a greater
rdative burden than another class.
Such dedaratory legislation does not create any right
which tlie common law does not recognize, nor denounce any
mischief which that law does not condemn, and for which it
does not furnish judicial remedy. But the propriety of its en¬
actment for the purpose of reference in enacting other legis¬
lation respecting it, is obvious. Thus :
66
(b) Every common carrier who does or practices any
of the things condemned and forbidden in and by paragraph
(a), sliall forfeit as penalty therefor the sum of ten thous¬
and dollars, etc. So the following:
(c) Whenever complaint is made to the Interstate Com¬
merce Commission, that a named carrier is doing or prac¬
ticing any of the things forbidden in and by paragraph
(a), it shall be the duty of the Commission, if it has
reason to believe there is probable ground for the com¬
plaint, to forthwith file or cause to be filed in the proper
circuit court against the carrier complained of, a petition
in the name of the United States, or some officer there¬
of, praying that the offending carrier be enjoined, etc.
Under such proceeding the court may, by process of attach¬
ment as for contempt, and the imposition of heavy pecuni¬
ary penalities, or by imprisonment if need be, compel the
offending carrier to desist from such practices. The
imposition of a few such penalties and imprisonments
would have the salutary effect of bringing all such carriers
to a sense of their duty to observe the law. It is not the
creation of new rights, but the rigorous, speedy, and impar¬
tial enforcement of existing rights; not the cumulation of
mischiefs or remedies therefor, but the application and
enforcement of existing remedies, to restrain mischiefs al¬
ready recognized, which is needed. To this end and for this
purpose, the assumption by the government of the enforce¬
ment of existing rights and remedies is indispensable, for
the reason that multiplied thousands of small shippers cannot
afford the cost and expense of prosecuting in their individual
names in view of the small amounts involved, on account of
which carriers continue their unreasonable, unjust, and dis¬
criminatory practices with impunity, and go "unwhipped of
justice."
W. H. WEST.
3 5556 042 4
80426