J ATION AS AFFECTED 
 DISTRIBUTION OF GOV- 
 ERNMENTAL POWERS IN THE 
 CONSTITUTIONS 
 
LIBRARY 
 
 OF THE 
 
 UNIVERSITY OF CALIFORNIA. 
 
 . Class 
 
RATE REGULATION AS AFFECTED 
 BY THE DISTRIBUTION OF GOV- 
 ERNMENTAL POWERS IN THE 
 CONSTITUTIONS 
 
 BY 
 
 ROBERT P. REEDER 
 
 Of the Philadelphia Bar 
 
 PHILADELPHIA 
 T. & J. W. JOHNSON Co. 
 
GENERAL r/ 
 
 COPYRIGHT, 1908, 
 
 BY 
 ROBERT P. REEDER 
 
RATE REGULATION AS AFFECTED BY THE 
 DISTRIBUTION OF GOVERNMENTAL 
 POWERS IN THE CON- 
 STITUTIONS 
 
 INTRODUCTORY. 
 
 In this article an effort will be made to show that, within 
 their respective jurisdictions and within constitutional 
 bounds, both Congress and the state legislatures may limit 
 the charges for railroad transportation, either specifically 
 or by definite general rules; and that if the legislative de- 
 partment of government establishes such rules it may em- 
 power a commission to name specific rates in accordance 
 therewith; but that, on the other hand, such rules may be 
 established only by the legislative department, and until 
 they are so established no commission may constitutionally 
 ordain specific rates. We shall, furthermore, consider the 
 question whether the statutes which empower commissions 
 to name specific rates do establish definite principles of 
 which the commissions are simply called upon to state the 
 specific applications or whether by those statutes the at- 
 tempt is made to entrust to the commissions a discretion 
 which is so broad as to be unconstitutional. 
 
 As the rules of constitutional law which are involved 
 have been frequently misunderstood even by the courts 
 which have endeavored to apply them, it will be necessary 
 to examine at some length those rules and the more impor- 
 tant cases which have arisen under them. 
 
 185002 
 
2 RATE REGULATION AND THE DISTRIBUTION 
 
 GENERAL RULE AS TO DISTRIBUTION OF POWERS. 
 
 The United States and the several states have by their 
 respective constitutions made partial 1 distributions of the 
 powers of those governments among three departments of 
 government. In so doing they have by implication, and 
 at times by express words, declared that an organ posses- 
 sing the characteristics of one department shall not exer- 
 cise powers which have been entrusted only to another de- 
 partment. 2 It is this restraint which we shall consider in 
 the present article. 
 
 Obviously, the distributive clauses of the federal Consti- 
 tution relate only to the federal government, 3 and the dis- 
 
 1 See page 4, infra. 
 
 'Cooley, Constitutional Limitations, 7th ed., 126; Cooley, Constitu- 
 tional Law, 3d ed., 46; Black, Constitutional Law, 2d ed., pp. 78-84; 
 Bondy, The Separation of Governmental Powers, (Columbia University 
 Studies) 19-22; 6 A. & E. Enc. of L., 2d ed., 1006, 1009; 8 Cyc. 807, 
 828, 844, 858; State v. Johnson, (1900) 61 Kan. 803, 60 Pac. 1068, 49 L. 
 R. A. 662; Western U. T. Co. v. Myatt, (1899) 98 Fed. 335; Shephard 
 v. City of Wheeling, (1887) 30 W. Va. 479, 4 S. E. 635. Compare 6 
 A. & E. Enc. of L., 2d ed., 1007; State v. Bates, (1905) 96 Minn, no, 
 116, 104 N. W. 709, 712; Sawyer v. Dooley, (1893) 21 Nev. 390, 32 Pac. 
 437; and authorities cited in note 6, infra; and see Atlantic E. Co. v. 
 Wilmington &> W. R. Co., (1892) in N. C. 463, 16 S. E. 393, 18 L. R. 
 A. 393. Professor Dunning, in 19 Pol. Sci. Quar. 487, claims that 
 Aristotle did not express the views concerning the distribution of gov- 
 ernmental powers which later writers have attributed to him. The 
 statement in the text is obviously true as to those constitutions which 
 contain express declarations to that effect. As to those which do not 
 contain such declarations, it is clear that one department cannot exercise 
 power which has been entrusted only to another department without 
 the consent of the latter. And the question whether even the consent 
 of the latter can validate the exercise of a power otherwise than as 
 provided in the constitution must be answered by a consideration of 
 the purpose of those who adopted the constitutions when they decided 
 to grant different governmental powers to different organs of govern- 
 ment. 
 
 ' The United States Supreme Court said in Satterlee v. Matthewson, 
 (1829) 2 Pet. 380, 413, "There is nothing in the Constitution of the 
 United States which forbids the legislature of a state to exercise 
 judicial functions." See also Calder v. Bull, (1798) 3 Ball. 386; Ran- 
 dall v. Kreiger, (1874) 23 Wall. 137, 147; Consolidated R. Co. v. 
 State, (1908) 207 U. S. 541, 552, 28 Sup. Ct. 178, 181 ; Michigan C. R. 
 Co. v. Powers, (1906) 201 U. S. 245, 294, 26 Sup. Ct. 459, 462, 463; 
 League v. Texas, (1902) 184 U. S. 156, 161, 22 Sup. Ct 475, 477; 
 
OF POWERS IN THE CONSTITUTIONS 3 
 
 tributive clauses of the state constitutions relate only to the 
 governments of the respective states. Yet whether we con- 
 sider the power of an organ of the federal government or 
 the power of an organ of a state government, the problems 
 involved will be the same, for there is a general uniformity 
 among the constitutions, although, of course, there are also 
 variations among the constitutions which may prevent uni- 
 form answers to those problems, and even under similar 
 provisions different conclusions may be reached by the au- 
 thorities of different jurisdictions. 4 
 
 It is true that the actual distribution of powers is not 
 strictly logical ; that, for instance, the president or governor 
 exercises power which is legislative in its character when 
 he vetoes legislation, and legislative bodies exercise power 
 of a judicial nature when they try cases of impeachment 
 and power of an administrative nature when they consider 
 appointments to office. 5 But such constitutional exceptions, 
 
 Winchester & S. R. Co. v. Commonwealth, (1906) 106 Va. 264, 267, 269, 
 55 S. E. 692, 693, 694 ; Bondy, The Separation of Governmental Powers, 
 (Columbia University Studies) 21; Mobile, J. & K. C. R. Co. v. State, 
 (1908) 210 U. S. 187, 202, 28 Sup. Ct. 650, 655; Claiborne Co. v. Brooks, 
 (1884) in U. S. 400, 410, 4 Sup. Ct. 489, 494. The dates of the cases 
 will be noted, however. 
 
 * Trustees v. Saratoga G., E. L. 6- P. Co., (1908) 191 N. Y. 123, 83 
 N. E. 693, 696; People v. Cook, (1907) 147 Mich. 127, 131, 132, no 
 N. W. 514, 516; State v. Kline, (1907) Ore., 93 Pac. 237, 239; Win- 
 chester & S. R. Co. v. Commonwealth, (1906) 106 Va. 264, 55 S. E. 
 692; Wheeler's Appeal, (1877) 45 Conn. 306; McGehee, Due Process of 
 Law, 71 ; Goodnow, The Principles of the Administrative Law of the 
 United States, 33, 95; and see remarks of Christiancy, J., in People v. 
 Hurlburt, (1874) 24 Mich. 44, 63. 
 
 8 On the power of a legislature to appoint its own subordinate officers 
 and to conduct investigations which are not acts of a legislative nature, 
 and on the power of a court to appoint its own subordinate officers and 
 to exercise analogous powers which are not acts of a judicial nature, 
 see the discussion in Board of Comrs. v. Gwin, (1894) 136 Ind. 562, 
 36 N. E. 237; Goodnow, The Principles of the Administrative Law of 
 the United States, 37, 41, 446-448; Bondy, The Separation of Govern- 
 mental Powers, (Columbia University Studies) 34, 70, 76, 84, 114, 115, 
 122, 138; Black, Constitutional Law, 2d ed., p. 76; In re Janitor of 
 Supreme Court, (18*74) 35 Wis. 410; In re Chapman, (1897) 166 U. S. 
 661, 17 Sup. Ct. 677; State v. Pierre, (1908) 121 La., 46 So. 574. And 
 see 6 A. & E. Enc. of L., 2d ed., 1007; 21 Harv. L. Rev. 161. Compare 
 
4 RATE REGULATION AND THE DISTRIBUTION 
 
 and even exceptions, which appear in some constitutions, 
 which directly affect rate regulation, do not lessen the posi- 
 tiveness of the rule in unexcepted cases. 
 
 It is, however, important that we notice that the distri- 
 bution of powers is not complete, so that while some powers 
 may be exercised only by the legislature, others only by an 
 administrative organ, and still others only by the courts, 
 there are also powers which are not definitely assigned by 
 the constitutions and which may, therefore, be exercised by 
 the legislature itself or be assigned by it to one of the other 
 departments. 6 Moreover, the legislature may grant some 
 self-government to the localities. 7 In so doing it is not 
 
 the authorities cited in note 22, infra. The actual decision in Kilbourn 
 v. Thompson, (1880) 103 U. S. 168, was simply that the federal House 
 of Representatives did not have authority to make the particular inves- 
 tigation there considered. 
 
 8 See Cooley, Constitutional Law, 3d ed., 45, 46 ; Bondy, The Separa- 
 tion of Governmental Powers, (Columbia University Studies) 79, 80; 
 Stevens, Sources of the Constitution of the United States, 49; Toncray 
 v. Budge, (1908) Idaho, 95 Pac. 26; Incorporated Village of Fairview v. 
 Giffee, (1905) 73 Ohio St. 183, 76 N. E. 865; State v. Struble, (1905) 19 
 S. D. 646, 104 N. W. 465; State v. Bates, (1905) 96 Minn, no, 104 
 N. W. 709; Paul v. Glouceste- County, (1888) 50 N. J. L. 585, 611, 15 
 Atl. 272, 284; Brown v. Turner, (1874) 70 N. C. 93, 102; 6 A. & E. Enc. 
 of L., 2d ed., 1007; Ross v. Whitman, (1856) 6 Cal. 361; Opinion of 
 Justices, (1885) 138 Mass. 601 ; page 10, infra, and note 66, infra. And 
 there are powers which other organs may exercise until forbidden by 
 the legislature : see, e. g., 8 A. & E. Enc. of L., 2d ed., 29, 30 ; compare 
 note 22, infra. 
 
 T Cooley, Constitutional Limitations, 7th ed., 165, 172, 263, 264; 8 Cyc. 
 837; 6 A. & E. Enc. of L., 2d ed., 1027, 1024; 28 id. 160; Dillon, Mu- 
 nicipal Corporations, 4th ed., sec. 308; Goodnow, The Principles of the 
 Administrative Law of the United States, 37 ; and see Oberholtzer, The 
 Referendum in America, 324, 332, 334; Sutherland, Statutory Con- 
 struction, 2d ed., p. 170. Compare Elliott v. City of Detroit, (1899) 121 
 Mich. 611, 84 N. W. 820; In re Municipal Suffrage to Women, (1894) 
 160 Mass. 586, 36 N. E. 488, 23 L. R. A. 113; Bradshaw v. Lank ford, 
 (1891) 73 Md. 428, 21 Atl. 66, n L. R. A. 582; Sling er v. Henneman, 
 (1875) 38 Wis. 504; Burton v. Dupree, (1898) 19 Tex. Civ. App. 275, 
 46 S. W. 272. Congress may grant local, but only local, powers to the 
 territories: see Stoutenburgh v. Hennick, (1899) 129 U. S. 141, 9 Sup. 
 Ct. 256; and also McCornick v. Western U. T. Co., (1897) 79 Fed. 
 449, 45i; Ansley v. Ainsworth, (1902) 4 Ind. Ter. 308, 69 S. W. 884. 
 It seems that there would be less "refinement of reasoning" (see In re 
 Rahrer, (1891) 140 U. S. 545, 562, 11 Sup. Ct. 865, 869) in sustaining 
 
OF POWERS IN THE CONSTITUTIONS 5 
 
 reassigning power which has been entrusted exclusively to 
 itself, for such limited power has been constantly granted to 
 local authorities from time immemorial, and the general 
 language of the constitutions is interpreted in accordance 
 with this custom, since contemporary history does not fur- 
 nish any reason for thinking that those who adopted the 
 constitutions intended to abolish the custom. And, of 
 course, the fact that a constitution assigns a given power 
 to one organ of the central government does not of itself 
 oblige the legislature when it bestows a similar power over 
 strictly local matters upon an organ of local government to 
 bestow it upon a similar organ. 8 
 
 local option and similar laws upon the ground given in the text than 
 in sustaining them upon the ground which is usually given: Paul v. 
 Gloucester County, (1888) 50 N. J. L. 585, 594, 600, 603, 604, 15 Atl. 
 272, 276, 279, 280; and see Oberholtzer, The Referendum in America, 
 208-217, 324; Cooley, Constitutional Limitations, 7th ed., 168, 169. 
 Compare Field v. Clark, (1892) 143 U. S. 649, 694, 12 Sup. Ct. 495, 505; 
 Sutherland, Statutory Construction, 2d ed., p. 173; Oberholtzer, op. cit., 
 324, 328; Evers v. Hudson, (1907) Mont., 92 Pac. 462, 466, 467; Pouts v. 
 Hood River, (1905) 46 Ore. 492, 81 Pac. 370, I L. R. A. N. S. 483; 
 McGonnell's License, (1904) 209 Pa. 327, 58 Atl. 615; Locke's Appeal, 
 (1873) 72 Pa. St. 491, 508. On the other hand, it is submitted that dele- 
 gations of power to state boards cannot properly be based upon this 
 exception to the general rule, however defensible they may sometimes 
 be upon another ground. Consider Brodbine v. Revere, (1903) 182 
 Mass. 598, 66 N. E. 607; People v. Harper, (1878) 91 111. 357, 370; 
 Pierce v. Doolittle, (1906) 130 Iowa, 333, 336, 106 N. W. 751, 752, 6 
 L. R. A. N. S. 143, 145; Tilley v. Savannah, F. & W. R. Co., (1881) 
 5 Fed. 641, 657 ; 19 Harv. L. Rev. 203 ; 20 Harv. L. Rev. 147. 
 
 . ^ * People v. P ravines, (1868) 34 Cal. 520, 532; Eckerson v. City of 
 
 Des MoirieT~Ti988Y'[ovfa~ "115 N. W. 177, 182; Staude v. Board of 
 Election Comrs., (1882) 61 Cal. 313, 322; see also Commonwealth v. 
 Collier, (1905) 213 Pa. 138, 62 Atl. 567; Muhlenberg Co. v. Morehead, 
 (1898) 20 Ky. L. Rep. 376, 46 S. W. 484; Pennington v. Woolfolk, 
 (1880) 79 Ky. 13; Terre Haute v. Evansville & T. H. R. Co., (1897) 149 
 Ind. 174, 46 N. E. 77, 37 L. R. A. 189; Fox v. McDonald, (1893) 101 
 Ala. 51, 69, 13 So. 416, 419; Bondy, The Separation of Governmental 
 Powers, (Columbia University Studies) 179, 183; Goodnow, The Prin- 
 ciples of the Administrative Law of the United States, 35-37 ; and cases 
 there cited. Compare State v. Armstrong, (1907) Miss., 44 So. 809; 
 Mayor v. Dechert, (1870) 32 Md. 369; and also Trustees v. Saratoga 
 G., E. L. 6- P. Co., (1908) 191 N. Y. 123, 83 N. E. 693, 696, 
 
6 RATE REGULATION AND THE DISTRIBUTION 
 
 EXTENT OF POWER OF LEGISLATURE. 
 
 At the time of the American Revolution the British Par- 
 liament had absolute power over the persons and political 
 institutions under British control, subject only to a veto 
 power. 9 By the Revolution the state legislatures acquired 
 similar power over the persons and political institutions of 
 their states, subject to gubernatorial veto, although consti- 
 tutions soon limited their powers and placed some powers 
 in the hands of other governmental organs beyond the 
 reach of legislative exercise or control. 10 And while Con- 
 gress can deal only with subject-matters entrusted to it, 11 
 
 * See Blackstone, Commentaries, I, *QI, *i6o-*i62 ; Lee v. Bude & 
 T. J. Ry. Co., (1871) L. R. 6 C. P. 576, 582; Courtney, The Working 
 Constitution of the United Kingdom, 4; Dicey, The Law of the Consti- 
 tution, 6th ed., 58 et seq.; Hurtado v. People, (1884) no U. S. 516, 531, 
 4 Sup. Ct. in, 292, 119; Slaughter House Cases, (1872) 16 Wall. 36, 65. 
 That veto power has not been exercised since 1707: Anson, The Law 
 and Custom of the Constitution, 3d ed., I, 301. 
 
 ""The legislative power is the supreme authority except as limited 
 by the constitution of the state, and the sovereignty of the people is 
 exercised through their representatives in the legislature unless by the 
 fundamental law power is elsewhere reposed:" McPherson v. Blacker, 
 (1892) 146 U. S. i, 25, 13 Sup. Ct. 3, 7. See also Northwestern N. L. 
 I. Co. v. Riggs, (1906) 203 U. S. 243, 253, 27 Sup. Ct. 126, 128; Suther- 
 land, Statutory Construction, 2d ed., sec. 81 ; Patterson, The United 
 States and the States Under the Constitution, 2d ed., p. 2; Cooley, 
 Constitutional Limitations, 7th ed., 128, 233, 236, 241 ; 6 A. & E. Enc. of 
 L., 2d ed., 934 ; 8 Cyc. 775 ; Black, Constitutional Law, 2d ed., pp. 63, 64 ; 
 Sedgwick, Construction of Statutory and Constitutional Law, 2d ed., 
 154; Goodnow, The Principles of the Administrative Law of the United 
 States, 40; 7 Harv. L. Rev. 422; 32 Am. L. Reg. N. S. 1093, 1097; 
 Dorman v. State, (1859) 34 Ala. 216; Thorpe v. Rutland & B. R. Co., 
 (1854) 27 Vt. 140; Redell v. Moores, (1901) 63 Neb. 219, 230, 231, 88 
 N. W. 243, 247, 55 L. R. A. 740, 744, 745 ; State v. Missouri P. Ry. Co., 
 (1907) Kan., 92 Pac. 606, 613; Ratcliff v. Wichita U. S. Co., (1906) 74 
 Kan. i, 16, 86 Pac. 150, 155; State v. Fountain, (1908) Del., 69 Atl. 926, 
 930; Hardens F. S. & F. Co. v. Chicago, (1908) 111., 85 N. E. 245, 247; 
 dissenting opinion in Abbott v. Bedding field, (1899) 125 N. C. 256, 268, 
 272, 34 S. E. 412, 415, 416; 21 Harv. L. Rev. 383; Century and American 
 Digests, Const Law, II, B, Grant or limitation of power. On the 
 effect of a grant of power to legislate see note 13, infra. With authori- 
 ties in this note compare State v. Moores, (1898) 55 Neb. 480, 490, 76 
 N. W. 175, 177, 41 L. R. A. 624, 627, and authorities there cited (which 
 case was overruled in Redell v. Moores, supra); 32 Am. L. Reg. N. S. 
 3, 784, 971, 1064; 13 Harv. L. Rev. 441; Report of Pennsylvania Bar 
 Assn., VI, 251. 
 
 u Hodges v. United States, (1906) 203 U. S. i, 16, 27 Sup. Ct. 6, 8; 
 
OF POWERS IN THE CONSTITUTIONS 7 
 
 except in regard to the territories, 12 as to such subject- 
 matters its general power is the same as that of state leg- 
 islatures over subject-matters not removed from their con- 
 trol, 13 though it also is under express restrictions and some 
 governmental powers have been placed beyond its exercise 
 or control. In other words, the state legislatures, over sub- 
 ject-matters not withdrawn from their control, and Con- 
 gress, over subject-matters entrusted to it, have all govern- 
 mental powers not entrusted by the constitutions to other 
 organs of government and not withdrawn from the con- 
 trol of those legislative bodies by other provisions of the 
 constitutions. 
 
 It is, therefore, clear that legislative bodies may determine 
 the principles upon which railroad charges shall be based 
 and may themselves ordain specific schedules of rates for 
 future transportation, unless those powers, or either of 
 them, have been entrusted exclusively to another organ of 
 government by the constitutional provisions which assign 
 judicial powers to the courts or by those which assign ad- 
 ministrative powers to administrative organs, or unless the 
 legislatures are restrained by other constitutional provisions 
 which we need not here consider. 
 
 The question whether a legislature in making enactments 
 of the character referred to would entrench upon the power 
 
 United States v. Harris, (1883) 106 U. S. 629, 635, I Sup. Ct. 601, 606; 
 Kansas v. Colorado, (1907) 206 U. S. 46, 81, 87, 88, 89, 92, 27 Sup. Ct. 
 655,661,663,664,665. 
 
 "National Bank v. County of Yankton, (1879) 101 U. S. 129; 
 Utter v. Franklin, (1899) 172 U. S. 416, 423, 19 Sup. Ct. 183, 186; 
 Mormon Church v. United States, (1890) 136 U. S. I, 42, 43, 10 Sup. 
 Ct. 792, 802, 803. See also De Lima v. Bidwell, (1901) 182 U. S. I, 
 196, 21 Sup. Ct. 743, 753; Shively v. Bpwlby, (1894) 152 U. S. i, 48, 14 
 Sup. Ct. 548, 566; Patterson, The United States and the States Under 
 the Constitution, 2d ed., pp. 8, 9. 
 
 18 See Patterson, The United States and the States Under the Con- 
 stitution, 2d ed., p. 17; Juilliard v. Greenman, (1884) no U. S. 421, 
 447-450, 4 Sup. Ct. 122, 129-131; Burton v. United States, (1906) 202 
 U. S. 344, 366, 367, 26 Sup. Ct. 688, 693; Chinese Exclusion Case, (1889) 
 130 U. S. 581, 603, 604, 9 Sup. Ct. 623, 629; Gibbons v. Ogden, (1824) 
 9 Wheat, i, 196, 197; McMurtrie, Observations on Mr. George Ban- 
 croft's Plea for the Constitution, 24, 25. 
 
8 RATE REGULATION AND THE DISTRIBUTION 
 
 of an administrative organ has apparently never arisen, 
 and it is doubtful whether such a contention will ever be 
 made. We must, however, consider the question whether 
 legislative enactments of that character would entrench 
 upon the power of the courts. 
 
 It is true that, in the absence of statute, the courts may, 
 in cases properly before them, determine the amount which 
 a common carrier may charge for services rendered by it. 14 
 But there is a clear distinction between applying an exist- 
 ing rule of law (in that case the common law) and adopt- 
 ing a new and possibly different rule of law for relations 
 which may exist in the future. 15 The legislature, in reg- 
 ulating rates, is not deciding what the rights of parties are 
 at the time the schedule is enacted. It is not interpreting 
 the common law. It is adopting for the future a rule which 
 supersedes that law. 
 
 And certainly the legislature may change the common 
 law. 16 The only legal restrictions upon legislative action 
 
 "Stern v. Metropolitan T. & T. Co., (1897) 46 N. Y. Supp. no, 
 19 N. Y. App. Div. 316; Cook 6- Wheeler v. Chicago, R. I. & P. Ry. 
 Co., (1890) 81 Iowa, 551, 46 N. W. 1080, 9 L. R. A. 764; Menacho v. 
 Ward, (1886) 27 Fed. 529. Even without such decisions, it would seem 
 to follow from the fact that a common carrier cannot refuse to carry : 
 Jackson v. Rogers, (1683) 2 Show. 327, that the carrier cannot escape 
 this duty by charging whatever it pleases. 
 
 ""It is one thing to inquire whether the rates which have been 
 charged and collected are reasonable that is a judicial act; but an 
 entirely different thing to prescribe rates which shall be charged in the 
 future that is a legislative act:" Interstate Com. Comn. v. Cincinnati, 
 N. O. & T. P. Ry. Co., (1897) 167 U. S. 479, 499, 17 Sup. Ct. 896, 900. 
 See also 167 U. S. 505, 17 Sup. Ct. 902 ; McChord v. Louisville 6- N. R. 
 Co., (1902) 183 U. S. 483, 495, 22 Sup. Ct. 165, 169; State v. Johnson, 
 (1900) 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662; Western U. T. Co. 
 v. Myatt, (1899) 98 Fed. 335; Shephard v. City of Wheeling, (1887) 30 
 W. Va. 479, 4 S. E. 635. Cases sustaining legislative regulation are 
 cited in Atlantic C. L. R. Co. v. North C. Corp. Comn., (1907) 206 U. S. 
 i, 19, 27 Sup. Ct. 585, 591- 
 
 "See Munn v. Illinois, (1876) 94 U. S. 113, 134; West v. Louisiana, 
 (1904) 194 U. S. 258, 262, 24 Sup. Ct. 650, 652; Dilworth v. Schuylkill 
 I. L. Co., (1908) 219 Pa. 527, 530, 69 Atl. 47, 48; Sutherland v. Gov- 
 ernor, (1874) 29 Mich. 320, 325, 326; Blackstone, Commentaries, I, *89; 
 6 A. & E. Enc. of L., 2d ed., 1034, 1035 ; and notes 9 and 10, supra. In 
 Reagan v. Farmers' L. & T. Co., (1894) 154 U. S. 362, 397, 14 Sup. Ct. 
 1047, 1054, the court, after saying correctly, "It is doubtless true, as a 
 general proposition, that the formation of a tariff of charges for the 
 
OF POWERS IN THE CONSTITUTIONS 9 
 
 are those imposed by the constitutions. If a principle of 
 the common law has been inserted in the constitutions it is 
 binding upon the legislatures not as a principle of the com- 
 mon law but as a provision of the constitutions. And the 
 fact that courts enforce compliance with some constitutional 
 provisions certainly does not show that rate regulation is 
 judicial in its nature. 17 
 
 Nor do the constitutional provisions now under consid- 
 eration oblige the legislature to state merely general prin- 
 ciples and leave to the courts the statement of the appli- 
 cation of those principles to particular circumstances which 
 may exist thereafter. The legislature may do so, unques- 
 
 transportation by a common carrier of persons or property is a legis- 
 lative or administrative rather than a judicial function," goes on to say, 
 "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 reason- 
 able charge. The province of the courts is not changed, nor the limits 
 of judicial inquiry altered, because the legislature instead of the carrier 
 prescribes the rates." This reference to the common law as furnishing 
 a ground for judicial inquiry into the propriety of rates named by a 
 governmental authority is clearly inappropriate. And the reason given 
 for the decision in Chicago, M. & St. P. Ry. Co. v. Minnesota, (1890) 
 134 U. S. 418, 10 Sup. Ct. 462, 702, is likewise unsound. See Noyes, 
 American Railroad Rates, 250; Steenerson v. Great N. Ry. Co., (1897) 
 69 Minn. 353, 375, 72 N. W. 713, 716; San Diego L. & T. Co. v. 
 National City, (1899) 174 U. S. 739, 754, 19 Sup. Ct. 804, 810. 
 
 " The court of last resort said in Monongahela N. Co. v. United 
 States, (1893) 148 U. S. 312, 327, 13 Sup. Ct. 622, 626, that the amount 
 of compensation to which the owner of property taken by the federal 
 government is entitled is, in view of the just compensation provision 
 of the Fifth Amendment, strictly a judicial question. It is submitted 
 that this statement is incorrect and that in any event it is inapplicable 
 to rate regulation. Conceding that if the owner be not given what the 
 court considers just compensation the court may declare the taking 
 unconstitutional, it certainly doer not follow that the court may fix 
 the amount of compensation in the first instance or may apply any but 
 constitutional tests to the amount fixed. Indeed, the court also said in 
 the same opinion that the decision of Congress is not conclusive, 
 although without recognizing that this position is far different from the 
 one already referred to. And even if the court had actually decided the 
 case in accordance with its extremest language, we should still have 
 many earlier and later declarations by the same court that the prescrib- 
 ing of future rates is a legislative or administrative act. See, e. g., 
 Chicago, M. & St. P. Ry. Co. v. Tompkins, (1900) 176 U. S. 167, 173, 
 20 Sup. Ct. 336, 338, and notes 15, supra, and 41, 55 and 56, infra. 
 
10 RATE REGULATION AND THE DISTRIBUTION 
 
 tionably, but it is not obliged to do so. The power of legis- 
 lative bodies to enact detailed legislation, unless expressly 
 forbidden by other provisions of the constitutions, is too 
 well recognized to be open to dispute. If the legislature 
 does not attempt to determine whether the conduct of in- 
 dividuals complies with regulations which it has laid down, 
 it does not infringe upon any power which is bestowed ex- 
 clusively upon the courts by the constitutional provisions 
 which grant to them judicial power. 
 
 In addition to the regulative power which may be exer- 
 cised only by the legislature 18 (except in so far as that 
 body authorizes local self-government) 19 the legislature pos- 
 sesses powers which other organs of government may ex- 
 ercise but may not exercise exclusively : thus there are many 
 administrative regulations which it may enact itself or the 
 making of which it may entrust to administrative organs, 20 
 and it may, within limits which we need not here consider, 
 make regulations concerning the internal organization and 
 methods of operation of both administrative 21 and judicial 22 
 organs, or it may entrust that power to the organs con- 
 cerned. 23 
 
 " See note 26, infra. 
 
 " See note 7, supra. 
 
 10 See note 6, supra, and the discussion of delegation of power, infra. 
 
 21 See Goodnow, The Principles of the Administrative Law of the 
 United States, 123, 125. 
 
 22 Brown on Jurisdiction, sec. 14 ; Wigmore on Evidence, sees. 7> 
 T 353 !354 > Bondy, The Separation of Governmental Powers, (Col- 
 umbia University Studies) 31, 100; Banks v. State, (1905) 124 Ga. 15, 
 52 S. K 74; State v. Barrett, (1905) 138 N. C. 630, 50 S. E. 506, I L. R. 
 A. N. S. 626; In the Matter of the Estate of Stilwell, (1893) 139 N. Y. 
 337, 34 N. E. 777; Whiting v. Townsend, (1881) 57 Cal. 515; Cooper's 
 Case, (1860) 22 N. Y. 67, 90; note 5, supra. See also State v. Pierre, 
 (1908) 121 La., 46 So. 574; Memphis St. Ry. Co. v. Byrne, (1907) 
 Tenn., 104 S. W. 460, 470; People v. Hayne, (1890) 83 Cal. in, 23 Pac. 
 i, 7 L. R. A. 348; Brady v. Carter et R. Co., (1907) 70 N. J. E. 748, 67 
 Atl. 606. Compare In re Day, (1899) 181 111. 73, 54 N. E. 646, 50 L. 
 R. A. 519; Herndon v. Imperial F. I. Co., (1892) in N. C. 384, 16 
 S. E. 465, 18 L. R. A. 547; State v. Noble, (1889) 118 Ind. 350, 21 N. 
 E. 244, 4 L. R. A. 101; Houston v. Williams, (1859) *3 Cal. 24; Cal- 
 vert v. Carstarphen, (1903) 133 N. C. 25, 45 S. E. 353; Ex parte Grif- 
 fiths, (1889) 118 Ind. 83, 20 N. E. 513, 3 L. R. A. 398; Bondy, op. cit., 
 168; and also In re Janitor of Supreme Court, (1874) 35 Wis. 410. 
 
 * Way man v. Southard, (1825) 10 Wheat I, 42, 43, 46; Bank of the 
 
OF POWERS IN THE CONSTITUTIONS II 
 
 LIMITED POWER OF ADMINISTRATIVE ORGANS. 
 
 Administrative organs possess only the powers which 
 have been entrusted to them by a constitution or by legisla- 
 tion. 24 Passing over clear grants of power by the consti- 
 tutions with the remark that they may confer upon organs 
 which are granted administrative power more than merely 
 administrative power, and that in such cases decisions con- 
 cerning merely administrative bodies may be inapplicable to 
 such organs, and, conversely, decisions concerning them 
 may be inapplicable to merely administrative organs, we 
 shall inquire simply what portion of the power which may 
 be exercised by the legislature may be granted by the legis- 
 lature to administrative bodies without infringing the dis- 
 tribution of powers which is usually made by the constitu- 
 tions. 
 
 DELEGATION OF POWER BY LEGISLATURE. 
 
 The courts have frequently determined that, except with 
 reference to local affairs, 25 a legislature may not delegate 
 
 U. S. v. Halstead, (1825) 10 Wheat. 51, 61; Hudson v. Parker, (1895) 
 156 U. S. 277, 15 Sup. Ct. 450; Cooke v. Avery, (1893) 147 U. S. 375, 13 
 Sup. Ct. 340; Stevens v. Truman, (1899) 127 Cal. 155, 59 Pac. 397; 
 White v. Toledo, St. L. & K. C. R. Co., (1897) 79 Fed. 133 ; Winston v. 
 Stone, (1897) 102 Ky. 423, 43 S. W. 397; Anderson v. Levely, (1882) 
 58 Md. 192; Thompson v. Floyd, (1855) 2 Jones' L. (N. C.) 313. See 
 also State v. Struble, (1905) 19 S. D. 646, 104 N. W. 465; Atlantic E. 
 Co. v. Wilmington & W. R. Co., (1892) in N. C. 463, 16 S. E. 393, 
 18 L. R. A. 393; Hildreth v. Crawford, (1884) 65 Iowa, 339, 343; 
 Coleman v. Newby, (1871) 7 Kan. 82; 8 Cyc. 835; note 6, supra. 
 
 2 * See Interstate Com. Comn. v. Cincinnati, N. O. & T. P. Ry. Co., 
 (1897) 167 U. S. 479, 17 Sup. Ct. 896; Interstate Com. Comn. v. 
 Alabama M. Ry. Co., (1897) 168 U. S. 144, 18 Sup. Ct. 45; Board of R. 
 Comrs. v. Oregon Ry. & Nav. Co., (1888) 17 Ore. 65, 19 Pac. 702, 2 L. 
 R. A. 195; United States v. Eaton, (1892) 144 U. S. 677, 12 Sup. Ct. 764; 
 Morrill v. Jones, (1883) 106 U. S. 466, I Sup. Ct. 423; 23 A. & E. Enc. 
 of L., 2d ed., 653 ; Goodnow, The Principles of the Administrative Law 
 of the United States, 46, 47, 95; People v. Healy, (1907) 231 111. 629, 
 83 N. E. 453. 
 
 25 On the power of the legislature to allow localities to govern them- 
 selves in some respects, see note 7, supra. That administrative and 
 judicial organs may be allowed to make regulations concerning their 
 own internal organization and methods of operation (see note 23, 
 supra) hardly seems to be an exception to the general rule. 
 
12 RATE REGULATION AND THE DISTRIBUTION 
 
 its power of deciding questions of public policy, 26 and in 
 this article the validity of that rule will be assumed. 27 On 
 the other hand, although rate regulation may involve ques- 
 
 28 In the following cases among others it has been actually decided 
 that power which is strictly legislative may not be delegated, and there 
 are dicta to that effect in many other cases: Central of Ga. Ry. Co. v. 
 Railroad Comn., (1908) 161 Fed. 925, 985 (where the statute dealt with 
 rate-making by commission) ; State v. Great N. Ry. Co., (1907) 100 
 Minn. 445, in N. W. 289; Vallelly v. Board of Park Comrs., (1907) N. 
 D., in N. W. 615; United States v. Matthews, (1906) 146 Fed. 306; 
 
 /V. 941, 
 
 D. 532, 105 N. W. 724; King v. Concordia F. I. Co., (1905) 140 Mich. 
 258, 103 N. W. 616; Phoenix I. Co. v. Perkins, (1905) 19 S. D. 59, 
 101 N. W. uio; State v. Rogers, (1905) 71 Ohio St. 203, 73 N. E. 461 ; 
 Mitchell v. State, (1902) 134 Ala. 392, 32 So. 687; Gilhooly v. City of 
 Elizabeth, (1901) 66 N. J. L. 484, 49 Atl. 1106; Noel v. People, (1900) 
 187 111. 587, 58 N. E. 616; Johnstown C. Assn. v. Parker, (1899) 45 
 N. Y. App. Div. 55, 60 N. Y. Supp 1015; Inhabitants of Township of 
 Bernards v. Allen, (1898) 61 N. J. L. 228, 39 Atl. 716; In re Incorpora- 
 tion of North Milwaukee, (1896) 93 Wis. 616, 67 N. W. 1033; D owl- 
 ing v. Lancashire I. Co., (1896) 92 Wis. 63, 65 N. W. 738; Hovey v. 
 Commissioners of Wyandotte Co., (1896) 56 Kan. 577, 44 Pac. 17; 
 Anderson v. Manchester F. A. Co., (1895) 59 Minn. 182, 191, 63 N. W. 
 241, 28 L. R. A. 609, 610; O'Neil v. American F. I. Co., (1895) 166 Pa. 
 72, 30 Atl. 943, 26 L. R. A. 715; State v. Gaster, (1893) 45 La. An. 
 636, 12 So. 739; Board of Harbor Comrs. v. Excelsior R. Co., (1891) 
 88 Cal. 491, 26 Pac. 375; King v. Tennessee, (1889) 87 Tenn. 304, 10 S. 
 W. 509, 3 L. R. A. 210; Ex parte Cox, (1883) 63 Cal. 21; Pilkey v. 
 Gleason, (1856) i Iowa, 522; Barto v. Himrod, (1853) 8 N. Y. 483; 
 State v. Field, (1853) J 7 Mo. 529. See also Commonwealth v. Addams, 
 (1894) 95 Ky. 588, 26 S. W. 581; State v. Gaunt, (1885) 13 Ore. 115, 
 9 Pac. 55; Kehler & Bro. v. Jack M. Co., (1876) 55 Ga. 639; and end 
 of note 2, supra. But, of course, the fact that Locke (On Civil Gov- 
 ernment, sec. 142) declared broadly that a legislature may not trans- 
 fer the power of making laws, while it may cast some light upon the 
 intentions of those who long afterwards adopted the American con- 
 stitutions, does not except for that purpose have any value whatever. 
 Concerning Locke's book see also Stephen, Horae Sabbaticae, II, 155, 
 156. 
 
 "The rule can be based only upon the purpose of those who, in 
 adopting the constitutions, distributed governmental powers. This pur- 
 pose the courts have usually sought by reading the distributive clauses 
 not in the light of political theories predominant when the constitutions 
 were adopted but in the light of the common law principle that an 
 agent may not delegate his powers, although the state legislatures, and 
 apparently Congress, resemble Parliament more closely than they re- 
 semble mere agents. And, since the legislature may delegate some of 
 its powers : see notes 6, 23, supra, and 29, 59, 69, et seq., infra, the 
 common law does not furnish a complete interpretation of the pro- 
 visions. The men who adopted the various constitutions were in- 
 fluenced by a theory which was based upon an appreciative generaliza- 
 tion of governmental conditions which, as some of those who adopted 
 
OF POWERS IN THE CONSTITUTIONS 13 
 
 tions of public policy, 28 there are decisions that at least 
 some specific rates named by commission are valid. 29 
 
 the constitutions realized, did not fully accord with that generalization ; 
 and in many of the constitutions it is not clear how closely those who 
 adopted them intended that theory to be followed in interpreting 
 general provisions. See The Federalist, Nos. 47 et seq.; Stevens, 
 Sources of the Constitution of the United States, 41, 42, 47, 48, 49, 57, 
 154. I55> 177- With the exception of Marr v. Enloe, (1830) I Yerg. 
 (Tenn.) 452, where that was one of the grounds of the decision, there 
 seems to have been no case before 1847 in which legislation was actu- 
 ally declared unconstitutional upon the ground that legislative power 
 was delegated. And since then the courts as a general rule certainly 
 have not followed any theory consistently and intelligently. To an 
 amazing extent the decisions are either based upon fictions or based 
 upon cases which do not apply or the opinions do not notice distinctions 
 which are admitted by all who consider such distinctions. In spite of 
 frequent declarations by the courts that legislative power may not 
 be delegated, such opinions and decisions cast some doubt upon the 
 propriety of their ever declaring legislation unconstitutional upon the 
 ground that a constitution impliedly forbids a delegation of legislative 
 power: see 21 Harv. L. Rev. 206; Thayer, Life of Marshall, chap. 5. 
 Yet if it is clear that the legislature may not delegate a power which 
 another organ attempts to exercise, the courts have a stronger reason 
 for declaring that exercise unconstitutional than they ordinarily have 
 for declaring the action of another department of government in- 
 valid, for the right of courts to decide whether legislation has been 
 passed by the body prescribed by the constitution is clearer than their 
 right to decide whether legislation passed in the proper manner is 
 constitutional: see language of Gibson, J., dissenting, in Eakin y. 
 Raub, (1825) 12 S. & R. (Pa.) 330, 349, 354. The court said in 
 
 Chicago & N. W. Ry. Co. v. Dey, (1888) 35 Fed. 866, 874, i L. R. A. 
 744, 750, "After all, the question is one more of form than of sub- 
 stance. The vital question with both shipper and carrier is that the 
 rates shall be just and reasonable, and not by what body they shall be 
 put in force." To just as great an extent the question whether the 
 President may order the punishment of a counterfeiter without trial is 
 one "more of form than of substance." And so is the question whether 
 in a common law suit in a federal court where the value in controversy 
 exceeds twenty dollars the defendant may be denied a trial by jury. 
 But the men who adopted some of our constitutions, at least, con- 
 sidered the forms of government important : see Pollock's Maine's An- 
 cient Law, 175; Thayer, The Origin and Scope of the American Doc- 
 trine of Constitutional Law, 7 Harv. L. Rev. 137, note. 
 
 * See pp. 40, 42, infra. 
 
 "State v. Chicago, M. & St. P. Ry. Co., (1888) 38 Minn. 281, 37 
 N. W. 782; Georgia R. 6- B. Co. v. Smith, (1883) 70 Ga. 694; Tilley v. 
 Savannah, F. 6- W. R. Co., (1881) 5 Fed. 641; McWhorter v. Pen- 
 sacola 6- A. R. Co., (1888) 24 Fla. 417, 5 So. 129, 2 L. R. A. 504; 
 Storrs v. Pensacola & A. R Co., (1892) 29 Fla. 617, n So. 226; and 
 see Trustees v. Saratoga G., E. L. & P. Co., ( 1908) 191 N. Y. 123, 83 N. 
 E. 693; Stone v. Yazoo & M. V. R. Co., (1885) 62 Miss. 607, 645, 21 A. 
 & E. R. Cas. 6, 16; Stone v. Natchez, J. & C. R. Co., (1885) 62 Miss. 646, 
 21 A. & E. R. Cas. 17; People v. Harper, (1878) 91 111. 357; Southern 
 Ry. Co. v. Hunt, (1908) Ind. App., 83 N. E. 721; Chicago, I & L. Ry. 
 
14 RATE REGULATION AND THE DISTRIBUTION 
 
 Calling attention to these two lines of cases, it is submit- 
 ted that the legislature is the only governmental body which 
 may determine the principles upon which rates shall be reg- 
 ulated, and that while the legislature, when it names specific 
 rates, need not disclose the principles upon which it acts or 
 even consciously adopt any principles, that body may not 
 grant to any other organ of government any power what- 
 ever to name specific rates for future transportation with- 
 out first laying down principles sufficient for the guidance 
 of that organ, although after the legislature has determined 
 the principles upon which rates shall be regulated it may 
 grant to an administrative organ power to name rates in 
 accordance with those principles, the power of that organ 
 depending upon the completeness with which principles have 
 been stated for its guidance. 30 
 
 Co. v. Railroad Comn., (1906) 38 Ind. App. 439, 450, 451, 78 N. E. 338, 
 342, 79 N. E. 520. Compare Central of Ga. Ry. Co. v. Railroad Comn., 
 (1908) 161 Fed. 925, 985. We must distinguish from the above cases 
 the cases in which other courts have sustained other statutes which 
 declared that the determinations of the commissions should con- 
 stitute prima facie evidence of what were the lawful rates : Chicago, B. 
 6- Q. R. Co. v. Jones, (1894) 149 111. 361, 37 N. E. 247, 24 L. R. A. 
 141; Chicago & N. W. Ry. Co. v. Dey, (1888) 35 Fed. 866, i L. R. A. 
 744; Tift v. Southern Ry. Co., (1905) 138 Fed. 753, affirmed, 
 Southern Ry. Co. v. Tift, (1907) 206 U. S. 428, 27 Sup. Ct. 709; State 
 v. Minneapolis & St. L. R. Co., (1900) 80 Minn. 191, 83 N. W. 60; 
 Burlington, C. R. & N. Ry. Co. v. Dey, (1891) 82 Iowa, 312, 48 N. W. 
 98, 12 L. R. A. 436; State v. Freemont, E. 6- M. V. R. Co., (1888) 23 
 Neb. 117, 36 N. W. 305, (1887) 22 Neb. 313, 35 N. W. 118. The 
 question of delegation of power was discussed only in the Illinois case, 
 the case in 35 Fed., and in State v. Missouri P. Ry. Co., (1907) Kan., 
 92 Pac. 606; Atlantic E. Co. v. Wilmington & W. R. Co., (1892) in 
 N. C. 463, 16 S. E. 393, 18 L. R. A. 393, in the last two of which the 
 remarks were dicta. (See also Corporation Comn. v. Seaboard A. L. 
 System, (1900) 127 N. C. 283, 288, 37 S. E. 266, 268.) And Portland & 
 6. C. R. Co. v. Grand T. Ry. Co., (1858) 46 Me. 69; Vermont 6- M. 
 R. Co. v. Fitchburg R. Co., (1852) 63 Mass. (9 Cush.) 369, were far 
 different from the above: in each case the court, under statutory au- 
 thority, appointed commissioners to determine the rates which under 
 existing law one party to the action might charge the other party. State 
 statutes upon rate regulation by commission are collected in Beale & 
 Wyman, Railroad Rate Regulation, p. 1081 et seq. 
 
 * So also it seems that a legislature cannot constitutionally grant 
 to a commission power to permit or to refuse to permit combinations 
 between competing carriers without first laying down principles for the 
 guidance of the commission. It is obvious to any one who examines 
 the question dispassionately that some combinations between com- 
 
OF POWERS IN THE CONSTITUTIONS 15 
 
 Some of the courts in sustaining laws which authorized 
 commissions to name rates for future transportation have 
 said that, as economic conditions change from time to time, 
 rates can be named better by a commission than by -the 
 legislature, which is not constantly in session. 31 This argu- 
 ment from convenience is certainly a strong one; and deci- 
 sions that railroad commissions may name specific rates do 
 not necessarily conflict with the decisions that the legisla- 
 ture alone may determine the principles upon which the 
 government shall be conducted. 
 
 In declaring that a state might empower a commission to 
 regulate charges for gas and electric service, a court has 
 said that conditions in the several localities differed so 
 greatly that the legislature could not justly establish uni- 
 form rates for the entire state and that it would not be 
 practicable for the legislature itself to establish rates in 
 each of the communities. 32 And the same position might 
 properly be taken with regard to charges for transporta- 
 tion. In both cases it is true that the legislature cannot 
 satisfactorily do more than declare the principles which the 
 commission shall apply; although in neither case does it 
 
 peting carriers are decidedly in the interest of the public, that some 
 are not injurious, while still others may prove to be against the public 
 interest. These combinations admit of classification, and it is the duty 
 of the legislature, when regulating them or when providing for their 
 regulation, to declare the lines of division or the principles by which 
 those lines may be clearly ascertained. A statute of Minnesota which 
 attempted to delegate to a commission an unrestrained veto power over 
 proposed increases in the capitalization of railroads incorporated in that 
 state was declared unconstitutional in State v. Great N. Ry. Co., (1907) 
 100 Minn. 445, in N. W. 289, 10 L. R. A. N. S. 250. 
 
 n State v. Chicago, M. & St. P. Ry. Co., (1888) 38 Minn. 281, 37 N. 
 W. 782; Georgia, R. & B. Co. v. Smith, (1883) 70 Ga. 694; Tilley v. 
 Savannah, F. & W. R. Co., (1881) 5 Fed. 641. See also McWhorter v. 
 Pensacola & A. R. Co., (1888) 24 Fla. 417, 5 So. 129, 2 L. R. A. 504; 
 Chicago & N. W. Ry. Co. v. Dey, (1888) 35 Fed. 866, i L. R. A. 744; 
 Trustees v. Saratoga G., E. L. & P. Co., (1908) 191 N. Y. 123, 83 N. E. 
 693, 699- 
 
 83 Trustees v. Saratoga G., E. L. 6- P. Co., (1908) 191 N. Y. 123, 
 83 N. E. 693. And see State v. Chicago, M. & St. P. Ry. Co., (1888) 
 38 Minn. 281, 37 N. W. 782; Georgia R. & B. Co. v. Smith, (1883) 70 
 Ga. 694. For other practical arguments in support of the delegation of 
 power to administrative organs, see Young, The Relation of the Ex- 
 ecutive to the Legislative Power, Proc. Am. Pol. Sci. Assn., I, 47. 
 
1 6 RATE REGULATION AND THE DISTRIBUTION 
 
 follow that the commission may be allowed to decide what 
 those guiding principles shall be. 
 
 Some of the courts have also sustained statutes which 
 authorized commissions to name rates upon the ground that 
 in those statutes the legislatures had declared what the law 
 should be and had left to the commissions questions of 
 fact. 33 Certainly where definite standards are established 
 
 33 See Trustees v. Saratoga G., E. L. & P. Co., ( 1908) 191 N. Y. 123, 
 83 N. E. 693, 700, where the commission was empowered to determine 
 what were reasonable maximum rates ; and State v. Chicago, M. & St. 
 P. Ry. Co., (1888) 38 Minn. 281, 300, 302, 37 N. W. 782, 787, 788, 
 where the statute provided that the charges should be equal and rea- 
 sonable. In view of the illustrations used, the courts apparently had 
 this thought in mind in Tilley v. Savann-ah, F. & W. R. Co., (1881) 5 
 Fed. 641, 657, where the statute provided that if a railroad should 
 charge more than a fair and reasonable rate it should be deemed guilty 
 of extortion, and that a commission should name reasonable and just 
 rates; and in Chicago & N. W. Ry. Co. v. Dey, (1888) 35 Fed. 866, 
 874, where the statute provided that if any railroad "shall charge . . 
 more than a fair and reasonable rate .... or shall make any 
 unjust or unreasonable charge . . . the same shall be deemed 
 guilty of extortion," and required a commission to make a schedule of 
 reasonable and maximum rates, such schedule to be prima facie evi- 
 dence that the rates named therein were reasonable and just maximum 
 rates. In reference to the illustration in the case last cited, we may 
 remark in passing that in declaring that a carrier should be allowed 
 to earn three per cent, for every act of transportation the legislature 
 would be fixing an unpractical standard; and we may question whether 
 in declaring that the company should earn that percentage from its 
 business as a whole the legislature would be furnishing adequate 
 guidance for the regulation of the separate rates. In Georgia R. & B. 
 Co. v. Smith, (1883) 70 Ga. 694, (1888) 128 U. S. 174, 9 Sup. Ct. 47, 
 the statute provided that a railroad charging more than a fair and 
 reasonable rate should be deemed guilty of extortion, and provided for 
 the appointment of commissioners who should make schedules of just 
 and reasonable rates. The state court decided, to use the language of 
 the United States Supreme Court, "that it was expected, not that the 
 legislature would itself make specific regulations as to what should in 
 each case be a proper charge, but that it would simply provide the 
 means by which such rates should be ascertained and enforced." In 
 Chicago, /. & L. Ry. Co. v. Railroad Comn., (1906) 38 Ind. App. 439, 
 451, 78 N. E. 338, 342, 79 N. E. 520; Southern Ry. Co. v. Hunt, (1908) 
 Ind. App., 83 N. E. 721, 725, where the commission was directed, upon 
 complaint, to determine whether the rates charged were just and rea- 
 sonable, and, if not, to fix just and reasonable rates, the court spoke 
 of the decisions of the commission as to whether a railroad's charges 
 were just and reasonable as determinations of questions of fact. In the 
 Indiana cases, however, the court was not discussing the question of 
 delegation of legislative power. See also cases cited in note 29, supra, 
 concerning statutes by which the rates named by commissions furnished 
 prima facie evidence as to what were the lawful rates. 
 
OF POWERS IN THE CONSTITUTIONS 17 
 
 by statute a grant of power to ascertain and state what 
 rates will conform to those standards does not violate the 
 rule that legislative power may not be delegated. This prin- 
 ciple cannot be disputed. The only question is whether the 
 statutes have in reality left to the commissions merely the 
 determination of matters of fact. To this question, how- 
 ever, the courts have given but very little consideration. 
 
 On the other hand, the suggestion which has been made 
 in support of commission-made rates 34 that because the leg- 
 islature may for historical reasons grant some self-govern- 
 ment to localities 35 it may delegate legislative power to 
 other governmental organs is entirely unconvincing. The 
 fact that there is one exception to the rule does not justify 
 the creation of new exceptions. And since the distributive 
 clauses of the state constitutions do not apply to local gov- 
 ernments 36 but do apply to the central governments of 
 those states, there is obviously nothing in the argument, 
 which was made in support of rate regulation by a gas and 
 electricity commission, 37 that because a power may be 
 granted to administrative officers of a locality similar power 
 may be granted to administrative officers of the state. 
 
 Two opinions also refer to laws declaring that the judici- 
 ary may make rules of court. 38 But allowing an organ to 
 regulate procedure before itself is far different from allow- 
 ing an organ to make rules of substantive law. And the 
 contention that authorizing a commission to name rates is 
 similar to allowing the companies concerned to name their 
 own rates 39 is likewise unsound. A commission acts as an 
 
 "See Tilley v. Savannah, F. & W. R. Co., (1881) 5 Fed. 641; and 
 also People y. Harper, (1878) 91 111. 357. The opinion in the latter 
 case is criticised in note 73, infra. 
 
 K See page 4, supra. 
 
 88 See page 5, supra. 
 
 31 Trustees v. Saratoga G., E. L. & P. Co., (1908) 191 N. Y. 123, 83 
 N. E. 693- 
 
 38 State v. Chicago, M. & St. P. Ry. Co., (1888) 38 Minn. 281, 37 
 N. W. 782; Georgia R. & B. Co. v. Smith, (1883) 70 Ga. 694. 
 
 " Tilley v. Savannah, F. & W. R. Co., (1881) 5 Fed. 641, 656; Mc- 
 Whorter v. Pensacola & A. R. Co., (1888) 24 Fla. 417, 5 So. 129, 2 L. R. 
 
l8 RATE REGULATION AND THE DISTRIBUTION 
 
 organ of government it interferes with the conduct of 
 third parties in matters in which the commission is not 
 itself interested; while the officers of a railroad, although 
 doing what some governmental organ might do, do not 
 act as agents of the government but interfere with the con- 
 duct of others only in matters affecting the company 
 itself. 
 
 We shall examine later the position that an administra- 
 tive body may be granted discretion in the establishment of 
 rates. 40 
 
 The United States Supreme Court has never decided how 
 much power may be granted by Congress to the Interstate 
 Commerce Commission, 41 and the question whether the dis- 
 
 A. 504. On the converse of this proposition see Morrow v. Wipf, 
 (1908) S. D., 115 N. W. 1 121, 1127; People v. Board of Election 
 Comrs., (1906) 221 111. 9, 19, 77 N. E. 321, 323, where the courts also 
 failed to notice the distinction, which is pointed out in the text, and 
 declared that a legislature may not allow the officials of a political party 
 to determine the method by which that party shall nominate its candi- 
 dates. The opinions are unconvincing. A legislature certainly does 
 not delegate legislative power when it allows an organization to decide 
 such questions for itself. If those decisions were sound a law which 
 provided that a railroad should charge two cents a mile for passenger 
 transportation unless its appropriate officers should fix different rates, 
 but that such officers might fix different rates, would have to be held 
 unconstitutional as delegating legislative power to the railroad officials. 
 The cases are parallel. On the other hand, in State v. Felton, (1908) 
 77 Ohio St. 554, 577, 84 N. E. 85, 89, the court by a large majority 
 decided that a law which authorized party officials to prescribe the 
 purpose, time, manner and conditions of holding a primary election and 
 the qualifications of electors did not delegate legislative power. See 
 also note 79, infra. 
 
 40 See pages 36-38, infra. 
 
 41 There is a dictum that "Congress might itself prescribe the rates, 
 or it might commit to some subordinate tribunal this duty:" Interstate 
 Com. Comn. v. Cincinnati, N. O. & T. P. Ry. Co., (1897) 167 U. S. 
 479, 494, 17 Sup. Ct. 896, 898. See also Texas & P. Ry. Co. v. Inter- 
 state Com. Comn., (1896) 162 U. S. 197, 216, 16 Sup. Ct. 666, 674; dis- 
 senting opinion in Chicago, M. & St. P. Ry. Co. v. Minnesota, (1890) 
 134 U. S. 418, 464, 10 Sup. Ct. 462, 702, 704; and notes 55, 56, infra. 
 But this dictum does little, if anything, towards settling the point now 
 under discussion. And the same comment must be made upon the 
 following sentence from the opinion in Interstate Com. Comn. v. 
 Chicago G. W. Ry. Co., (1908) 209 U. S. 108, 117, 28 Sup. Ct. 493, 496, 
 "It is unnecessary to define the full scope and meaning of the pro- 
 hibition found in sec. 3 of the Interstate Commerce Act [relating to 
 
OF POWERS IN THE CONSTITUTIONS 19 
 
 tribution of powers by the state constitutions has been vio- 
 lated by any administrative order concerning rates has been 
 before that court only in the Railroad Commission Cases, 42 
 where the state court had already declared that the law 
 there considered did not violate the state constitution 43 
 a decision which was binding upon all other courts. 44 The 
 United States Supreme Court did briefly announce its con- 
 currence with the interpretation which the state court had 
 placed upon the state constitution. 45 But the attention of 
 
 discriminations], or even to determine whether the language is suffi- 
 ciently definite to make the duties cast on the Interstate Commerce Com- 
 mission ministerial, and therefore such as may legally be imposed upon 
 a ministerial body, or legislative, and therefore, under the federal 
 Constitution, a matter for congressional action, for, within any fair 
 construction of the terms 'undue or unreasonable,' the findings of the 
 circuit court place the action of the railroads outside the reach of con- 
 demnation." 
 
 48 (1886) 116 U. S. 307, 347, 352, 6 Sup. Ct. 334, 348, 349, 388, 391, 
 1191; reversing Farmers' L. & T. Co. v. Stone, (1884) 20 Fed. 270; 
 Illinois C. R. Co. v. Stone, (1884) 20 Fed. 468. 
 
 "Stone v. Yazoo & M. V. R. Co., (1885) 62 Miss. 607, 645, 21 A. 
 & E. R. Cas. 6, 16, where the only reference to the subject is as fol- 
 lows: "The act creating the railroad commission is not violative of 
 the I4th Amendment of the Constitution of the United States, or of any 
 provision of the constitution of the state, in that it creates a commis- 
 sion and charges it with the duty of supervising railroads ;" unless there 
 is some reference to the subject in the declaration, "We hold that the 
 state had the right to create an agency of the state to exercise such 
 supervision as it may lawfully employ over railroads within its 
 limits." See comment on Stone v. Natchez, J. & C. R. Co. in note 46, 
 infra. 
 
 44 "If a state court has decided that a law is in harmony with the 
 state constitution its validity, so far as the state constitution is con- 
 cerned, cannot be questioned elsewhere :" Patterson, The United States 
 and the States Under the Constitution, 2d ed., p. 282; and see Smith v. 
 Jennings, (1907) 206 U. S. 276, 278, 27 Sup. Ct. 610, 611; West v. Louis- 
 iana, (1904) 194 U. S. 258, 24 Sup. Ct. 650. 
 
 45 The court stated the contention that the act conferred both legisla- 
 tive and judicial powers on the commission and was therefore repugnant 
 to the constitution of Mississippi, and made simply this reply, "The 
 Supreme Court of Mississippi has decided . . . that the statute is 
 not repugnant to the constitution of the state 'in that it creates a com- 
 mission and charges it with the duty of supervising railroads.' To 
 this we agree, and this is all that need be decided in this case:" 116 
 U. S. 336, 6 Sup. Ct. 347. In Chicago & N. W. Ry. Co. v. Dey, (1888) 35 
 Fed. 866, 875, in answer to the contention that legislative power was 
 delegated to commissioners in the statute there considered, the court 
 said that "the validity of the act of the state of Mississippi, delegating 
 like power to a board of railroad commissioners, was before the Su- 
 
2O RATE REGULATION AND THE DISTRIBUTION 
 
 all the courts which considered that law was devoted almost 
 exclusively to other constitutional questions, 46 so that it 
 seems that even if the Supreme Court had had the right to 
 pass upon the validity of the delegation of power, its deci- 
 sion upon that point would be of no greater value as a 
 precedent than was that casual decision upon the commerce 
 clause in the Granger Cases* 1 which was overruled in 
 W abash, St. L. & P. Ry. Co. v. Illinois** 
 In Chicago, M. & St. P. Ry. Co. v. Tompkins 49 and Min- 
 
 preme Court of the United States, and though this specific objection 
 was made by counsel to its validity, the act was sustained," without, 
 however, any special reference being made to this question in the opin- 
 ion. An examination of unreported portions of the briefs filed in the 
 Supreme Court shows that counsel did there discuss, with ordinary 
 ability, the question of delegation of legislative power to an administra- 
 tive body. And in 62 Miss, at 626 there are references to the ques- 
 tion of delegation of power in a few authorities cited in a brief against 
 the law. Were it not for the latter, we might say that, so far as shown 
 by the reports of any of the cases, the contention that the statute was 
 not in accordance with the distribution of powers by the state constitu- 
 tion might have meant merely that if the state had any control what- 
 ever over the rates of a railroad the charter of which had granted to 
 it in general terms the right to regulate its own rates, that control 
 could be exercised only through a strictly judicial body. In Illinois C. 
 R. Co. v. Stone, (1884) 20 Fed. 468, 471, the court said, "The question 
 of what is reasonable compensation in such cases is one alone for 
 judicial ascertainment, when not fixed by the charter, and no power 
 is reserved therein, thereafter to fix it." 
 
 48 In addition to the cases cited above, see Stone v. Natchez, J. & 
 C. R. Co., (1885) 62 Miss. 646, 21 A. & E. R. Cas. 17, which involves 
 simply the impairment of contract clause. The court there says that the 
 commission merely secured conformity by the road with the implied 
 condition in its charter to carry for reasonable rates. "The final test 
 of reasonablness of rates is not with the railroad commission, but, as 
 before, with the government, through its judiciary. Fixing rates by the 
 commission is not final and conclusive against a railroad company. It is 
 only prima facie correct, and may be tested by the courts. If the action 
 of the commission is just, it should prevail. If it is not, it may be as- 
 sumed that it will not. Of that none should complain. The concession 
 made in the bill of the appellee of the right of judicial control to pre- 
 vent extortion and unjust discrimination is an admission of the right of 
 government control; and if the state can control or supervise at all it 
 may select the agency through which to exert its right." But it does 
 not follow that the legislature may select an agency as freely as the 
 state itself might do it, and that point is not discussed. 
 
 "Chicago, B. & Q. R. Co. v. Iowa, (1876) 94 U. S. 155, 163; Peik v. 
 Chicago & N. W. Ry. Co., (1876) 94 U. S. 164, 177, 178. 
 * (1886) 118 U. S. 557, 566-569, 7 Sup. Ct. 4, 7-9. 
 
 49 (1900) 176 U. S. 173, 20 Sup. Ct. 336; (1898) 90 Fed. 363. 
 
OF POWERS IN THE CONSTITUTIONS 21 
 
 neap oils & St. L. R. Co. v. Minnesota 50 the question of 
 the delegation of legislative power was not discussed either 
 by the court of last resort or by the lower courts. In 
 Georgia R. & B. Co. v. Smith 51 while the court referred to 
 the decision of the state court upon the constitutionality of 
 the~ delegation of power, it properly refrained from com- 
 ment thereon: And in Reagan v. Farmers' L. & T. Co. 52 
 iTTiacTtieen shown in the lower court 53 that the state of 
 Texas had considered it advisable to amend its constitution , 
 in order to authorize the regulation of rates by commission; 
 therefore, while the Supreme Court did say 54 that a state 
 may regulate by means of a commission, that case certainly 
 does not show that in the absence of an express provision 
 in the state constitution a legislature may bestow upon a 
 commission as much power over rates as the legislature 
 itself might exercise. 
 
 The court of last resort has said at times that the naming 
 of specific rates for future transportation is a legislative 
 power, 55 and at times that it is an administrative 
 power, 56 and the court has also appeared undecided upon 
 this point. 57 Yet, as we have already observed 58 that there 
 are some powers which may be exercised by the legislature 
 itself, but the exercise of which is not confined strictly to 
 the legislature and may, therefore, be assigned by it to an 
 
 60 (1902) 186 U. S. 257, 22 Sup. Ct. 900; State v. Minneapolis 6- St. 
 L. R. Co., (1900) 80 Minn. 191, 83 N. W. 60. 
 
 51 (1888) 128 U. S. 174, 178, 9 Sup. Ct. 47, 48. 
 
 52 (1894) 154 U. S. 362, 14 Sup. Ct. 1047- 
 
 68 Mercantile T. Co. v. Texas 6- P. Ry. Co., (1892) 51 Fed. 529, 532. 
 ^"_J54 IT c; at flp^ t ^p^. i A Suj>. Ct. at 1053. 
 
 McChord v. Louisville & N. R. Co., (1902) 183 U. S. 483, 495, 
 22 Sup. Ct. 165, 169; Interstate Com. Comn. v. Alabama M. Ry. Co., 
 (1897) 168 U. S. 144, 162, 18 Sup. Ct. 45, 47; Interstate Com. Comn. v. 
 Cincinnati, N. O. & T. P. Ry. Co., (1897) 167 U. S. 479, 499, 500, 501, 
 505, 506, 511, 17 Sup. Ct. 896, 900, 901, 902, 903, 90S- 
 
 "St. Louis & S. F. Ry. Co. v. Gill, (1895) 156 U. S. 649, 663, 15 Sup. 
 Ct. 484, 490; Reagan v. Farmers' L. & T. Co., (1894) 154 U. S. 362, 
 394, 14 Sup. Ct. 1047, 1053. See also note 46, supra. 
 
 " Reagan v. Farmers' L. & T. Co., (1894) 154 U. S. 362, 397, 14 
 Sup. Ct. 1047, 1054. 
 
 08 p. 4, supra. 
 
22 RATE REGULATION AND THE DISTRIBUTION 
 
 administrative organ, these cases need not confuse us. 
 Taken together they indicate no more than that a commis- 
 sion may not name specific rates without legislative authori- 
 zation, but that a commission may be authorized to ascer- 
 tain facts as to rates and to state in specific form princi- 
 ples established by the legislature. 
 
 The court has sustained several federal statutes which 
 delegated power to administrative or executive officers and 
 which were attacked upon the ground that the power dele- 
 gated was legislative, 59 the court saying that the officers 
 were merely authorized to ascertain facts and to apply the 
 law in accordance with those facts. In some of the cases 
 this explanation of the statute is a rather strained one; 60 
 but the actual decisions in those cases are more than off-set 
 by the reason which the court gave in support of the deci- 
 sions. 61 And while the court has sustained legislation 
 which delegated to executive officers distinctively congres- 
 sional power concerning the Philippine Islands, 62 those de- 
 cisions cannot justify similar legislation for territory which 
 is under the Constitution of the United States. 
 
 The court has also sustained a federal law which allowed 
 local authorities to make certain "supplementary regula- 
 tions" concerning the acquisition of title to public lands. 03 
 
 69 Union B. Co. v. United States, (1907) 204 U. S. 364, 27 Sup. Ct. 
 367; and cases there cited. And see St. Louis, I. M. & S. Ry. Co. v. 
 Taylor, (1908) 210 U. S. 281, 287, 26 Sup. Ct. 616, 617. 
 
 80 Consider criticisms in dissenting opinion in Field v Clark, (1892) 
 143 U. S. 649, 697, 12 Sup. Ct. 495, 506; Gilhooly v. City of Elizabeth, 
 (1901) 66 N. J. L. 484, 486, 49 Atl. 1106, 1107; and criticism of similar 
 legislation in Prentice and Egan, The Commerce Clause of the Federal 
 Constitution, 313. 
 
 61 On the bearing of Field v. Clark, (1892) 143 U. S. 649, 12 Sup. 
 Ct. 495, on railroad rate regulation, see also Olney, Railroad Rate Mak- 
 ing by Congress, 181 N. A. Rev. 490; Peck, Governmental Regulation 
 of Railroad Rates, 13 Am. Lawyer, 485, 486; Whitney, The Reciprocity 
 Acts of 1890, 31 Am. L. Reg. 186, 187. 
 
 62 United States v. Heinszen, (1907) 206 U. S. 370, 27 Sup. Ct. 742; 
 Dorr v. United States, (1904) 195 U. S. 138, 24 Sup. Ct. 808. See also 
 The Louisa Simpson, (1871) 2 Sawyer, 57, 61, 71, 15 Fed. Cas. 953, 
 955, 958. 
 
 "Butte C. W. Co. v. Baker, (1905) 196 U. S. 119, 25 Sup. Ct. 211. 
 See also United States v. Ormsbee, (1896) 74 Fed. 207. 
 
OF POWERS IN THE CONSTITUTIONS 23 
 
 The opinion does not contain a thoroughly satisfactory dis- 
 cussion of the question involved, 64 yet the reason for the 
 decision may be said to be that the court thought that the 
 purpose for which the power had been given to Congress 
 had been sufficiently observed by the regulations which Con- 
 gress had itself prescribed, and as vast interests would 
 suffer from a decision that the federal statute was uncon- 
 stitutional the court would not so decide where the invalid- 
 ity was not clear. 65 As the court did not notice it, we need 
 not lay much stress upon the fact that the local authorities 
 were not merely administrative, and that apparently the 
 "supplementary regulations" were legitimate exercises of 
 local self-government. 66 The decision that the power to 
 
 64 See 196 U. S. 125, 126, 25 Sup. Ct. 213. The question is how far 
 the power of Congress is exclusive. The court does not show whether 
 the owner of the land had actually granted to its agent, Congress, per- 
 mission to delegate a portion of the power committed to it. Grant- 
 ing that Congress thought that it was acting for the best, that fact does 
 not answer the constitutional question. The question is not whether the 
 power is legislative in its nature, but whether it is entrusted to the ex- 
 clusive control of Congress, so that even if the court could say boldly 
 that neither the statute nor the "supplementary regulations" were in 
 any aspect legislative in character the problem would not be entirely 
 solved. 
 
 "A statute must always be upheld unless its invalidity is clear, re- 
 gardless of the amount involved. 
 
 *" In this case the regulations were made by a state ; but a state could 
 not exercise such power over interstate rates : see Stoutenburgh v. Hen- 
 nick, (1889) 129 U. S. 141, 9 Sup. Ct. 256; and also McCornick v. 
 Western U. T. Co., (1897) 79 Fed. 449, 451; compare In re Rahrer, 
 (1891) 140 U. S. 545, ii Sup. Ct. 865. Perhaps the statute was 
 analogous to that considered in In re Rahrer, and merely withdrew a 
 withdrawable federal restraint upon a state's power over property 
 within its borders. Between the exclusive power of the federal 
 government and the exclusive power of the states there are fields of 
 jurisdiction which Congress may place under state control, which are of 
 such a nature that we might say that the state and federal govern- 
 ments held them in common because of vicinage to the exclusive 
 domains of each, were it not for the rule of the supremacy of federal 
 law, a rule found in the Constitution but sometimes misapplied; in ad- 
 dition to In re Rahrer see Patterson, The United States and the States 
 Under the Constitution, 2d ed., p. 269, note; and, by way of analogy, 
 p. 4, supra. Thus, while Congress may not authorize the states to coin 
 money it may authorize them to tax federal agencies which are within 
 their borders : see Patterson, op. cit., p. 48 ; and also U. S. Constitution, 
 Art. I, sec. 10. In connection with this note in general consider also 
 Kansas v. Colorado, (1907) 206 U. S. 46, 92, 27 Sup Ct. 655, 665; Allen 
 
24 RATE REGULATION AND THE DISTRIBUTION 
 
 make those "supplementary regulations" had not been 
 clearly shown to belong exclusively to Congress, while it 
 may have some bearing upon the question how far the 
 power of Congress under the commerce clause is exclusive, 
 does not constitute a decision upon the extent to which the 
 power of Congress is exclusive under any clause of the 
 Constitution other than the one considered in that case. 67 
 
 The Supreme Court of the United States has also refer- 
 red to the distribution of governmental powers in several 
 cases involving state legislation, but its remarks upon the 
 subject in those cases were of comparatively little value. 68 
 
 Turning again to the decisions of state courts, we must 
 note that they have frequently sustained legislation by 
 which administrative officers were empowered to apply the 
 law in accordance with facts to be ascertained by those offi- 
 cers. Thus they have sustained legislation by which a com- 
 mission was authorized to mark boundary lines between 
 
 v. Riley, (1906) 203 U. S. 347, 27 Sup. Ct. 95; Woods 6- Sons v Carl, 
 (1906) 203 U. S. 358, 27 Sup. Ct. 99; 2 Am. Pol. Sci. Rev. 347. 
 
 r "The line has not been exactly drawn which separates those im- 
 portant subjects, which must be entirely regulated by the legislature 
 itself, from those of less interest, in which a general provision may be 
 made, and power given to those who are to act under such general pro- 
 visions to fill up the details:" Wayman v. Southard, (1825) 10 Wheat, 
 i, 43- 
 
 "Michigan C. R. Co. v. Powers, (1906) 201 U. S. 245, 26 Sup. Ct. 
 459, where the distribution was clearly directed by the state constitution ; 
 Dreyer v. Illinois, (1902) 187 U. S. 71, 23 Supt. Ct. 28; St. Louis C. C. 
 Co. v. Illinois, (1902) 185 U. S. 203, 22 Sup. Ct. 616. The two latter 
 cases had been taken up from the state court of last resort. The rule 
 as to the distribution of governmental powers is distinctly separate 
 from other rules of the constitutions, however much laws which violate 
 that rule may also violate other rules. The court said in Atlantic C. L. 
 R. Co. v. North C. Corp. Comn., (1907) 206 U. S. i, 19, 27 Sup. Ct. 585, 
 591, that state regulation of railroads "may be exerted either directly by 
 the legislative authority or by administrative bodies endowed with 
 power to that end." The case came up from the supreme court of the 
 state, and the question of delegation of power was not considered. 
 Every one must admit that a legislature may confer some power upon 
 commissions. But the case does nothing whatever toward clearing up 
 the question of how much power a legislature may bestow upon a com- 
 mission without violating that distribution of powers which is usually 
 made by the constitutions. 
 
OF POWERS IN THE CONSTITUTIONS 2$ 
 
 counties, 69 a commission was authorized to determine the 
 efficiency of a voting-machine the use of which, if efficient, 
 was directed by law, 70 examining boards were authorized 
 to inquire into the qualifications of persons seeking fo ex- 
 ercise designated public occupations and to license those 
 who were properly qualified, 71 state boards were authorized 
 
 "Innity County v. Mendocino County, (1007) isi Cal 270. oo Pac. 
 685- "Although the line was marked incorrectly it constituted "tlfe 
 legal boundary. In Kennedy v. Mayor, (1902) 24 R. I. 461, 53 Atl. 317, 
 the court sustained a law which directed the appointment of a commis- 
 sion to divide a city into wards and voting-districts. The correctness 
 of the decision is not quite so clear as the correctness of the decision 
 in Trinity County v. Mendocino County, but it seems to be sound. See 
 also In re Hunter, (1908) Minn., 116 N. W. 922, 924. Rouse v. Thomp- 
 son, (1907) 228 111. 522, 81 N. E. 1109, was different from the above 
 cases. In it the court declared unconstitutional an act authorizing 
 political committees to establish delegate districts in their respective 
 counties. The decision can be supported, if at all, only upon the ground 
 that so much discretion was allowed to the committees that their de- 
 cisions would be of a legislative nature, and that the committees were 
 of such a character that legislation by them could not be justified as 
 exercises of local self-government. But while the court uses language 
 which taken alone would indicate that it considered the work strictly 
 legislative in character, it deprives that language of any importance by 
 apparently admitting that the work could be entrusted to an administra- 
 tive organ and insisting that the committees could not constitutionally 
 be made governmental organs. In taking the latter ground the court 
 seems to be in error: see 8 Cyc. 831; Scholle v. State, (1900) 90 Md. 
 729, 46 Atl. 326, 50 L. R. A. 411; St. Louis, I. M. & S. Ry. Co. v. 
 Taylor, (1908) 210 U. S. 281, 287, 28 Sup. Ct. 616, 617; dissenting opin- 
 ion in Rouse v. Thompson; discussion of this case in 21 Harv. L. Rev. 
 215, 216. 
 
 T0 Elwell v. Comstock, (1906) 99 Minn. 261, 109 N. W. 113, 698, 7 
 L. R. A. N. S. 621. 
 
 n Ex part e McManus, (1907) i.y Olr 331, on Par 702, stafaj^gg* 
 of architecture see concurring opinion; In re Thompson, (1904) 36 
 WashT~377, 78~PacT~899, state board of dental examiners; State v. 
 Briggs, (1904) 45 Ore. 366, 77 Pac. 750, 78 Pac. 361, state board of 
 barber examiners; Ex parte Whitley, (1904) 144 Cal. 167, 77 Pac. 879, 
 state board of dental examiners; Ex parte Gerino, (1904) 143 Cal. 412, 
 77 Pac. 166, state board of medical examiners; State v. Thompson, 
 (1901) 160 Mo. 333, 60 S. W. 1077, 54 L. R. A. 950, state auditor au- 
 thorized to license persons of good character to make books on horse 
 races at race courses of good repute; State v. Heinemann, (1891) 80 
 Wis. 253, 49 N. W. 818, state board of pharmacy. See also State v. 
 Chittenden, (1906) 127 Wis. 468, 107 N. W. 500; Hildreth v. Craw- 
 ford, (1884) 65 Iowa, 339, 21 N. W. 667; U. S. Rev. Stats., sees. 4439- 
 4442, 5 Fed. Stats. An. 398-400. And there have been a number of 
 cases in which similar statutes were sustained without any consideratf 
 of the question of delegation of legislative power. Contra, Harmon v. 
 State, (1902) 66 Ohio St. 249, 64 N. E. 117, 58 L. R. A. 618, where a 
 
26 RATE REGULATION AND THE DISTRIBUTION 
 
 to issue quarantine and other regulations for the protec- 
 tion of the health of the community, 72 and other similar 
 or supposedly similar delegations of power were made. 73 
 
 statute which authorized examiners to license steam engineers who 
 should be found "trustworthy and competent" was declared invalid on 
 the ground that it delegated legislative power. The only case cited 
 by the court was Mathews v. Murphy, referred to in note 73, infra, and 
 it is not clear that that case turned upon the question of delegation of 
 legislative power. Compare State v. Gardner, (1898) 58 Ohio St. 599, 51 
 N. E. 136, 41 L. R. A. 689. In connection with Harmon v. State con- 
 sider also cases cited in note 73, infra. 
 
 n Pierce v. Doolittle, (1906) 130 Iowa, 333, 106 N. W. 751, 6 L. R. 
 A. N. S. 143; Blue v. Beach, (1900) 155 Ind. 121, 56 N. E. 89, 50 L. R. 
 A. 64. See also Isenhour v. State, (1901) 157 Ind. 517, 60 N. E. 40; 
 Hurst v. Warner, (1894) 102 Mich 238, 60 N. W. 440, 26 L. R. A. 
 484; Koppala v. State, (1907) Wyo., 89 Pac. 576, 579; Cooper v. Schultz, 
 (1866) 32 How. Pr. (N. Y.) 107 (in the last of which the courts sus- 
 tained a broad grant of power to commissioners appointed by the 
 governor and senate: see pp. 112, 124); Walker v. Towle, (1901) 156 
 Ind. 639, 59 N. E. 20, 53 L. R. A. 749; and the following cases in 
 which live stock quarantine regulations were sustained : State v. 
 Southern Ry. Co., (1906) 141 N. C. 846, 54 S. E. 294; Commonwealth v. 
 Cooper, (1902) 27 Pa. Co. Ct. 199; State v. Rasmussen, (1900) 7 
 Idaho, i, n, 59 Pac. 933, 936. In Ex parte Cox, (1883) 63 Cal. 21, where 
 a statute was declared unconstitutional, too broad a power had been 
 granted to the viticultural commissioners. In State v. Burdge, (1897) 
 95 Wis. 390, 70 N. W. 347, 37 L. R. A. ^157, the court may have de- 
 cided correctly in sustaining the same objection to a statute (as inter- 
 preted by the state board of health) which dealt with dangerous con- 
 tagious diseases. But in Schaezlein v. Cabaniss, (1902) 135 Cal. 466, 67 
 Pac. 755, 56 L. R. A. 733, the court seems to have been in error in 
 declaring unconstitutional a statute which provided that if in any 
 factory there were produced dangerous substances that were liable to 
 be inhaled by the employees, and it appeared to the commissioner of 
 labor statistics that by the use of some mechanical contrivance such 
 inhalation could be to a great extent prevented, he should require the 
 use of such contrivance. With that case compare, in addition to the 
 cases cited above, Arms v. Ayer, (1901) 192 111. 601, 61 N. E. 851, which 
 concerned a law conferring upon factory inspectors power as to the 
 erection of fire escapes; State v. Vickens, (1905) 186 Mo. 103, 84 S. W. 
 908, which concerned a law conferring upon factory inspectors powers 
 the extent of which is not clearly shown in the opinion ; and Spiegler v. 
 City of Chicago, (1905) 216 111. 114, 128, 74 N. E. 718, 722, which 
 concerned an ordinance which declared that devices, to be approved by 
 the commissioner of public works, should be placed upon oil-wagons to 
 prevent the spilling of oil. 
 
 TS See page 16 and notes 69, 72, supra; and language of 
 court in Central of Ga. Ry. Co. v. Railroad Comn., (1908) 
 161 Fed. 925, at 986. In Hand v. Stapleton, (1903) 135 Ala. 156, 33 So. 
 689, commissioners were directed to construct county buildings at a new 
 location if they should find that the work could be paid for without 
 an increase in the tax rate. In People v. Harper, (1878) 91 111. 357, 
 commissioners were authorized to name inspection fees: the legislature 
 
OF POWERS IN THE CONSTITUTIONS 27 
 
 While the courts have not always sustained statutes upon 
 those subjects, partly because some of the statutes which 
 were declared unconstitutional differed in character from 
 those which were sustained, and partly because some courts 
 
 stated the principle to be followed, though the court does not dwell on 
 this fact but sustains the statute with unsound reasoning. In Lothrop 
 v. Stedman, (1875) 42 Conn. (Supp.) 583, Fed. Cas. No. 8519, a com- 
 missioner was directed to determine and announce whether a company 
 made up a deficiency in its assets, thus avoiding a conditional repeal of 
 its charter. Local option and similar laws have been frequently sus- 
 tained upon the ground that the power delegated was merely that of 
 determining questions of fact. It seems that that ground does not 
 furnish a correct basis for those decisions : see note 7, supra. It may, 
 possibly, answer objections to statutes considered in State v. Bryan, 
 (1905) 50 Fla. 293, 39 So. 929, 953; Leeper v. State, (1899) 103 Tenn. 
 500, 524, 53 S. W. 962, 967, 48 L. R. A. 167, 172; and to some portions 
 of the statute considered in In re Gilbert E. Ry. Co., (1877) 70 N. Y. 
 
 361, 366, 374; In re New York E. R. Co., (1877) 70 N. Y. 327, though it 
 seems that other portions of the New York statute can be supported 
 better, if not only, upon the ground that the power was granted to 
 local authorities : see page 4, supra. A statute which authorized 
 county commissioners to determine the width of tires which must 
 be used for the transportation of heavy loads upon the public 
 roads of their respective counties, was sustained in State v. Messenger, 
 (1900) 63 Ohio St. 398, 59 N. E. 105, not only upon the ground that 
 a power of local government was thereby granted to local authorities, 
 but also upon the ground that those authorities were directed to de- 
 termine questions of fact. In People v. Delaware & H. C. Co., (1898) 
 32 N. Y. App. Div. 120, 52 N. Y. Supp. 850, affirmed (1901) 165 N. Y. 
 
 362, 59 N. E. 138, the court decided that legislative power was not 
 delegated by a statute which empowered commissioners, acting judi- 
 cially, it was said, to determine the necessity of railroad accommoda- 
 tions. And statutes authorizing commissions to issue orders con- 
 cerning the construction and operation of railroads have been en- 
 forced without any consideration of the question of delegation of legis- 
 lative power in a number of cases. On the other hand, in Noel v. People, 
 
 (1900) 187 111. 587, 58 N. E. 616, the court decided that legislative 
 power was delegated by a statute which granted to a board of phar- 
 macy an unconditional power to say, as to some parts of the state, what 
 individuals who were not registered pharmacists should be permitted to 
 sell patent and proprietary medicines and domestic remedies, and under 
 what restrictions those drugs should be sold, although the court ad- 
 mitted the validity of that part of the statute which provided that no one 
 might sell medicines which he had prepared or compounded himself 
 unless he were a registered pharmacist. And in Mathews v. Murphy, 
 
 (1901) 23 Ky. L. Rep. 750, 63 S. W. 785, 54 L. R. A. 415, the court 
 decided that the state board of health might not revoke a license to 
 practice medicine because of "grossly unprofessional conduct of a char- 
 acter calculated to deceive or defraud the public," although admitting 
 the validity of that part of the statute which authorized the bpard to 
 pass upon the qualifications of persons seeking licenses to practice 
 medicine; yet it is doubtful whether that case turned upon the ques- 
 tion of delegation of legislative power. 
 
28 RATE REGULATION AND THE DISTRIBUTION 
 
 have taken a stricter view of the limitations upon delega- 
 tions of power by the legislature than have been taken by 
 other courts, it seems clear that constitutional statutes upon 
 those subjects may be framed. Such questions, for in- 
 stance, as the appropriate preventive of the spread of small 
 pox, and whether a man possesses the normal qualifications 
 of an architect, are undeniably questions of fact. 
 
 But there is a clear difference between determining the 
 precise application of a law established by the legislature 
 and stating in specific form a regulation which is not the 
 application of a law established by the legislature. Or, to 
 refer more definitely to railroad commissions, while a leg- 
 islature certainly may authorize such a commission to in- 
 vestigate questions concerning rates and to state in specific 
 form the rates which may be charged thereafter, if it has 
 clearly established the principles which are to be applied by 
 the commission, the cases which we have just considered 
 do not warrant the assertion that the legislature may en- 
 dow the commission with a wide discretion as to the rates 
 which shall be fixed. We have seen from other authorities 
 that while the legislature may authorize a commission to 
 ascertain facts and to apply the law in accordance with 
 those facts, it must point out the facts which are to be as- 
 certained, it must determine the law which is to be ap- 
 plied. 74 
 
 The courts have also held that a statute the operation of 
 which depends upon a contingency does not necessarily 
 delegate legislative power. It may declare completely the 
 principles of governmental action, although other forces de- 
 termine the result of that declaration of principles. Thus 
 the treatment of a foreign corporation may be made to de- 
 pend upon the treatment which the home state of that cor- 
 poration extends to corporations of the state whose legisla- 
 tion is being considered; 75 commissioners may be author- 
 
 14 See cases cited in note 26, supra. 
 
 "People v. Fire Assn. of Phila., (1883) 92 N. Y. 311; Phoenix I 
 
OF POWERS IN THE CONSTITUTIONS 2Q 
 
 ized to construct new county buildings if they shall find 
 that the work will not require an increase in the tax rate, 76 
 to remove de facto a county seat upon the erection of suit- 
 able buildings at a new location, 77 or to remove the county, 
 records to another town and erect a court house there if 
 the town or its citizens shall, to the satisfaction of the com- 
 missioners and without expense to the county, provide suit- 
 able temporary accommodations and a suitable building 
 site; 78 a legislature may require a railroad company to stop 
 its trains at a designated place if individuals shall, within a 
 given time, there erect a station building and convey it, 
 with the land thereunder, to the company; 79 a legislature 
 
 Co. v. Welch, (1883) 29 Kan. 672; Home L Co. v. Swigert, (1882) 104 
 111. 653; and see Talbott v. Fidelity & C. Co., (1891) 74 Md. 536, 545, 22 
 Atl. 395, 398. Contra, Clark 6- Murrel v. Port of Mobile, (1880) 67 
 Ala. 217. It is submitted that, while the decisions in support of the 
 statutes are sound, some of the cases which the Kansas and Illinois 
 courts cite with approval were not legitimate instances of contingent 
 legislation. In Brig Aurora v. United States, (1813) 7 Cranch, 382, the 
 court sustained an act by which an embargo resulted upon action by 
 Great Britian. And in Field v. Clark, (1892) 143 U. S. 649, 12 Sup. 
 Ct. 495, the court sustained a federal reciprocity statute in which the 
 contingency was not indicated as definitely as in the above statutes. 
 
 78 Hand v. Staple ton, (1903) 135 Ala. 156, 33 So. 689. 
 
 "Peck v. Weddell, (1867) 17 Ohio St. 271. 
 
 " Walton v. Greenwood, (1872) 60 Me. 356. 
 
 n State v. New Haven & N. Co., (1876) 43 Conn. 351. The court 
 gave but slight consideration to the question. In Mayor v. Clunet, 
 (1865) 23 Md. 449, 466-470, after a fuller discussion, the court sus- 
 tained an ordinance for the opening of a street which provided that it 
 should not go into effect until designated individuals had adjusted 
 claims against the city arising out of a prior ordinance for the same 
 purpose which had been repealed after it had been partly executed. On 
 the other hand, in Owensboro & N. R. Co. v. Todd, (1891) 91 Ky. 175, 
 15 S. W. 56, ii L. R. A. 285, the court, without giving satisfactory 
 reasons, declared that legislative power was delegated by an act which 
 provided that, where land for the right of way had been given to a 
 railroad company, the owners of adjoining lands might thereafter re- 
 quire the company to fence the right of way at its own expense ; and 
 in Loughbridge v. Harris, (1871) 42 Ga. 500, is an unmistakably in- 
 correct declaration that a mill dam act delegated legislative power. See 
 also note 39, supra. As a legislature does not necessarily allow an in- 
 dividual to shape the policy of the government whenever it makes the 
 operation of a statute contingent upon his action or decision, it seems 
 that it may at times make the operation of a statute to depend upon his 
 decision whether or not he will contribute from his own possessions or 
 whether he will waive or claim rights against other individuals or 
 against the state, even though it may not grant to any one a right to in- 
 
3O RATE REGULATION AND THE DISTRIBUTION 
 
 may repeal the charter of a company with the proviso that 
 the repeal shall not go into effect if the company shall by a 
 named date make up a deficiency in its assets ; 80 and, though 
 it is questionable whether this is really contingent legisla- 
 tion, the legislature may doubtless empower individuals to 
 do certain acts without compelling them to do so, as in the 
 statutes authorizing the formation of corporations. 
 
 Yet obviously it does not follow that because contingent 
 legislation may be constitutional therefore a statute must be 
 valid if its operation is uncertain. In the cases which we 
 have already considered the policy of the state was deter- 
 mined only by the legislature ; but it would be far otherwise 
 if the contingency consisted of the will of another organ of 
 government. It is true that in a number of cases the courts 
 have sustained statutes which in reality delegated legislative 
 power to the voters or the authorities of localities, upon the 
 ground that in each case the operation of the statute was 
 contingent. 81 And yet, without criticising the actual deci- 
 
 terfere with the property or conduct of others save for the obtaining of 
 rights which are granted to, or already belonged to, himself. The 
 court in In re New York E. R. Co., (1877) 70 N. Y. 327, 343, 344, gave 
 an unsound reason for saying that the commission must be allowed 
 to determine for the incorporators a number of questions concerning 
 the organization of the company. 
 
 " Lothrop v. Stedman, (1875) 42 Conn. (Supp.) 583, Fed. Cas. No. 
 8519. 
 
 81 See, e. g., People v. McBride, (1908) 111., 84 N. E. 865, 872; Picton 
 v. Cass County, (1904) 13 N. D. 242, 100 N. W. 711; Ansley v. Ains- 
 worth, (1902) 4 Ind. Ter. 308, 69 S. W. 884; State v. Cooley, (1896) 
 
 65 Minn. 406, 68 N. W. 66; Lum v. Mayor, (1895) 72 Miss. 950, 18 So. 
 
 i ^ -xx ' . . 
 
 Miss. 59, 8 So. 201 \ Clarke v. Rogers, (1883) 81 Ky. 43; People v. City 
 
 476; State v. Pond, (1887) 93 Mo. 606, 6 S. W. 469; People v. Hoffman, 
 (1886) 116 111. 587, 5 N. E. 596; Schulherr v. Bordeaux, (1886) 64 
 
 of Butte, (1881) 4 Mont. 174, I Pac. 414; Guild v. City of Chicago, 
 (1876) 82 111. 472; Fell v. State, (1875) 42 Md. 71; Locke's Appeal, 
 (1873) 72 Pa. 491; Alcorn v. Hamer, (1860) 38 Miss. 652 (in which 
 case the briefs were elaborate) ; Bull v. Read, (1855) 13 Gratt. (Va.) 
 78; Cincinnati, W. & Z. R. Co. v. Comrs., (1852) i Ohio St. 77; and 
 also State v. Fountain, (1908) Del., 69 Atl. 926, 934; Thalheimer v. 
 Board of Suprs., (1908) Ariz., 94 Pac. 1129; Ward v. State, (1908) 
 Ala., 45 So. 655; State v. Kline, (1907) Ore., 93 Pac. 237; Fonts v. Hood 
 River, (1905) 46 Ore. 492, 81 Pac. 370, I L. R. A. N. S. 483; In re Neu 
 York E. R. Co., (1877) 70 N. Y. 327; State v. O'Neill, (1869) 24 Wis. 
 149; State v. Hunter, (1888) 38 Kan. 578, 17 Pac. 177 (in which case the 
 appointment of commissioners and the exercise of powers by them 
 
OF POWERS IN THE CONSTITUTIONS 3! 
 
 sions, we must note that not only does the reason given in 
 support of them appear to be insufficient when considered 
 by itself, 82 but its unsoundness is further shown by the fact 
 that if the statutes were sustainable only upon that reason 
 the decisions would be flatly inconsistent with the decisions 
 that the legislature may not submit to the voters of the 
 entire state the question whether or not a law shall become 
 operative. 83 On the other hand, no question of the con- 
 sistency of the two lines of decisions could arise if the for- 
 mer had been based upon the ground that the legislature 
 may grant some self-government to the localities. 84 
 
 Nor may any right of the legislature to submit the ques- 
 tions whether or when a statute shall be executed 85 be based 
 
 were acts administrative in their nature for the improvement, where 
 necessary, of the execution of a law the excution of which had been 
 already ordered); Cooley, Constitutional Limitations, 7th ed., 167; 
 Sutherland, Statutory Construction, 2d ed., p. 170; Oberholtzer, The 
 Referendum in America, 328. In some of the earlier decisions, while 
 the courts hold that the statutes are constitutional, they apparently 
 consider that a statute may be so worded that after a vote is taken the 
 constitutionality of a condition subsequent will be unimportant : that in 
 case of a vote to enforce the law the condition may be ignored : see 
 State v. Parker, (1857) 26 Vt. 357, 363; Alcorn v. Hamer, (1860) 38 
 Miss. 652; although in case of a contrary vote, whether the condition 
 were constitutional or not, the statute could not be enforced. 
 
 82 The distinction between valid and invalid contingent legislation is 
 further brought out in People v. Fire Assn. of Phila., (1883) 92 N. Y. 
 311, 322, 323; Barto v. Himrod, (1853) 8 N. Y. 483, 490, 495; Ex 
 parte Wall, (1874) 48 Cal. 279, 315; Central of Ga. Ry. Co. v. Railroad 
 Comn., (1908) 161 Fed. 925, 986. 
 
 88 See note 87, infra. 
 
 84 See page 4, supra. 
 
 85 On the point that it was not the statute but the operation of the 
 statute which was contingent, see Cincinnati, W. & Z. R. Co. v. Comrs., 
 (1852) i Ohio St. 77; Locke's Appeal, (1873) 72 Pa. 491; Picton v. 
 Cass County, (1904) 13 N. D. 242, 100 N. W. 711; Clarke v. Rogers, 
 (1883) 81 Ky. 43; People v. City of Butte, (1881) 4 Mont. 174, i Pac. 
 414; People v. Reynolds, (1848) 5 Gil. (111.) i; State v. Kline, (1907) 
 Ore., 93 Pac. 237. In the Ohio case the court said, p. 88, "The law is, 
 therefore, perfect, final, and decisive in all its parts, and the discretion 
 given only relates to its execution. It may be employed or not em- 
 ployed ; if employed, it rules throughout ; if not employed, it still re- 
 mains the law, ready to be applied whenever the preliminary condition is 
 performed. The true distinction, therefore, is between the delegation 
 of power to make the law, which necessarily involves a discretion as 
 to what it shall be, and conferring an authority or discretion as to its 
 execution, to be exercised under and in pursuance of the law. The first 
 
32 RATE REGULATION AND THE DISTRIBUTION 
 
 upon its undoubted right to allow administrative bodies to 
 decide some questions concerning the execution of statutes 
 which do not involve the desirability of governmental ac- 
 tion. 86 
 
 As just stated, the weight of authority is decidedly against 
 the constitutionality of a submission to the voters of the 
 entire state of the question whether or not a law shall be- 
 come operative; 87 and yet a concession of the validity of 
 such legislation would not involve a concession of the valid- 
 ity of legislation which should grant a similar veto power 
 to an administrative organ. And even if the legislature 
 after framing an otherwise complete statute might allow 
 an administrative organ to decide whether or not that stat- 
 ute should be enforced, it would not necessarily follow that 
 the legislature might allow such an organ to decide upon 
 the terms of a statute, although unless that power were 
 grantable the legislature might not bestow upon an admin- 
 istrative organ any power over railroad rates further than 
 to apply regulations made by the legislature. 
 
 In view of the cases as to the contingent treatment of 
 foreign corporations, it seems that a state might make the 
 local railroad rates to depend upon the rates which the fed- 
 eral government might establish for interstate transporta- 
 tion, and, conversely, the federal government might make 
 the interstate rates to depend upon the rates which the 
 states might establish for local transportation. 88 This 
 
 can not be done; to the latter no valid objection can be made." Ob- 
 serve the phraseology. But while the legislature unquestionably may 
 grant the power to use some discretion when executing a statute, yet, 
 except where legislative power may be delegated, valid objection cer- 
 tainly can be made to a grant of discretion as to whether or not a 
 statute shall be executed. 
 
 " See note 22, supra. 
 
 "See Oberholtzer, The Referendum in America, 208-217; Cooley, 
 Constitutional Limitations, 7th ed., 168 et seq.; 6 A. & E. Enc. of L., 
 2d ed., 1022. 
 
 "This does not mean that a state legislature might in all cases 
 make local rates depend upon interstate rates established by the car- 
 riers, or, conversely, that Congress might in all cases make inter- 
 state rates depend upon local rates established by the carriers. The 
 commerce clause would at times affect such legislation. Louisville & 
 
OF POWERS IN THE CONSTITUTIONS 33 
 
 would certainly be true if we could be sure that after such 
 a law was passed the basic rates would in every instance 
 be established simply with a view to their effect upon the 
 transportation subject to the sovereignty establishing them 
 and without regard to their effect upon rates not subject 
 to that sovereignty. And it is questionable whether, when 
 
 N. R. Co. v. Eubank, (1902) 184 U. S. 27, 22 Sup. Ct. 277, which arose 
 under that clause, decides that a state may not forbid a railroad to 
 charge more for carrying between two points within the state than it 
 charges for a longer interstate haul which includes the shorter route, 
 when the prohibition would have a direct effect upon interstate com- 
 merce. The company was commanded to change the rate for either the 
 local or the interstate haul. In the case considered the earnings from 
 the local haul were more important. Therefore, rather than lower its 
 local rate, the company would have raised its interstate rate, although 
 on its so doing its competitors would have secured its interstate traffic. 
 It seems, however, that if the local earnings had been less important 
 than the interstate earnings the court should have held that the regula- 
 tion did not violate the commerce clause, for in that case the company 
 would have retained its interstate, and lowered its local, rate, which 
 was probably the main result sought by the state. It seems also that if 
 a minimum interstate rate had been fixed by the federal government, 
 and, therefore, that rate could not have been reduced by the carrier, 
 the long and short haul provision should have been sustained, for it 
 would have affected only the changeable rate that for the shorter, 
 and not for the interstate, haul. The court lends support to this posi- 
 tion by referring to a hypothetical case in which local rates are fixed 
 by state statute and then saying, "Congress does not interfere with 
 local rates by adopting their sum as the interstate rate." These words, 
 of course, must be read in their proper connection, for if they referred 
 to local rates which are fixed by the carrier the dictum would be in- 
 consistent with the decision in the case under consideration. If Con- 
 gress were allowed to adopt as the interstate rate the sum of the 
 local rates established by the carrier it might in some cases directly af- 
 fect local rates, according to the present decision, and Congress may 
 not interfere with local commerce to any greater extent than the states 
 may interfere with interstate commerce : the Tenth Amendment is fully 
 as much a part of the federal Constitution as is the eighth section of 
 Article I. It seems, therefore, that if Congress should declare that 
 through rates should be the sum of the local rates as fixed by the car- 
 riers the question whether the act could constitutionally be applied 
 should depend in each case on whether the local earnings or the inter- 
 state earnings were of more importance to the carrier. It is true that 
 the view of the case taken in this note does not thoroughly coincide 
 with that taken in portions of the opinion. Thus the court says, "The 
 vice of the provision lies in the regulation of the rates between points 
 wholly within the state, by the rates which obtain between points out- 
 side of and those which are within the state." But both earlier and 
 later in the opinion the decision is based on the effect of the regulation, 
 and the facts of the case do not warrant reference to it for the es- 
 tablishment of any other test of constitutionality. 
 
34 RATE REGULATION AND THE DISTRIBUTION 
 
 considering an alleged delegation of power, a court might 
 inquire into the motive underlying the establishment of the 
 basic rates. 
 
 It may be conceded that the federal statute which pro- 
 vides that, in cases where they apply, the laws of the sev- 
 eral states shall be regarded by the federal courts as rules 
 of decision in trials at common law 89 is hardly in point, 
 for so far as substantive law is concerned Congress could 
 not constitutionally have provided otherwise. 90 And hardly 
 analogous is the federal statute which provides that, in 
 common law causes, the circuit and district courts shall 
 enforce such remedies upon judgments as were, at the time 
 the statute was enacted, provided by the laws of the states 
 within which those courts are held and such remedies upon 
 judgments as were or may be subsequently provided by 
 state laws and adopted by general rules of those courts. 91 
 Nor is that statute analogous which provides that, in civil 
 causes other than equity and admiralty causes, those courts 
 shall follow as nearly as may be the procedure in the courts 
 of record of the states within which such circuit and dis- 
 trict courts are held, any rule of court to the contrary not- 
 withstanding. 92 The latter statute, which, if it were inter- 
 
 89 Rev. Stats., sec. 721; 4 Fed. Stats. An. 517; Rose, Code of Federal 
 Procedure, sec. 12. 
 
 90 See Patterson, The United States and the States Under the Con- 
 stitution, 2d ed., sec. 109; Rose, Code of Federal Procedure, sees. 10, 
 notes a, r, 799, note c. And those laws must also be so regarded in 
 trials in chancery. 
 
 91 Rev. Stats., sec. 916; 4 Fed. Stats. An. 580; Rose, Code of Federal 
 Procedure, sec. 925; Fink v. O'Neil, (1882) 106 U. S. 272, i Sup. Ct. 
 325; Ex parte Boyd, (1882) 105 U. S. 647, 651; Ross v. Duval, (1839) 
 13 Pet. 45; Wayman v. Southard, (1825) 10 Wheat, i; Bank of the 
 U. S. v. Halstead, (1825) 10 Wheat. 51. In spite of the decisions and 
 the language of Marshall, C. J., in Wayman v. Southard, 10 Wheat, at 
 49, 50, it does not seem clear that, in a case in which the jurisdiction is 
 based upon the diverse citizenship of the parties, a federal court may 
 constitutionally ignore a then-existing state law, for example, as to 
 stays of execution or exemptions from execution, if the state is not 
 seeking to thwart the federal remedy by allowing a special stay or 
 exemption to such defendant or defendants. See also Rev. Stats., sec. 
 915; 4 Fed. Stats. An. 577; Rose, Code of Federal Procedure, sec. 905. 
 
 92 Rev. Stats., sec. 914; 4 Fed. Stats. An. 563; Rose, Code of Federal 
 Procedure, sec. 900. Consider also 2 Am. Pol. Sci. Rev. 364. 
 
OF POWERS IN THE CONSTITUTIONS 35 
 
 preted in accordance with its probable meaning, would al- 
 low the state authorities incidentally to change the proced- 
 ure in federal courts, 93 might possibly be sustained upon the 
 ground upon which were sustained the less sweeping earlier 
 statutes which merely adopted the procedure then followed 
 by state courts and authorized the federal courts to alter 
 and add to such rules: 94 the Supreme Court said that the 
 providing of such rules was not an act exclusively legisla- 
 tive in character and might be entrusted to the courts con- 
 cerned. 95 The statute under consideration, however, has 
 been so interpreted by the Supreme Court as to make it 
 unnecessary for federal courts to follow the procedure in 
 the courts of record of the states within which the federal 
 courts are held. 96 
 
 But while the determination of the principles upon which 
 rates shall be regulated is exclusively legislative in its char- 
 acter, and might not be entrusted by the state legislatures 
 to Congress or by Congress to the state legislatures, it seems 
 that a legislative body would not be delegating its power if 
 it provided that rates which were subject to it should be 
 affected as the merely incidental result of regulation by the 
 legislature of another sovereignty of rates which were sub- 
 ject to regulation by that other body. 
 
 ** Not, however, of course, where the federal courts would thereby 
 be required to act contrary to the federal Constitution or a federal 
 statute: see Rose, Code of Federal Procedure, sec. 900, note f. 
 
 M Rose, Code of Federal Procedure, sec. 900, notes a, aa. 
 
 * 5 Of course, it does not necessarily follow that, because the legisla- 
 ture may entrust a power to the organ concerned, the legislature may 
 entrust that power to a third authority. Still, so far at least as regards 
 cases in which federal courts acquire jurisdiction by reason of the 
 diverse citizenship of the parties, the statutes under consideration 
 obviously carry out the purpose for which jurisdiction was granted to 
 the federal courts far better than would any statutes which established 
 uniform rules of procedure and uniform remedies upon judgments 
 throughout the entire country. 
 
 "See Boston & M. R. v. Gokey, (1908) 210 U. S. 155, 28 Sup. Ct. 
 657 ; case there cited ; Rose, Code of Federal Procedure, sec. 805, begin- 
 ning of note b, sec. 900, note g. Rev. Stats., sec. 914, was taken from a 
 statute enacted much later than that from which Rev. Stats., sec. 918, 
 was taken, and the courts, in interpreting the Revised Statutes, ought 
 to give weight to that fact. See note at 4 Fed. Stats. An. 585, on the 
 operation of sec. 914. 
 
36 RATE REGULATION AND THE DISTRIBUTION 
 
 The courts have also at times sustained legislation which 
 granted discretion to administrative organs. Where the 
 discretion granted was not great 97 the decisions are prob- 
 ably correct, for the legislature cannot be expected to de- 
 termine every unimportant question which may arise. But 
 other decisions which sustain larger grants of discretion 98 
 
 "See, e. g., State v. Wagener, (1899) 77 Minn. 483, 80 N. W. 633, 
 46 L. R. A. 442; In re Kollock, (1897) 165 U. S. 526, 17 Sup. Ct. 444; 
 language used in Wayman v. Southard, (1825) jo Wheat, i, 43, quoted 
 in note 67, supra; 10 Wheat 45, 46; Jermyn v. Fowler, (1898) 186 Pa. 
 595, 40 Atl. 972, where one of the two inconsistent positions taken by 
 the court was that the board might be granted a discretion as to 
 matters of detail; and also St. Louis, I. M. & S. Ry. Co. v. Neal, 
 (1906) Ark., 98 S. W. 958, 961; State v. Bryan, (1905) 50 Fla. 293, 39 
 So. 929, 953; Woodruff v. New Y. & N. E. R. Co., (1890) 59 Conn. 63, 
 84, 20 Atl. 17, 19; St. Louis, I. M. 6- S. Ry. Co. v. Taylor, (1908) 210 
 U. S. 281, 287, 26 Sup. Ct. 616, 617; In re Opinion of Justices, (1907) 
 N. H., 68 Atl. 873. Compare Fife v. State, (1905) 114 Tenn. 646, 658, 
 659, 88 S. W. 941, 944, i L. R. A. N. S. 520, 525; Central of Ga. Ry. 
 Co. v. Railroad Comn., (1908) 161 Fed. 925, 985; other cases cited in 
 note 26, supra; and State v. Burdge, (1897) 95 Wis. 390, 70 N. W. 347, 
 37 L. R. A. 157- 
 
 M Brady v. Mattern, (1904) 125 Iowa, 158, 100 N. W. 358. (The 
 court overlooks the insurance commissioner cases, cited in note 26, 
 supra, and it cites Ryan v. Outagamie County, (1891) 80 Wis. 336, 50 
 N. W. 340, although the reason given for the Wisconsin decision is 
 flatly in conflict with that on which the Iowa decision is based. The 
 opinion in the Iowa railroad commission case, which is one of the 
 two commission cases cited, does not mention the question of delega- 
 tion of legislative power.) State v. Preferred T. M. Co., (1904) 184 
 Mo. 160, 82 S. W. 1075. (The court says that in an earlier Missouri 
 case an act requiring a uniform policy of insurance, to be approved 
 by the Superintendent of Insurance, was held to be constitutional, 
 although in that case the court did not hold that the act was constitu- 
 tional; it cites an insurance company case which has nothing to do with 
 the question; and it cites a case upholding the validity of an ordinance 
 which provided for the licensing of engineers.) The decisions in 
 Kingman et al., Petitioners, (1891) 153 Mass. 566, 27 N. E. 778, 12 
 L. R. A. 417 (compare State v. Hudson Co. Ave. Comrs., (1874) 37 
 N. J. L. 12, 19; the Massachusetts case was followed in later cases in 
 the same state, cited in L. R. A. Cases as Authorities) ; Martin v. 
 Witherspoon, (1882) 135 Mass. 175 (no authorities cited; compare 
 Board of Harbor Comrs. v. Excelsior R. Co., (1891) 88 Cal. 491, 26 
 Pac. 375) ; Ingram v. State, (1864) 39 Ala. 247 (no authorities cited) ; 
 In re Senate Bill, (1889) 12 Colo. 188, 21 Pac. 481 (where, however, 
 it does not appear that the general question of delegation of legislative 
 power was considered), are also unsound. The constitutionality of 
 the acts considered in Arnett v. State, (1907) 168 Ind. 180, 80 N. E. 
 153, 8 L. R. A. N. S. 1192; State v. Missouri P. Ry. Co., (1907) Kan., 
 92 Pac. 606; State v. Barringer, (1892) no N. C. 525, 14 S. E. 781; 
 
OF POWERS IN THE CONSTITUTIONS 37 
 
 can be supported only on the assumption that the legislature 
 may delegate legislative power upon important subjects 
 which it may specify; and in still other cases (among them 
 the oft-cited Ohio case in which the court sustained a stat- 
 ute allowing the people of the respective counties to decide 
 whether or not county bonds should be issued in aid of 
 railroad construction) 99 while the decisions are doubtless 
 sound the reasoning upon which those decisions are based 
 can be supported only upon the same assumption. 
 
 If, where an administrative organ received large grants 
 of discretion, it adopted principles sufficient to afford it com- 
 
 People v. Dunn, (1889) 80 Cal. 211, 22 Pac. 140, is not clear. Compare 
 Central of Ga. Ry. Co. v. Railroad Comn., (1908) 161 Fed. 925, 985, 
 where the court declared unconstitutional a state law in which an 
 attempt was made to confer upon a commission a large amount of 
 discretion as to rates. 
 
 99 See note 85, supra. The decision in Picton v. Cass County, (1904) 
 13 N. D. 242, TOO N. W. 711, is sound, but the reason given for it is 
 not, unless the fact that the resources of the state were involved con- 
 stitutes an exceptional circumstance. The same reason had been 
 improperly given in a number of cases cited in that opinion. In State 
 v. Hagood, (1888) 30 S. C. 519, 9 S. E. 686, 3 L. R. A. 841, where a 
 statute provided that licenses to mine within the public domain might 
 be granted or refused by the Board of Agriculture according to its 
 judgment as to the best interests of the state, the court refused the 
 petition of a mining company for a mandamus compelling the board to 
 grant a license; and in United States v. Williams, (1887) 6 Mont. 379, 
 12 Pac. 851, where an act of Congress provided that timber growing 
 on the public lands might be cut subject to such regulations as the 
 Secretary of the Interior might prescribe for the protection of the 
 undergrowth "and for other purposes," the court sustained an action 
 for the value of timber cut in violation of law. In each case the court 
 said that legislative power was not delegated to administrative officers. 
 It seems that that reason was unsound, and that the courts should, 
 instead, have said merely that the absence of valid statutes did not 
 warrant the appropriation of public property by individuals. In several 
 cases, e. g., People v. Grand T. W. Ry. Co., (1908) 232 111. 292, 298, 83 
 N. E. 839, 842; Chicago, B. & Q. R. Co. v. Jones, (1894) 149 111. 361, 
 378, 37 N. E. 247, 251, 24 L. R. A. 141, 145; and see cases there cited 
 and Wayman v. Southard, (1825) 10 Wheat, i, 43; the courts have said 
 that a legislature "may authorize others to do those things which it 
 might properly, yet cannot understandingly or advantageously, do 
 itself." Undoubtedly a legislature may delegate to others some powers 
 which it might rightfully exercise itself. But the statement, which is 
 worthless as a test of constitutionality, cannot properly mean that 
 where a legislature cannot advantageously enact specific regulations it 
 may empower others to make such regulations without the guidance of 
 legislatively-established principles. 
 
38 RATE REGULATION AND THE DISTRIBUTION 
 
 plete guidance and announced those principles as publicly 
 and as formally as laws are announced, it would be clear to 
 most persons that that organ was exercising power which 
 is strictly legislative. And where the reasons for adminis- 
 trative decisions are not announced in advance or where 
 that organ does not decide in advance upon any guiding 
 principles whatever its determinations are fully as legisla- 
 tive in their nature. 100 The fact that no act legislative in 
 character preceded its determinations in specific cases can- 
 not make those determinations valid. The legislature alone 
 has power to change the requirements of the government 
 as to the conduct of individuals; and while the legislature, 
 though it may state its requirements in specific form, need 
 not do so, but may entrust that power to an administrative 
 organ if the legislature itself ordains the principles from 
 which those specific rules may be deduced, an administra- 
 tive organ would exercise legislative power if it enforced 
 rules which were not based upon principles established by 
 the legislature or if it interfered with the conduct of in- 
 dividuals without the previous establishment of any rule 
 whatever. 
 
 Of course, if there were only one degree and character 
 of rate regulation which a legislature might constitutionally 
 ordain, it would be sufficient for the legislature simply to 
 create a commission and empower it to name specific rates. 
 Further directions would be unnecessary. But it is obvi- 
 ous that there are constitutionally possible regulations of 
 
 100 Of course where no uniform rules are adopted the danger of 
 injustice is far greater than where they are adopted. The adminis- 
 trative organ may act not merely at haphazard, but with partiality, and 
 the opportunity to work great injustice through partiality gives to 
 persons who may be unscrupulous a means of keeping themselves in 
 misused power. The danger is a real one. It would be far easier for 
 that organ to act with dishonest motives than it would be to prove such 
 motives so clearly as to warrant a court in restraining the action upon 
 that ground. And if the opportunity to work such injustice might 
 constitutionally be given to an administrative organ, no assumption by 
 the judiciary of an unrestrained veto power which is not granted to 
 the judiciary by the constitutions would be sufficient to prevent such 
 an evil. 
 
OF POWERS IN THE CONSTITUTIONS 39 
 
 rates which differ in extent and character. The legislature 
 may seek merely to prevent manifestly extortionate or man- 
 ifestly discriminatory charges ; or it may, within broad con- 
 stitutional limits, go further and, disregarding the question 
 whether the rates and the relations between rates which 
 have been fixed by the carriers are manifestly improper in 
 themselves, it may command that the rates and the rela- 
 tions between rates be made to conform to principles of 
 public policy laid down by the legislature. 101 And, of 
 course, in deciding upon the policy to be followed and in 
 settling the claims of conflicting interests, there are abun- 
 dant opportunities for differences of opinion and there are 
 at least several possible solutions of the questions at issue. 
 
 101 As Mr. Victor Morawetz said before the Senate Committee on 
 Interstate Commerce on April 18, 1905, "The expressions 'reasonable 
 rates' and 'unreasonable rates' are often used in very different senses. 
 Thus, when it is said that a rate shall be reasonable, this may mean (i) 
 that the rate shall not be unreasonably high and illegal under the 
 common law and the interstate commerce act, or (2) that the rate shall 
 not be unreasonably low in the sense of being confiscatory, or (3) 
 that the rate shall be the particular rate which, in the opinion of a 
 commission or of some particular person, ought to be established 
 between these two extremes." "There is a wide range between a rate 
 that is unreasonably high, and therefore illegal as against the shipper, 
 and a rate that is so low as to be confiscatory as against the carrier. 
 For example : assuming that a railway company may charge 40 cents a 
 hundred pounds for carrying a given article between two points without 
 making the rate unreasonably high and therefore illegal, it is quite 
 possible that this rate might be reduced by legislative action to, say, 30 
 cents a hundred pounds without violating any constitutional right of 
 the carrier. In this case the maximum rate which would be reasonable 
 and which could be imposed by the carrier upon the shipper would be 
 40 cents a hundred pounds, and the minimum rate which could be 
 imposed by the legislature on the railway company would be 30 cents a 
 hundred pounds." As the legislature may prohibit rates which are 
 extortionate and may prescribe rates which are not confiscatory, there 
 is no reason whatever to doubt that the legislature may itself fix rates 
 anywhere between those extremes, and that it may authorize a com- 
 mission to fix rates at any point between those extremes if the legisla- 
 ture declares what that point shall be. The opinion in Trustees v. 
 Saratoga G., E. L. & P. Co., (1908) 191 N. Y. 123, 83 N. E. 693, 700, 
 does not call for serious consideration. The court apparently over- 
 looked the fact that a legislature may itself name specific rates, and 
 did not realize that the word "reasonable" is used in more than one 
 sense. And in Interstate C. S. Ry. Co. v. Commonwealth, (1907) 207 
 U. S. 79, 86, 28 Sup. Ct. 26, 27, Holmes, J., apparently did not give 
 sufficient consideration to the use of the word "reasonable." On that 
 point he spoke only for himself. 
 
40 RATE REGULATION AND THE DISTRIBUTION 
 
 For the problems involved in rate regulation are compli- 
 cated and important. A legislature, in deciding upon prin- 
 ciples of regulation, may affect economic conditions within 
 the territory subject to it at least as greatly as they could 
 be affected by any possible changes in the federal tariff. 102 
 Since, therefore, there is a wide range of possible differ- 
 ences in the extent and character of regulations, it neces- 
 sarily follows that, unless legislative power may be dele- 
 gated, when the legislature entrusts to a commission the 
 power of naming specific rates, it must state definitely what 
 principles are to be made effective by that commission. 
 
 Some of the courts which have sustained statutes author- 
 izing commissions to name railroad rates have thought, 
 more or less clearly, that in those statutes the legislatures 
 had declared what the law should be and had left to the 
 commissions merely the enforcement of legislation. We 
 
 102 For example, a change in the relation between the rates charged 
 on carload lots and those charged on less than carload lots may cause 
 the building up of a jobbing business or may cause the following of 
 different methods of distribution; a change in the relation between 
 raw and manufactured products, as between grain and flour or live 
 stock and dressed meat, may cause a shifting in the location of a 
 manufacturing industry; a change in the relation between products 
 which can at times be substituted for each other, as between the various 
 kinds of building materials or the various kinds of food stuffs, may 
 seriously affect the producers; and a change in the relation between 
 different termini may cause the decay of one community and the 
 upbuilding of another. A change of rate upon one road may be 
 important mainly because of the change in relation to rates charged 
 by another road which carries products from a competing source of 
 supplies or to a competing market in a different part of the country. 
 Of course, where the rates imposed by the government are merely 
 maximum and not absolute the carrier may be able to allow the relation 
 between the rates actually charged to remain the same. But any 
 change in the relation between rates does affect economic conditions 
 and may affect them seriously. And even when no question of the 
 relation between rates is involved, a change in rates may have a serious 
 effect upon the producers as well as upon the railroad and upon the 
 consumers. Passing over the more obvious illustrations a reduction 
 in the rates chargeable may make it necessary for the carrier to reduce 
 its operating expenses, delaying transportation in each case until there 
 accumulates an amount of freight nearer to the maximum hauling 
 capacity of its engines, in that way giving to the large producer or the 
 producer at a large shipping centre an advantage over a competitor 
 who produces less or who is less favorably situated. 
 
OF POWERS IN THE CONSTITUTIONS 4! 
 
 have gathered together the cases in which the courts took 
 that position and have shown the provisions of the stat- 
 utes there involved. 103 But none of those courts realized 
 that important differences in rate regulation are constitu- 
 tionally possible. Consequently, of course, none of those 
 courts sufficiently considered the question whether in the 
 statute before it the legislature had actually established defi- 
 nite principles for the guidance of the commission in nam- 
 ing specific rates. And for that reason it cannot be said 
 that that question has been finally settled as to any particu- 
 lar statutory provision. 
 
 It is possible, in view of the context in some of the stat- 
 utes, that the term "reasonable rates" is used to denote rates 
 which mark the border beyond which charges by the car- 
 rier would be extortionate, and while there may be some 
 doubt as to just what would constitute an extortionate 
 charge, it seems that a grant of power to name such rates 
 would not be so indefinite as to be unconstitutional. But 
 the statutes do not appear to use the word "reasonable" in 
 any other sense which is so definite that, if interpreted in 
 that way, a grant of power to name "reasonable rates" 
 would be constitutional. It is true that some courts have, 
 by way of false analogy, applied the term "reasonable" to 
 rates which were not so low as to be confiscatory ; yet we 
 cannot say that the statutes in empowering the naming of 
 "reasonable rates" intended to direct that the rates should 
 be made as low as would be constitutional. And no one 
 who is acquainted with railroad transportation would assert 
 that, on principle, between the extremes of extortion and 
 confiscation there can be only one rate which is justifi- 
 able. 104 
 
 While, however, a grant of the power to name "reason- 
 
 " See note 33, supra. 
 
 104 As Mr. Victor Morawetz said before the Senate Committee on 
 Interstate Commerce on April 18, 1905, "It is rarely, if ever, true that 
 there is but one just and reasonable rate for the transportation of a 
 given article between two points. In nearly every instance there is a 
 wide range within which any rate would be just and reasonable." 
 
42 RATE REGULATION AND THE DISTRIBUTION 
 
 able rates" is constitutional if that term is used by the legis- 
 lature to enunciate a definite principle in accordance with 
 which the commission must act, yet when that term is inex- 
 tricably bound up with other terms which are indefinite the 
 entire clause seems to be unconstitutional. This is true in 
 the case of the Interstate Commerce Act. And we have 
 there not only the language of the statute itself but also 
 the interpretation which the commission has placed upon 
 such language to show that Congress has attempted to confer 
 upon the commission a discretion which is so broad that 
 the provision cannot be upheld upon any ground which is 
 not flatly inconsistent with the rule that legislative power 
 may not be delegated. 
 
 We have, for instance, the statement of the commission 
 itself that "every case before the commission, however 
 trivial it may appear, involves in its disposition the formu- 
 lation of principles under the law which have important 
 bearing upon the business of carriers and the commerce, 
 not only of the immediate locality, but often of the entire 
 country." 105 And while Congress may not have realized 
 
 105 Sixth Annual Report, (1892) p. 12. This statement was repeated 
 in its Seventh Annual Report, (1893) p. 13, the commission also saying 
 that "what may sometimes appear to be unnecessary delay in the dispo- 
 sition of matters before the commission is really the taking of time to 
 consider the effect of a ruling upon the whole situation and beyond 
 that which might be just as between only the parties to the record." 
 And in its Ninth Annual Report, (1895) p. 59. the commission said, 
 "To some extent the principles upon which taxation rests must be 
 allowed in fixing a just rate; to some extent the result of the rate 
 upon the development of industries must be taken into the account in 
 all decisions which the commission is called upon to make; to some 
 extent every question of transportation involves moral and social con- 
 siderations, so that a just rate cannot be determined independently of 
 the theory of social progress." See also Fourth Annual Report, (1890) 
 p. 6; Texas & P. Ry. Co. v. Interstate Com. Comn., (1896) 162 U. S. 
 197, 234, 1 6 Sup. Ct. 666, 681. Commissioner Prouty said in the Ameri- 
 can Monthly Review of Reviews for May, 1906, p. 595, "Now the fixing 
 of a railway rate is in its nature legislative rather than judicial. There 
 is no standard by which it can be determined. ... In determining 
 the justice or reasonableness of a particular rate all these factors, and 
 many others, may present themselves for consideration. They are 
 properly taken into account by the traffic official who fixes the rate in 
 the first instance, and they must be considered by the administrative 
 body which revises that rate. It is finally a question of judgment what, 
 
OF POWERS IN THE CONSTITUTIONS 43 
 
 the indefiniteness of its grant of power, it is true that a 
 consistent application of the law involves the formulation of 
 important principles which may affect fourteen Jrillion 
 dollars' worth of railroad property; which may affect one 
 and a half million workmen and their families who are 
 directly dependent upon railroad earnings; and which may 
 affect seriously every industry and every section of the coun- 
 try. And it involves the formulation of those principles by 
 an administrative body and not by Congress. 
 
 Of course, the executive department seeks such grants 
 of power. A President who suspended the enforcement of 
 important laws, and who even turned into a forest reserve 
 millions of acres of land which Congress had expressly 
 directed him to throw open to public settlement, 106 does not 
 hesitate to ask for broad grants of discretion. The power 
 which he secured for the Interstate Commerce Commission 
 is no greater than that which he tried to secure for his 
 Commissioner of Corporations, a power which in the hands 
 of an aggressive person might prove very useful during 
 political campaigns especially in the absence of a law 
 requiring the publication of the receipts of campaign com- 
 mittees and perhaps at other times. And that power might 
 constitutionally be granted to the Commissioner of Corpo- 
 
 taking everything into account, ought fairly to be done." In the same 
 article he declared, p. 596, "It exercises precisely the same administra- 
 tive function in correcting as does the traffic official in establish- 
 ing" rates, with the qualification that the commission considers more 
 than the interests of the carrier. In connection with that declaration 
 should be read his statement in the same magazine for July, 1906, p. 65, 
 "The making of a railway rate rests in the judgment of the traffic 
 official. Within very wide limits that official could not demonstrate by 
 any legal standard and legal evidence that his rate was right; neither 
 could the shipper demonstrate by the same methods that it was wrong." 
 106 Other illustrations of executive usurpation are given in Pierce, 
 Federal Usurpation, p. 107 et seq. And see also pages 190, 280, 281, 
 283, 304, 355, of that book. It is said that the President also established 
 an extensive code of laws for the Canal Zone without authority from 
 Congress: see Congressional Record for May 26, 1008, p. 7290. And 
 the recent unauthorized issue of bonds by his Secretary of the Treasury 
 is well known. 
 
44 THE DISTRIBUTION OF GOVERNMENTAL POWERS 
 
 rations if the grant of power to the Interstate Commerce 
 Commission is constitutional. 
 
 Indeed, if the legislature may constitutionally grant a 
 broad discretion to a railroad commission, where must it 
 stop? May not Congress delegate to a commission similar 
 power over the tariff or over taxation in general? May 
 not the state legislatures delegate to commissions similar 
 power over the criminal laws? May not the power which 
 is granted to seven men or five or three be granted to one 
 man, 107 and not upon one subject only, but upon every 
 subject which now comes before the legislatures? 108 
 
 107 Indeed, the President can now control the decisions of the Inter- 
 state Commerce Commission, for its members are removable at his 
 pleasure: see section n of the Act. 
 
 "'As was said by Mr. E. B. Whitney in 31 Am. L. Reg. 186, "Many 
 cases could be put in which the ruling party could, for a considerable 
 time, perpetuate its power in a situation like that of the second session 
 of the Fifty-first Congress. President, Senate and House of Repre- 
 sentatives then belonged to the same political party, and had it in their 
 power to make the laws. They knew that on the fourth day of March 
 then next ensuing the opposition would obtain control of one branch 
 of Congress, so that for two years party legislation would be impossible. 
 If a Congress has an unlimited right of delegation, a series of acts 
 could easily, and might in the future, perhaps, not improbably, be 
 passed, which should secure to the President the right of legislation 
 during those two years, while the ensuing Congress would simply and 
 easily, by the ordinary parliamentary processes, be stifled in a deadlock. 
 Thus the power to delegate involves the power to create a limited 
 dictatorship." 
 
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