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POWEE OF COMEESS OYEE
INTEESTATE COMMEECE.
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POWEIl OP COXGIiESS OVER INTERSTATE
COMMERCE.
Congress has power to constitute tribunals inferior to the
Supreme Court. (Cons. U. S., section 8, clause 9.)
Tot regulate commerce with foreign nations and among the
several States and with the Indian tribes. (Cons. IT. S., section
8, clause 3, article I.)
The making and fixing of rates is a legislative, and not a ju¬
dicial, function ; and the decisions are unifonn in declaring that
statutes creating railroad commissions, and giving them the
power to make and fix rates, are not unconstitutional as delegat¬
ing a legislative power which belongs only to the legislature it¬
self. 8 Am. and Eng. Eney. of Law, 911 ; Chicago N. W. B.
Co. V. I)ey, 4 Ry. & Corp. L. J. 465, 35 FecJ. Rep. 866, 2 Inters.
Com. Rep. 325, 1 L. R. A. 744; Granger Cases, 94 IT. S. 113—
187, 24 L. ed. 77—97 ; State ex rel. Railroad (& Warehouse Com¬
mission V. Chicago, M. & St. P. B. Co. 38 Minn. 281, 37 N. W.
782 ; State ex rel. Board of Transportation v. Fremont, E. & M.
Valley B. Co. 22 Neb. 313, 35 N. W. 118, 23 Neb. 117, 36 N.
W. 308 ; Tilley v. Savannah, P. iê IT. B. Co, 5 Fed. Rep. 641;
Georgia. B. Co. v. Smith, 70 Ga. 694; New Yorh & N. E. B.
Co. V. Bristol, 151 U. S. 556, 38 L. ed. 269 ; Reagan v.
Farmers' Loan & T. Co. 154 IT. S. 362, 38 L. ed. 1014, 4 Inters.
Com. Rep. 560, and cases quoted; Ames v. Union P. B. Co. 64
Fed. Rep. 165, 4 Inters. Com. Rep. 835 ; Interstate Commerce
Commission v. Cincinnati, N. 0. & T. P. B. Co. 167 U. S. 479,
42 L. ed. 243 ; Texas & P. B. Co. v. Interstate Commerce Com¬
mission, 162 IT. S. 197, 40 L. ed. 940; Smyth v. Ames, 169 IT.
S. 466, 42 L. ed. 819.
"When the law has confided to a special tribunal the authority
to hear and determine certain matters arising in the course of
its duties, the decision of that tribunal, within the scope of its
2
authority, is conclusive upon all others. Johnson v. Towsley,
13 Wall. 72, 20 L. ed. 485.
The legislature's determination, either directly or indirectly,
of what is reasonable, is conclusive, subject only to charter
rights and to the fact that the rates established will give some
compensation to the carrier. A tty. Gen. v. Old Colony B. Co.
160 Mass. 62, 22 L. E. A. 112 ; Chicago £ N. W. R. Co. v. Dey,
35 Fed. Eep. 866, 2 Inters. Com. Eep. 325, 1 L. K. A. 744.
The power to regulate is to prescribe the rule by which the
commerce is to be governed. This power, like all others vested
in Congress, is complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations other than are pre¬
scribed in the Constitution. If, as has already been under¬
stood, the sovereignty of Congress, 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 absolutely as it would be in a single government
having in its constitution the same restrictions in the exercise
of the power as are found in the Constitution of the United
States. Gibhons v. .Ogden, 9 Wheat. 1, 197, 6 L. ed. 23, 70.
It is obvious that the government, in regulating commerce
with foreign nations and among the States, may use means that
may also be employed by a State in the exercise of its acknowl¬
edged powers,—that, for example, of regulating commerce
within a State. Gibbons v. Ogden, 9 Wheat. 204, 6 L. ed. 72.
The power to regulate commerce . . . amounts to noth¬
ing more than a power to limit and restrain it at pleasure.
Gibbons v. Ogden, 9 Wheat. 227, 6 L. ed. 77.
It may be doubted whether any of the evils proceeding from
the feebleness of the Federal government contributed more to
that great revolution which induced the present system than the
deep and general conviction that commerce ought to be regu¬
lated by Congress. It is not, therefore, matter of surprise that
the grant should be as extensive as the mischief, and should
comprehend all foreign commerce and all commerce arising
among the States. Broivn v. Maryland, 12 Wheat. 446, 6 L.
ed. 688.
The power to regulate commerce includes that of punishing
â
I
ali offenses against commerce. United States v. Coombs, lä
Pet. 72, 9 L. ed. lOOd.
The design and object of that power, as evinced in the history
of the Constitution, was to establish a perfect equality amongst
the several States as to commercial rights, and to prevent unjust
and invidious distinctions which local jealousies or local and
partial interests might be disposed to introdiice and maintain.
Veazie v. Moor, 14 How. 574, 14 L. ed. 547.
Commerce is a term of the largest import. . . . The
power to regulate it embraces all the instruments by which such
commerce may be conducted. Welton v. Missouri, 91 IT. S.
280, 23 L. ed. 849.
The power conferred upon Congress to regulate commerce
with foreign nations and among the several States is not con¬
fined to the instrumentalities of commerce known or in use when
the Constitution was adopted, but keeps pace with the progress
of the country, and adapts itself to the new developments of
time and of circumstances. It was intended for the govern¬
ment of the business to which it relates at all times and under
all circumstances ; and it is iiot only the right, but the duty, of
Congress to take care that intercourse among the States and the
transmission of intelligence are not obstructed or unnecessarily
encumbered by State legislation. Pensacola Teleg. Co. v. West¬
ern U. Teleg. Co. 96 IT. S. 9, 24 L. ed. 710.
The power to regulate that commerce, . . . vested in
Congress, is the power to prescribe the rules by which it shall
be governed,—that is, the conditions upon which it shall be con¬
ducted. . . . The power also embraces within its control
all the instrumentalities by which that commerce may be carried
on, and the means by which it may be aided and encouraged.
Oloucester Ferry Co. v. Pennsylvania, 114 IT. S. 203, 29 L. ed.
161, 1 Inters. Com. Hep. 382.
When a commodity has begun to move as an article of trade
from one State to another, commerce in that commodity between
the States has commenced. The Daniel Ball, 10 Wall. 565,
sub nom. The Daniel Ball v. United States, 19 L. ed. 1002.
But this movement does not begin until the articles have been
i
skipped or started for transportation from the one State to the
other, üoe v. Errol, 116 U. S. 517, 29 L. ed. 715.
This species of legislation is one which must be, if established
at all, of a general and national character. Wabashj St. L. é
P. Ii. Co. V. Illinois, 118 U. S. 577, 30 L. ed. 251.
For the regulation of commerce as thus defined there can be
only one system of rides applicable alike to the whole country ;
and the authority which can act for the whole country can alone
adopt such a system. Mobile County v. Kimball, 102 U. S.
691, 26 L. ed. '238.
The power to regulate commerce embraces a vast field, con¬
taining not only many but exceedingly various subjects quite
unlike in their nature. Cooley v. Philadelphia Port Wardens,
12 How. 299, 13 L. ed. 996.
The power to regulate commerce among the several States is
granted to Congress in terms as absolute as is the power to regu¬
late commerce with foreign nations. Brown v. Houston, 114
U. S. 622, 29 L. ed. 257."
The uses of railroad corporations are public, and therefore
they are subject to legislative control in all respects necessary
to protect the public against danger, injustice, and oppression.
New York & N. E. R. Co. v. Bristol, 151 U. S. 556, 38 L. ed.
269.
Congress has plenary power, subject to the limitations im¬
posed by the Constitution, to prescribe the rule by which com¬
merce among the several States is to be governed, and may, in
its discretion, employ any appropriate means, not forbidden by
the Constitution, to carry into effect, and accomplish the objects
of, a power given to it by the Constitution. Interstate Com¬
merce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047,
4 Inters. Com. Kep. 545.
The înaking and fixing of rates by either a legislature directly
or by a commission do not work a deprivation of property with¬
out due process of law. Munn y. Illinois, 94 TJ. S. 113, 24 L.
ed. 77 ; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616;
Stone V. Farmers' Loan & T. Co. 116 U. S. 307, 29 L. ed. 636 ;
Dow V. Beidelman,, 125 U.S. 680, 31 L. ed. 841, 2 Inters. Com.
Eep. 56 ; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S.
26, 32 L. ed. 585, and cases cited; Budd v. New York, 143 TJ,
s. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45; New York &
N. E. 11. Co. v. Bristol, 151 IT. S. 556, 88 L. ed. 269; Reagan
V. Farmers' Loan & T. Co. 154 IT. S. 362, 38 L. ed. 1014, 4
Inters. Com. Rep. 560.
The State does not lose the right to fix the price because an
individual voluntarily undertakes to do the (public) work.
Budd V. New York, 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com.
Rep. 45.
The Rehraska statute fixing maximum rates is not obnoxious
to the Fourteenth Amendment. Ames v. Union F. R, Co. 64
Fed. Rep. 165, 4 Inters. Com. Rep. 835.
The compelling of railway companies to comply with the or¬
der of railroad commissioners regulating rates is due process of
law. 8 Am. & Eng. Enc. of Law, 911 ; Chicago, M. & 8t. P.
R. Co. V. Becker, 32 Fed. Rep. 849 ; Louisville & N. R. Co. v.
Railroad Commission, 19 Fed. Rep. 679, 16 Am. & Eng. R.
Cas. 1 ; Railroad Comrs. v. Oregon R. & Nav. Co. 17 Or. 65, 2
L. R. A. 195, 35 Am. & Eng. R. Cas. 542 ; State ex rel. Railroad
& Warehouse Commission v. Chicago, M. S St. F. R. Co. 38
Minn. 281, 37 IST. W. 782; Stone v. Natchez, J. & C. R. Co. 62
Miss. 646 ; Stone v. Farmers' Loan A- T. Co. 116 U. S. 307, 29
L. ed. 636 ; State ex rel. Board of Transportation v. Fremont,
E. & M. Valley R. Co. 22 Reb. 313, 32 Am. & Eng. R. Cas.
426; People v. New York, L- E. & W. R. Co. 104 R. Y. 58;
State V. New Haven & N. Ry. Co. 37 Conn. 153.
The principal objects of the Interstate Commerce Act were
to secure just and reasonable charges for transportation. . . .
Interstate Commerce Commission v. Baltimore & 0. R. Co. 145
IT. S. 263, 36 L. ed. 699, 4 Inters. Com. Rep. 92.
It is difficult to perceive how the power to fix and regulate the
charges for such transportation can be considered in any other
light than that of a power to regulate commerce. Illinois C.
R. Co. V. Stone, 20 Fed. Rep. 468.
It is not doubted that Congress has the power to go beyond the
general regulations of commerce which it is accustomed to es¬
tablish, and to descend to the most minute directions if it shall
be deemed advisable. Cooley, Const. Lim. 732, quoted with
approval by Mr. Justice Field in the case of Qloucester Ferry
tí
Co. V. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters.
Com. Eep. 382.
That this power to regulate by fixing charges for interstate
transportation is vested solely in Congress by article I, section 8,
paragraph 3, of the Constitution of the United States, is, in my
opinion, equally well settled by numerous decisions of the Su¬
preme Court of the United States. Mobile & 0. B. Co. v. Ses¬
sions, 28 Fed. Hep. 592.
Several of the State statutes, under State Constitutions con¬
taining nearly identical provisions on the subject as the Federal
Constitution, allowing State railroad commissions to make and
fix railway rates for such States, which said rates were to be
operative until set aside by the courts, have been upheld as valid
and constitutional by the United States Supreme Court. See
Pensacola & A. R. Co. v. State (Fla.) 3 L. R. A. 661, with ex¬
tensive notes to that case and notes to Winchester & L. Turnp.
Road Co. V. Croxton (Ky.) 33 L. E. A. lYY.
This Federal Commission has assigned to it the duties, and
performs for the United States in respect to that interstate com¬
merce committed by the Constitution to the exclusive care and
jurisdiction of Congress the same functions, which State com¬
missioners exercise in respect to local or purely internal com¬
merce, over which the States appointing them have exclusive
control. Their validity in their respective spheres of operation
stands upon the same footing. The validity of State commis¬
sions invested with powers as ample and large as those con¬
ferred upon the Federal Commission has not been successfully
questioned v/hen limited to that local or internal commerce over
which the States have exclusive jurisdiction; and no valid rea¬
son is seen for doubting or questioning the authority of Congress,
under its sovereign and exclusive power to regulate commerce
among the several States, to create like commissions for the
purpose of supervising, investigating, and reporting upon mat¬
ters or complaints connected with or growing out of interstate
commerce. What one sovereign may do in respect to matters
within its exclusive control the other may certainly do in respect
to matters over which it has exclusive authority. Kentuclcy &
T. Bridge Co. v. Louisville cß N. R. Co. 3Y Fed. Hep. 56Y, 2 In¬
ters. Com. Hep. 380, 2 L, H. A. 289.
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The power granted to Congress to regulate commerce is nec¬
essarily exclusive whenever the subjects of it are national or
admit only of one uniform system or plan of regulation through¬
out the country. ... In the matter of interstate com¬
merce the United States are hut one country, and are and must
he subject to one system of regulation, and not to a multitude of
systems. Rohhins v. Shelby County Taxing Dist. 120 U. S.
489, 30 L. ed. 694, 1 Inters. Com. Rep. 45 ; Stoutenhurgh, v.
Rennick, 129 U. S. 141, 32 L. ed. 637.
Congress may, under certain conditions, reduce the rates of
fare on the Union Pacific Railroad, if unreasonable, and fix and
establish the same by law. 12 Stat. L. 497, chap. 120, sec.
18. This statute is discussed by Mr. Justice Brewer in ^Imes
V. Union P. R. Co. 64 Red. Rep. 165, 4 Inters. Com. Rep. 835,
and held not to conclude the State of Rehraska from fixing rates
until Congress takes action.
This act (of Colorado) was intended to apply to intrastate
traffic the same wholesome rules and regulations which Congress
two years thereafter applied to commerce between the States.
Union F. R. Co. v. Goodridge, 149 U. S. 680, 37 L. ed. 896.
The Interstate Commerce Commission is an administrative
hoard, and the courts are only to he resorted to when the Com¬
mission prefers to enforce the provisions of the statute by a
direct proceeding in the court, or when the orders of the Com¬
mission have been disiegarded. Interstate Commerce Commis¬
sion V. Cincinnati. N. 0. cê T. F. R. Co. 162 U. S. 184, 40 L.
ed. 935, 5 Inters. Com. Rep. 391.
The entire commerce of the United States, foreign and inter¬
state, is subject to the provisions of the Act of Congress to
Regulate Commerce. Texas &. F. R. Co. v. Intersta.te Commerce
Commission, 162 U. S. 197, 40 L. ed. 940, 5 Inters. Com. Rep.
405.
Upon the power of legislatures to fix tolls, rates, or prices, see
note to case of Winchester & L. Tump. Road Co. v. Croxton
(Ky.) 33 L. R. A. 177.
A statute imposing a penalty for charging more than just and
reasonable compensation for the services of a carrier, without
fixing any standard to determine what is just and reasonable,
thus leaving the criminality of the carrier's act to depend on the
8
jury's view of the reasouableness of a rate charged, is in viola¬
tion of the constitutional provision against taking property
without due process of law. Louisville & N. B. Co. v. Com.
99 Ky. 132, 33 L. E. A. 209.
Penalties cannot be thus inflicted at the discretion of a jury.
. . . The legislature cannot delegate this power to a jury.
If it can declare it a criminal act for a railroad corporation to
take more than a "fair and just return" on its investments, it
must, in order to maintain the validity of the law, define with
reasonable certainty what would constitute such "fair and just
return." Louisville N. B-. Co. v. Bailroad Commission, 19
Fed. Eep. 679.
The Supreme Court of the United States, in Bailroad Com¬
mission Cases, 116 U. S. 336, sub nom. Stone v. Farmers' Loan
& T. Co. 29 L. ed. 646, refers to the last-named case and sub¬
stantially approves it.
Although a statiite has been held to he unconstitutional which
left it to the jury to determine whether or not a charge was ex¬
cessive and unreasonable, in order to ascertain whether a pen¬
alty is recoverable, yet, where the action is merely for recovery
■ of the illegal excess over reasonable rates, this is a question
which is a proper one for a jury. 8 Am. & Eng. Ency. of Law,
935.
The Iowa railroad commission act was attacked for uncer¬
tainty on the ground that it did not prescribe what should con¬
stitute a reasonable rate ; hut as the statute declared that the rate
fixed by the commission should he prima facie evidence that it
was reasonable, although the accused could show in defense that
it was not reasonable, the supreme court of the State held that
the statute was sufficiently definite, since the rate was fixed, al¬
though it was subject to attack in the courts. To the claim that
the commissioners' rate would not secure the accused from con¬
viction if-it was excessive, the court declared that the State
'was precluded from denying that the commissioners' rate was
a reasonable one. Burlington, C. B. cfi N. B. Co. v. Dey, 82
Iowa, 312, 3 Inters. Com. Eep. 584, 12 L. E. A. 436.
The same decision in substance was made on this question
by Judge BreAver, then of the United States circuit court, in the
9
case of Chicago & N. W. B. Co. v. Dey, 35 Fed. Kep. 866, 2
Inters. Com. Kep. 325, 1 L. E. A. 744.
The Illinois act providing that a charge by a railroad com¬
pany of more than reasonable rates shall constitute extortion is
held to be sufficiently definite when construed with another sec¬
tion which provides that the railroad commission shall make
a schedule of reasonable maximum rates. Chicago, B. & Q. B.
Co. V. People, 77 111. 443.
And the validity of this provision of the Illinois statute has
been further established by the Illinois supreme court. See
Chicago, B. & Q. B. Co. v. Jones, 149 111. 361, 4 Inters. Com.
Kep. 683, 24 L. K. A. 141 ; Stone v. Farmers' Loan & T. Co,
116 U. S. 307, 29 L. ed. 636, deciding the same way the Missis¬
sippi statute.
The Georgia statute is not violated unless the rates charged
exceed those fixed by the Commission. Sorrell v. Central B. Co.
75 Ga. 509.
But in order to constitute a crime the act must be one which
the party is able to know in advance whether it is criminal or
not. The criminality of an act cannot depend upon whether a
jury may think it reasonable or unreasonable. Tozer v. United
States, 52 Fed. Kep. 917, 4 Inters. Com. Kep. 245.
An inquiry whether rates of carriers are reasonable or not is
a judicial act; but to prescribe rates for the future is a legisla¬
tive act. That Congress has transferred to any administrative
body the power to prescribe a tariff of rates for carriage by a
common carrier is not to be presumed or implied from any
doubtful and uncertain language. If Congress had intended to
grant such a power to the Interstate Commerce Commission it
cannot be doubted that it would have used language open to no
misconstruction, but clear and direct. Interstate Commerce
Commission v. Cincinnati, N. 0. <£• T. P. B. Co. 167 F. S. 479,
42 L. ed. 243.
In the case of Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77,
the Supreme Court of the United States, after a thorough review
of the American and English authorities, has laid down the fol¬
lowing fundamental principles governing public carriers and
other quasi-public institutions : , ,
1. Under the powers inherent in every sovereignty, a govern-
lo
ment may regulate the conduct of its citizens toward each other,
and, when necessary for the public good, the manner in which
each shall use his own property.
2. It has, in the exercise of these powers, been customary in
England from time immemorial, and in this country from the
first colonization, to regulate ferries, common carriers, hackmen,
bakers, millers, wharfingers, auctioneers, innkeepers, and many
other matters of liké quality, and in so doing to fix a maximum
charge to be made for services rendered, accommodations fur¬
nished, and articles sold.
3. The Eourteenth Amendment to the United States Consti¬
tution does not in any wise amend the law in this particular.
■i. When the owner of property devotes it to a use in which
the public has an interest, he in effect grants to the public an
interest in such use, and must to the extent of that interest sub¬
mit to be controlled by the public.
5. The limitation by legislative enactment of the rate of
charges for services rendered in an employment of a public
nature, or for the use of property in which the public has an in¬
terest, establishes no new principle in the law, but only gives a
new effect to an old one.
Thus the highest court has permanently established the broad
principle that the public have the right to regulate charges in
all enterprises affected with a public use. To this doctrine all
the courts have steadfastly adhered. In this leading case it was
also held that the courts had no right to interfere with the rates
fixed by the lawmaking power. This doctrine, however, has
been since somewhat qualified in-the case of Reagan v. Farmers'
Loan & T. Co. 154 U. S. 412, 38 L. ed. 1028, 4 Inters. Com.
Rep. 1028, and other cases there cited, where it is held that
when rates are confiscatory the courts may so declare and rele-
gáte the matter back to the lawmaking power for new rates, by
which a reasonable profit is left to the carrier. But the prin¬
ciple that the legislative power, either directly, or indirectly
through a commission, can fix rates of freight and passenger
traffic within this constitutional limitation, has been uniformly
upheld in all the decisions of the United States Supreme Court
upon this subject.