The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-06-05
CONGRESS AND OUR s12. 600. Co.,
600 or RAILWAY PROPERTY.
A Closely Reasoned study OF Limitations
and Consequences.

OOO or RAILWAY PROFEhIf.
A Closely Reasoned study OF Linitat items
and Consequences.
From an article BY Victor Norovsts IN tie
Hasard Law ResiIW for June.
To fix the rates to be charged By . carrier
In the future Ia legislative and not Judi
cial act. This has repeatedly been pointed
out by the Supreme Court OF the united
States.
Congress cannot confer judicial powers
upon the Interstate Commerce Commits
sion. It can confer judicial powers only
upon courts established In the manner pre-.
scrlbed by the Constitution. The Judges OF
such courts must be appointed TO hold once
during good behavior. and must receive for
their services q compensation which shau
not be diminished during their continuance
In ONCE. As will be pointed out hereafter.
q Judge can be required to perform only
strictly judicial services. The Interstate Com.
merce Commission 10 vested with vsriousnon-
judicial functions, such a. the duties OF pro-
curing statistics and OF prosecuting VIOLA
tons Of the law. Congress- could not confer
strictly judicial powers upon oornmissIon
80 constituted. nor could IL sivs to such q
commission power to adjudicate finally tho
lawfulness OF rate charged By tho railway
companies. or to impose fines or penalties.
Congress can confer upon . commission
power to fix. subject TO review by the courts.
the maximum rates that would not b unreA.
sonably high and extortionate 40 against
shippers. but 10 doubtful whether or not
Conkress can vest In commission the purely
discretionary power to AZ rates as II sos at,
Tho Constitution provides that all lcsiaA.
tive powers herein granted shall b vested In
9 Congress Of the United States and the
general rule Is well settled that Congress
cannot delegate it, leStalativo powers - any
other body. It has never been decided that
Congress can delegate 70 commission ths
power Of prescribing future railway rsted.
because Congress has never passed any law
purporting to do 90. In number Of the
States. however, such laws. delegatins to
railway commissioners tho power OF liking
rates, have been passed. and their constitu-
tionsllty has been sustained. These deoIslops
are based upon the doctrine that while a
Legislature may not dele gate its strictly leR1s-
lative powers. Yet 1t may delegate its authority
to re gulate certain matters which In the nature
Of things require regulation Of . ouasi-ad-
ministratlve character and which. in the
nature Of things. could not be satisfactorily
regulated by the Legislature itself. Accord.
ing to these cases, while the power OF h1ins
rates Is a function Of the Legislsture. 1t 10
quasi administrative function which may be
delegated to commission.
No doubt. Congre can By law prescribe
general rules for the r. gulation Of the Charge
Of railway companies-for example. It can
las IT. did In the Interstate Commerce act)
prohibit railway companies from charging
unreasonsbly high or extortionats rates
and can prohibit them from unduly diserimi-
mating In their charges; and It can establish
q commission or other administrative body
with power to carry into effect such general
r,,lna Atpn IN q
prima toeie what rates shall be deemed un.
reasonably high or discriminatory and thsre-
fore illegal under the statute. Under euoh Q
law the function OF commission would b
merely administrative In carrying out tho
declared will OF Congress to prohibit excessive
or unjustly discriminatory rates. and the
commissl itself would not be vested with
the legislative power Of determining. accord
ing to its own arbitrary will or ideas Of policy.
what rates shall b charged In the future.
Under such a law the action Of the commits
sion, although prirna focis valid. could b
reviewed and set aside by the courts. and
the carrier could not be deprived Of the right
to charge any rate that would not be unfea-
sonably high or unjusay discriminatory.
Even IL Congress itself has constitutional
power TO AZ the rates OF tho railway COM
panies according to its discretion. IL would be
going step further to hold that II can dele
gate this discretionary power to commission.
As was pointed out by the Supreme Court.
such power 10 "a Legislative power Of
supreme delicacy and Importance" and would
enable the commission to make 'laws Of
wide import. destroying some branches OF
commerce that have long existed, and UNDER
taking to change the laws and customs Of
transportation In the promotion OF what 10
supposed to be public policy
Congress cannot vest In the courts power
TO- Ak future rates. or to consider and pas
upon the wisdom or policy OF the commission
in prescribing q particular rate which 10
neither confiscatory nor unressonably high.
1t is well settled that Congress- cannot con.
stitutionally require the courts TO perform
any duties that are not Of = judicial chsrac-
ter. 1t cannot require the courts. directly or
indirectly. to perform duties OF an admins.
trative or Of a quasi gislative character.
1t follows, therefore. that Con gress has no
constitutional power TO require the courts
to exercise the legislative or ouasl-le gislatave
power of commission In fixing the rates
to be charged by a railway company. Con-
sress has never attempted this, and the pre-.
else point. therefore. has not been decided
but a similar question has arisen under State
legislation purporting to vest the rate making
power in the courts. and this legislation has
been condemned as unconstitutional.
II Congress cannot give to the courts ortn-
nal power to prescribe what rates the railway
carriers shall charge, 1t cannot require them
to reconsider the whole case a. 1t was con-
sidered by the commission and 10 pass upon
the wisdom and policy OF the action OF the
commission In fixing . rate. In other words
Congress cannot constitute the courts. In
substance. an Appellate Railroad Commits
sion. and require them to substitute their
own ideas as TO tho wisdom and policy Of .
rate for the ideas OF the commission. Any
statute authorizing the commission In the
first instance to exercise purely dictionary
power in fixing rates. and requiring the
courts. upon review ing this action. to exer-
else the same discretion ms the commission.
would be unconstitutional. because this dis
erection would be of legislative and not Of .
judicial character. Such a statute would In
effect constitute the courts the ultimate rate
makers for the railways In the United States.
The courts undoubtedly can pass upon the
question whether q rate IL unreasonably
high and therefore unlawful. or whether IL
is In violation OF a legal order made by the
commission. They can also pass upon the
question whether the action OF the commits
sion in fixing a rate Is constitutional. that In
to say. whether 1t would In effect amount to
conhsoation Of the property Of the carrier:
but they cannot be required to substitute
their own ideas OF wisdom or policy for
those OF the commission In fixing rate which