A I i 0! 8 i 31 4 I 2 ! 01 31 X Um^^H i ! , [ ') ^ SE AND SKLLCRS OF VW BOOKS SAN FRANCISCO THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW THE VALIDITY OF RATE REGULATIONS STATE AND FEDERAL BY ROBERT P. REEDER OF THE PHILADEXPHIA BAB. PHILADELPHIA T. & J. W. JOHNSON CO. I9I4 COPYBIGHT, 1914 BY T. & J. W. JOHNSON CO. T 19/4- PREFACE. This book deals with the principles of constitutional law which are involved in rate regulation. It states the decisions in the rate cases themselves ; and it also goes into a broader discussion of the purposes of those who placed in the Federal Constitution the provisions which bear upon rate regulation. Such a discussion is necessary in view of the condition of the authorities and the import- ance of the issues involved. R. P. R. Philadelphia, October, 1913. HN «n) fr r-i ja a OUTLINE. (Detailed Table of Contents Follows.) THE COMMERCE CLAUSE. Introductory. Implied restraint on the states. Interstate rates. Local rates. Separate intrastate transportation of persons or goods coming from or destined to another state. Charters and contracts. Interstate and intrastate highways. THE DISTRIBUTION OF GOVERNMENTAL POWERS. Introductory. Extent of power of legislature. Limited power of administrative organs. Delegation of power by legislature. Extent of power of courts. THE DUE PROCESS CLAUSES— POSITION OF COURT. Introductory. The "persons" protected. The organs of government restrained. The extent of the restraint. THE DUE PROCESS CLAUSES— DISCUSSION. Introductory. Is the provision necessarily a substantive restraint? The law of the land. The argument concerning redundancy. Discrimination. Constitutional and extra-constitutional restraints. Reasonableness. Just compensation. Text and context. Conclusion. THE EQUAL PROTECTION PROVISION. Introductory. General extent of restraint. Vi OUTLINE. Bearing of provision on rate regulation. Excessive penalties. Reasonableness and just compensation. JUST COMPENSATION. Introductory. Amount of return. Value of property. Operating expenses. Net earnings. Exceptional conditions. Particular rates. THE IMPAIRMENT OF CONTRACTS. Introductory. "Laws" forbidden. Contracts protected. Interpretation of contracts. Limitations upon power to contract. Power to alter, amend or repeal. PREFERENCES TO PORTS. Introductory. Organs of government restrained. Bearing on rate regulation. LIMITATIONS UPON FEDERAL JUDICIAL POWER. Suits against the government. Enforcement of law. Decision of constitutional questions. TABLE OF CONTENTS. CHAPTER I. THE COMMERCE CLAUSE. SEC. INTKODUCTORY. page. 1. Scope of chapter 2 IMPLIED RESTRAINT ON THE STATES. 2. General principles 3 3. Position of Supreme Court 5 4. Reasons for position examined 6 5. Bearing of position upon rate regulation 7 INTERSTATE RATES. 6. General principles 8 7. Instances of interstate rates 9 8. Legislation and the common law 12 9. State laws "affecting but not regulating" interstate commerce . . 12 LOCAL RATES. 10. What are local rates ? 15 11. Local rates which affect interstate rates indirectly 17 12. Local rates which affect interstate rates directly 19 SEPARATE INTRASTATE TRANSPORTATION OF PERSONS OR GOODS COMING FROM OR DESTINED TO ANOTHER STATE. 13. The problem 21 14. The test 22 15. Tax and original package cases 23 16. Some rates under local bills subject to federal control 25 17. Gulf, C. & S. F. Ry. Co. v. Texas 28 18. Is the existence of separate contracts conclusive ? 29 19. Undisclosed intentions 30 20. Auxiliary services 32 CHARTERS AND CONTRACTS. 21. Waiver of constitutional rights, expressly and by implication ... 36 22. Express waiver of constitutional rights 38 vii VIU TABLE OF CONTENTS. „^ INTERSTATE AND INTRASTATE HIGHWAYS. „,^,^ SEC. PACIE. 23. Decisions concerning navigation 42 24. Discussion 44 25. Safety appliance cases 45 CHAPTER II. THE DISTRIBUTION OF GOVERNMENTAL POWERS. INTRODUCTORY. 26. Distribution among three departments of government 47 27. Federal and state problems distinct but similar 47 28. Exceptions to broad general rules 48 29. Distribution of powers not complete 49 30. Local self-government 50 EXTENT OF POWER OF LEGISLATURE. 31. General extent of power 52 32. Power to establish rates 55 33. Power to change common law 56 34. Position of court on rate-making 58 35. Power to enact detailed regulations 59 36. Some powers may be entrusted by legislature to other departments 60 37. LIMITED POWER OF ADMINISTRATIVE ORGANS. 62 DELEGATION OF POWER BY LEGISLATURE. 38. General principles 62 39. Outline of position taken 66 40. Discussion of state and federal authorities on rate-making 67 41. Discussion of position of Supreme Court on rate-making 72 42. Decisions of Supreme Court on delegation of power 76 43. Ascertainment of facts 81 44 Contingent legislation — bearing on general principles 86 45. Contingent legislation as to rates 91 46. Grants of discretion 94 47. Possible differences in extent and character of regulation 98 48. Do the statutes establish definite principles? 101 EXTENT OF POWER OF COURTS. 49. General principles 105 50. Distinction between judicial and legislative power over rates .... 106 51. Judicial review of administrative orders establishing rates 110 TABLE OF CONTENTS. IX CHAPTER III. THE DUE PROCESS CLAUSES— POSITION OF COURT. INTRODUCTORY. _._„ SEC. PAGE. 52. The clauses stated 114 53. Clauses relate to different governments 115 54. Presumption that in other respects clauses have same meaning . . 116 55. Possible points of difference are ignored by the court 117 56. Importance of understanding the provision 118 57. THE "PERSONS" PROTECTED. 120 THE ORGANS OF GOVERNMENT RESTRAINED. 58. Fourteenth Amendment restrains states and their organs of gov- ernment 121 59. Fifth Amendment restrains organs of federal government 126 60. Organs for establishing limitations upon rates 127 THE EXTENT OF THE RESTRAINT. 61. The proper scope of the provision 129 62. The position of the court 130 63. A suitable procedure 130 64. Procedure in establishing limitations upon rates 135 65. Procedure in enforcing limitations upon rates 136 66. Provision regarded as a substantive restraint 138 67. No complete general statement as to restraint 140 68. Particular lines of decision 142 69. Detailed application of rules 144 70. Different tests of constitutionality 144 CHAPTER IV. THE DUE PROCESS CLAUSES— DISCUSSION. INTRODUCTORY. 71. Scope of chapter 149 IS THE PROVISION NECESSARILY A SUBSTANTIVE RESTRAINT? 72. Position taken in Hurtado v. California 150 73. Are all organs of government necessarily restrained ? 152 74. The significance of the word "state" 154 75. Is the restraint necessarily more than procedural? 156 X TABLE OF CONTENTS. „^ THE LAW OF THE LAND. „,„„ SBC. PAOK. 76. "Due process" and "law of the land" provisions are akin 159 77. The "law of the land" in England 160 78. "Due process of law" in England 162 79. The provisions compared 163 80. The term "law of the land" sometimes used in broader sense .... 164 81. Term has same general scope in America as in England 165 82. How may the "law of the land" be changed ? 165 83. The Constitution does not make the "law of the land" unchange- able 167 84. The "law of the land" may be different in the several states 168 85. Judicial alteration of the "law of the land" 169 THE ARGUMENT CONCERNING REDUNDANCY. 86. The question stated 171 87. The question elaborated 172 88. Discussion of question of redundancy 174 DISCRIMINATION. 89. Position of court on discriminatory state action 176 90. Position of court on fraud and improper motives 178 91. Discussion , ^ . 180 CONSTITUTIONAL AND EXTRA-CONSTITUTIONAL RESTRAINTS. 92. Inconsistent positions taken 182 93. Power to declare governmental action unconstitutional 185 94. General duty to enforce legislation 188 95. Passing upon the wisdom or justice of governmental action 189 96. The Ninth Amendment 192 97. Rule stated in Twining v. New Jersey 193 98. Extra-constitutional restraints and rights 194 99. Inalienable rights 195 100. Natural justice, natural rights 196 101. Fundamental rights 197 102. "Essential nature of all free governments" 201 103. Discussion on inalienable rights, etc 202 104. Scope of governmental authority 203 REASONABLENESS. 105. Unreasonable or arbitrary governmental action 207 106. Unnecessary governmental action 212 107. Nature of opinions upon these subjects 213 108. Relevancy of decisions on reasonableness of ordinances 213 109. Reasonable exercises of police power 215 110. Meaning of term "police power" 216 TABLE OF CONTENTS. XI SEC. PAGE. 111. Relevancy of decisions on police power 219 112. Is a change of law a "deprivation?" 220 113. Summary as to police power 221 114. Reasonableness and natural justice 222 115. Massachusetts decisions 222 116. Position of court as to arbitrary governmental action 223 117. Discussion of position 224 118. Reasonableness of rate regulations 226 JUST COMPENSATION. 119. The position of the court 229 120. Dicta in earliest cases 230 121. Chicago, M. & St. P. Ry. Co. v. Minnesota 231 122. Kaukauna and Yesler cases 233 123. Chicago, B. & Q. R. Co. v. Chicago 235 124. The taking of property for private use 238 125. Later cases 240 126. General comment on position of court 241 TEXT AND CONTEXT. 127. The significance of the context 242 128. The true meaning of the term "liberty" 243 129. The position of the court on the term "liberty" 245 130. Allgeyer v. Louisiana 246 CONCLUSION. 131. Position of court criticized 248 132. Should the court now take the correct position? 250 CHAPTER V. THE EQUAL PROTECTION PROVISION. INTRODUCTORY. 133. The clause stated 251 134. The organs of government restrained 251 135. The "persons" protected 252 GENERAL EXTENT OF RESTRAINT. 136. Clause forbids some state actions as well as omissions to act .... 252 137. Discrimination which is forbidden 253 138. Illustrations 255 139. Classification which is permitted 256 140. Wide range of legislative discretion 258 Xll TABLE OF CONTENTS. „^ BEARING OF PROVISION ON RATE REGULATION. „.„„ SEC. PAGE. 141. In general 261 142. Power to limit rates 261 143. Classification of railroads for rate regulation 262 144. Other regulations of railroads 264 145. EXCESSIVE PENALTIES. 264 146. REASONABLENESS AND JUST COMPENSATION. 266 CHAPTER VI. JUST COMPENSATION. INTRODUCTORY. 147. Provision in Fifth Amendment 269 148. Due process and just compensation 269 149. Equal protection and just compensation 269 150. Bearing of requirement upon rate regulation 270 151. Unreasonable or discriminatory regulations 270 162. Not enforcing common law 271 153. Indemnification by government so far as reductions are undue . . 271 154. AMOUNT OF RETURN. 272 VALUE OF PROPERTY. 155. Present value of property 273 156. Cost and capitalization not to be considered 275 157. Producing plant equally eflScient 278 158. Significance of term "present time" 281 159. Tangible property 282 160. Cost of corporation itself 285 161. Cost of business of corporation 285 162. Capitalization of earning capacity 287 163. Stock and bonds 289 164. Value as system 290 165. Apportionment of value 291 166. Particular classes of trafiic 295 167. Unprofitable parts of the property 296 168. Smyth v. Ames criticized 298 169. Rough estimates of value 300 170. Summary as to value 301 TABLE OF CONTENTS. xiii OPERATING EXPENSES. „.„„ SEC. PAGE. 171. General principles 302 172. Transportation 303 173. Maintenance 305 174. Payments to stockholders and bondholders 307 NET EARNINGS. 175. What earnings are to be considered 308 176. Proving amount of earnings 309 177. Rates fair to public 809 178. Rates fair to railroad 310 179. Constitutional rate of return 311 180. No particular rate fixed by Supreme Court 313 181. Other decisions in conflict 315 182. Distribution between stockholders and bondholders 317 183. EXCEPTIONAL CONDITIONS. 318 PARTICULAR RATES. 184. Decisions that only schedule as entirety may be considered 320 185. Decisions on particular rates 324 186. Discussion on considering merely schedule as entirety 325 187. Mileage books 327 CHAPTER VII. THE IMPAIRMENT OF CONTRACTS. INTRODUCTORY. 188. The clause stated 329 "LAWS" FORBIDDEN. 189. In general 329 190. Rule as to judicial decisions 332 191. CONTRACTS PROTECTED. 334 INTERPRETATION OF CONTRACTS. 192. Contractural limitations upon governmental power over rates . . . 335 193. Governmental power not limited by mere implication 337 194. Parties exempted 339 Xiv TABLE OF CONTENTS. gg^ LIMITATIONS UPON POWER TO CONTRACT. ^^^^ 195. In general 340 196. Contracts with luunicipalities 340 197. Contracts between state and carrier 343 198. Contracts between carriers or between carrier and patron 344 199. POWER TO ALTER, AMEND UR REPEAL. 345 CHAPTER VIII. PREFERENCES TO PORTS. INTRODUCTORY. 200. The provision 348 201. ORGANS OF GOVERNMENT RESTRAINED. 348 BEARING ON RATE REGULATION. 202. In general 349 203. Differentials 350 CHAPTER IX. LIMITATIONS UPON FEDERAL JUDICIAL POWER. SUITS AGAINST THE GOVERNMENT. 204. General rule 353 205. What governments come within the rule 356 206. Suits against public oflBcials 356 ENFORCEMENT OF LAW. 207. Indictment 359 208. Putting twice in jeopardy 359 209. Due process of law 360 210. Trials in criminal cases 361 211. Suits at common law 363 212. Self-incrimination 364 213. Unreasonable searches and seizures 367 214. Other testimony 368 215. Punishment 368 TABLE OF CONTENTS. XV „_ DECISION OF CONSTITUTIONAL QUESTIONS. SIC. PAGE. 216. Questions which may be brought before the court 369 217. Rules of construction 372 218. Partial unconstitutionality 375 CHAPTER I. THE COMMERCE CLAUSE. INTRODUCTORY. 1. Scope of chapter. IMPLIED RESTRAINT ON THE STATES. 2. General principles. 3. Position of Supreme Court. 4. Reasons for position examined. 5. Bearing of position upon rate regulation. INTERSTATE RATES. 6. General principles. 7. Instances of interstate rates. 8. Legislation and the common law. 9. State laws "affecting but not regulating" interstate commerce. LOCAL RATES. 10. What are local rates? 11. Local rates which affect interstate rates indirectly. 12. Local rates which affect interstate rates directly. SEPARATE INTRASTATE TRANSPORTATION OF PERSONS OR GOODS COmNG FROM OR DESTINED TO ANOTHER STATE. 13. The problem, 14. The test. 15. Tax and original package cases. 16. Some rates under local bills subject to federal control. 17. Gulf, C. & S. F. Ry. Co. v. Texas. 18. Is the existence of separate contracts conclusive? 19. Undisclosed intentions. 20. Auxiliary services. CHARTERS AND CONTRACTS. 21. Waiver of constitutional rights, expressly and by implication. 22. Express waiver of constitutional rights. INTERSTATE AND INTRASTATE HIGHWAYS. 23. Decisions concerning navigation. 24. Discussion. 25. Safety appliance cases. 2 THE COMMERCE CLAUSE. INTRODUCTORY. Scope of chapter. 1. The Federal Constitution in the eighth section of Article I empowers Congress ' ' to regulate commerce with foreign nations, and among the several states and with the Indian tribes." This provision we shall consider so far, though only so far, as it affects governmental regula- tion of railroad charges for either interstate transporta- tion or local transportation.^ By virtue of this provision Congress may unquestion- ably limit the charges for transportation which is strictly interstate.^ And, on the other hand, it is clear that the states may regulate commerce which is not interstate or foreign or with the Indian tribes, for the states have all governmental powers except those of which they have been deprived by the Federal Constitution.^ But those simple statements leave unanswered several important questions. Have the states any authority over interstate rates and has Congress any authority over local rates? What are interstate rates, and what are local 1 As to commerce with the territories see Interstate Com. Comn. v. United States ex rel. Humboldt S. Co. (1912) 224 U. S. 474, 32 Sup. Ct. 556, 56 L. ed. 849; Stoutenburgh v. Hennick (1889) 129 U. S. 141, 9 Sup. Ct. 256, 32 L. ed. 637; Hanley v. Kansas C. S. Ry. Co. (1903) 187 U. S. 617, 23 Sup. Ct. 214, 47 L. ed. 333; El Paso & N. E. R. Co. v. Gutierrez (1909) 215 U. S. 87, 30 Sup. Ct. 21, 54 L. ed. 106; Missouri, K. & T. Ry. Co. v. Bowles (1897) 1 Ind. Terr. 250, 40 S. W. 899. As to foreign commerce see Act June 29, 1906, sees. 1, 2, 34 U. S. Stats, at L. 584, 586; Texas & N. 0. R. Co. v. Sabine T. Co. (1913) 227 U. S. Ill, 33 Sup. Ct. 229, 57 L. ed. 442; The Abby Dodge (1912) 223 U. S. 166, 32 Sup. Ct. 310, 56 L. ed. 390; United States v. Nord Deutscher Lloyd (1912) 223 U. S. 512, 32 Sup. Ct. 244, 56 L. ed. 531; United States v. Hamburg A. P. F. A. G. (1911) 200 Fed. 806; American B. Co. V. United F. Co. (1909) 213 U. S. 347, 29 Sup. Ct. 511, 53 L. ed. 826. 2 See sec. 6, infra. 3 This would be true even if the Tenth Amendment had never been adopted. See The Federalist, Nos. 32, 82; Kansas v. Colorado (1907) 206 U. S. 46, 89, 90, 27 Sup. Ct. 055, 664, 51 L. ed. 950. IMPLIED RESTRAINT ON THE STATES. 3 rates? And, finally, are there any exceptions or limita- tions, other than those which are due to other provisions of the Constitution, to the powers of the respective gov- ernments over charges for transportation ? Those are the questions which, in one form or another, we shall con- sider in the present chapter. IMPLIED RESTRAINT ON THE STATES. General principles. 2. And, first, have the states any authority over inter- state commerce? Originally they had complete authority over it, but since the adoption of the Constitution Con- gress has had power to regulate such commerce, and, of course, when Congress exercises a power which has been granted to it by the Constitution any state law which is inconsistent with the act of Congress must give way.^ But if there is no federal statute which covers the matter regulated and is inconsistent with state legislation, is a state law which regulates interstate commerce unconsti- tutional merely because Congress has power to regulate such commerce? It is submitted that the court should hold that the commerce clause does not prohibit state legislation under those circumstances— that a mere gTant of power to the federal government does not render it unconstitutional for a state to exercise that power if the state law is not inconsistent with any federal law. In support of this po- sition is the fact that in several cases where power is 4 "This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of thr- land; and the judges in every state shall be bound thereby, anything in thi< constitution or laws of any state to the contrary notwithstanding:" Article VI, clause 2. See also note 24, infra. 4 THE COMJVIERCE CLAUSE. granted to the federal government by the Constitution there are also other provisions of the Constitution which expressly forbid the states to exercise such powers. This is true concerning the coinage of money,^ the granting of letters of marque and reprisal,^ and the making of treat- ies."^ And the powers of the states to lay duties ^ and tc engage in war^ are limited in express terms.^^ Yet the grant to Congress of power over interstate commerce is not accompanied by any clause, except the one referring to duties on tonnage,^^ which prohibits the states to exer- cise that power over interstate commerce which they pos- sessed before the Constitution was adopted. And the fact that it was thought necessary to state in express terms those restraints upon state action which have been named goes to show that in the absence of express restraints upon the states the powers which have been granted to Congress should be regarded as simply paramount, and it goes veiy far towards proving that in the absence of in- 5 For grant to Congress see Article I, sec. 8, cl. 5 ; for prohibition on states see Article I, sec. 10, cl. 1. 6 For grant to Congress see Article I, sec. 8, cl. 11; for prohibition on states see Article I, sec. 10, cl. 1. 7 The President "shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators present concur:" Article II, sec. 2, cl. 2. For prohibition on states see Article I, sec. 10, cl. 1 ; and see also cl. 3. 8 For grant to Congress sec Article I, sec. 8, cl. 1, which is limited, of course, by provisions in sec. 9 of that Article. For limitations on states see Article I, sec. 10, clauses, 2, 3. 8 For grant to Congress see Article I, sec. 8, cl. 11; for prohibition on states see Article I, sec. 10, cl. 3. 10 See also Article I, sec. 8, cl. 17, where the power of Congress to legislate for the District of Columbia is expressly declared to be exclusive. 11 Article I, sec. 10, cl. 3. The provision as to "imports" in cl. 2 of that section refers only to foreign commerce: American S. & W. Co. v. Speed (1904) 192 U. S. 500, 24 Sup. Ct. 365, 48 L. ed. 538. IMPLIED RESTRAINT ON THE STATES. 5 consistent federal legislation state laws upon those sub- jects should be sustained.^ ^ Position of Supreme Court. 3. The United States Supreme Court, however, does not take this position. It declares that in some matters Con- gress has sole power ^^ over interstate commerce, although it admits that in other matters Congress has simply para- mount power over that commerce. It holds that in some cases uniformity of regulation is essential and in those cases Congress alone may legislate, while in other in- stances uniformity of regulation is not essential and the states may legislate in the absence of conflicting federal legislation.^^ And incidentally it holds that the court 12 See The Federalist, Nos. 32, 82 ; and dissenting opinions of Daniel, J., and Woodbury, J., in Passenger Cases ( 1849) 7 How. 283, 497, 532, 554, 564, 12 L. ed. 702 ; and also the opinion of the court in The Hamilton ( 1907 ) 207 U. S. 398, 404, sub nom. Old D. S. Co. v. Gilmore, 28 Sup. Ct. 133, 134, 52 L. ed. 264. 13 For the sake of clearness it is better not to speak of the "exclusive" power of Congress. That word might be understood either as opposed to "concurrent," or as opposed to "paramount." And it may be added that reasons may well be advanced in support of the position that the power of Congress is more than simply concurrent, which could not be advanced in support of the position that the power is more than simply paramount. 14 See Robbins v. Shelby Taxing Dist. (1887) 120 U. S. 489, 492, 7 Sup. Ct. 5!^2, 593, 30 L. ed. 694, (where the decisions in some of the earliest cases are misstated) ; cases there cited; cases cited in Atlantic & P. T. Co. v. Philadelphia (1903) 190 U. S. 160, 162, 23 Sup. Ct. 817, 47 L. ed. 995; and Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 33 Sup. Ct. 729, 57 L. ed. 1511; Western U. T. Co. v. Kansas (1910) 216 U. S. 1, 26, 27, 30 Sup. Ct. 190, 197, 54 L. ed. 355; Missouri P. Ry. Co. v. Larabee F. M. Co. (1909) 211 U. S. 612, 621, 29 Sup. Ct. 214, 217, 53 L. ed. 352; Olsen v. Smith (1904) 195 U. S. 332, 341, 25 Sup. Ct. 52, 53, 49 L. ed. 224; Leisy v. Hardin (1890) 135 U. S. 100, 109, 119, 10 Sup. Ct. 681, 684, 688, 34 L. ed. 128; Pound v. Turck (1877) 95 U. S. 459, 24 L. ed. 525; West v. Kansas N. G. Co. (1911) 221 U. S. 229, 261, 31 Sup. Ct. 564, 573, 55 L. ed. 716. Compare Cooke, The Com- merce Clause, p. 110; Cooke, The Pseudo-Doctrine of the Exclusiveness of the Power of Congress to Regulate Commerce, 20 Yale L. J. 297; book 6 THE COMMERCE CLAUSE. may determine whether matters are of such a nature that they may be regulated only by Congress.^^ Reasons for position examined. 4. We must bear in mind that the court concedes that the power of Congress is in some respects simply para- mount. So far as we may judge from the words of the commerce clause, though, it seems that the authority granted to it must be either always simply paramount or always vested solely in Congress. Those words them- selves do not show that the clause bestows more than one kind of power upon Congress. And the court has not shown that the Constitution supports its position that the power of Congress is bifurcated. As for the reason in support of the statement that the authority over interstate commerce is sometimes vested solely in Congress, it is doubtless true that those who adopted the Constitution thought that in some matters concerning interstate commerce uniform rules were highly desirable. But it is also doubtless true that they thought that Congress would deal with such matters, that Con- gress would determine whether or not a matter were such as to require uniform regulation, and that it would be congressional action rather than any judicial views as to the nature of the state legislation which would render review in 12 Harv. L. Rev. 359. — In one of the most important cases upon the general subject which we are considering, Cooley v. Board of Wardens (1851) 12 How. 299, 318, 13 L. ed. 996, reference is made to the power of Congress to legislate for the District of Columbia, and that power is said to be of such a nature as to be absolutely and totally repugnant to the exist- ence of similar power in the states. But the fact that Congress alone may legislate for the District of Columbia does not rest upon any judicial views as to the nature of the power conferred. It rests upon the express words of the Constitution. 15 See note 16, infra. IMPLIED RESTEAINT ON THE STATES. 7 state legislation upon such matters invalid.^ ^ In other words, there does not seem to be any reason for saying that the court should inquire whether uniformity of regu- lation is desirable. The Constitution seems to state ex- pressly just what powers were intended to be placed solely within the control of Congress and it nowhere declares, either expressly or by necessary implication from any ex- press provision, that the power bestowed upon Congress by the commerce clause or any part of that power is vested solely in Congress. For the court, then, to hold that state legislation which does not conflict with federal legislation is forbidden by the commerce clause seems to be entirely unwarranted. Bearing of position upon rate regulation. 5. The fact remains, however, that the court declares that the power over interstate commerce is in some re- spects vested only in Congress and it is not likely that the court will reverse its position. And while such rul- ings ought not to be applied in cases in which it is doubt- ful whether they are strictly applicable, it is clear that if they are enforced at all they must have a material bear- ing upon state regulation of the charges for interstate transportation. Of course, such rulings are of less im- portance now than they were before the enactment of the Interstate Commerce Act. Where Congress has legislated state legislation which is inconsistent therewith may be declared invalid without reference to those decisions. But unless Congress has dealt with railroad rates to the full extent of its power, the rule which has been laid down in 16"The question whether or not a given subject admits of only one uni- form system or plan of regulation is primarily a legislative question, not a judicial one:" Thayer, Cases on Constitutional Law, 2190, note. 8 THE COMMERCE CLAUSE. those decisions even to-day requires serious considera- tion.!"^ INTERSTATE RATES. General principles. 6. The Supreme Court has decided repeatedly that Congress may limit the charges for interstate transporta- tion. This position has heen shown not only by its en- forcement of the Anti-trust Act/* which indirectly regu- lates charges, but also by its enforcement of the provis- ions of the Interstate Commerce Act ^^ and by its decisions 17 Compare the authorities cited in sec. 9, infra, wlierein the effect of the rule whose validity we have just considered is modified by a rule of doubtful consistency with it. 18 For example, in United States v. Union P. R. Co. (1912) 226 U. S. 61, 470, 33 Sup. Ct. 53, 162, 57 L. ed. 124; United States v. Terminal R. Assn. of St. Louis (1912) 224 U. S. 383, 32 Sup. Ct. 507, 56 L. ed. 810; Northern S. Co. V. United States ( 1904) 193 U. S. 197, 24 Sup. Ct. 436, 48 L. ed. 679; United States v. Joint T. Assn. (1898) 171 U. S. 505, 19 Sup. Ct. 25, 43 L. ed. 259; United States v. Trans-Missouri F. Assn. (1897) 166 U. S. 290, 17 Sup. Ct. 540, 41 L. ed. 1007. See also United States v. Lake S. & M. S. Ry. Co. (1912) 203 Fed. 295. 19 See, in addition to the cases referred to later on, the following cases in which that Act was enforced but which did not turn upon the question whether or not the commerce was interstate: Morrisdale C. Co. v. Pennsyl- vania R. Co. ( 1913) 230 U. S. 304, 33 Sup. Ct. 938, 57 L. ed. 1494; Illinois C. R. Co. V. Henderson E. Co. (1913) 226 U. S. 441, 33 Sup. Ct. 176, 57 L. ed. 290; Kansas C. S. Ry. Co. v. Albers Comn.Co. (1912) 223 U. S. 573, 32 Sup. Ct. 316,56 L.ed. 556; United States v. Miller (1912) 223 U. S. 599, 32 Sup. Ct. 323, 56 L. ed. 568 ; Galveston, H. & S. A. Ry. Co. v. Wallace ( 1912 ) 223 U. S. 481, 32 Sup. Ct. 205, 56 L. ed. 516; Interstate Com. Comn. v. Union P. Ry. Co. (1912) 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed. 308; Union P. Ry. Co. V. Updike G. Co. (1911) 222 U. S. 215, 32 Sup. Ct. 39, 56 L. ed. 171; United States v. Lehigh V. R. Co. (1911) 220 U. S. 257, 31 Sup. Ct. 387, 55 L. ed. 458; Louisville & N. R. Co. v. Mottley (1911) 219 U. S. 467, 31 Sup. Ct. 265, 55 L. ed. 297; Chicago, I. & L. Ry. Co. v. United States (1911) 219 U. S. 486, 31 Sup. Ct. 272, 55 L. ed. 305; Interstate Com. Comn. v. Chicago, R. I. & P. Ry. Co. (1910) 218 U. S. 88, 30 Sup. Ct. 651, 54 L. ed. 946; Interstate Com. Comn. v. Chicago, B. & Q. R. Co. (1910) 218 U. S. 113, 30 Sup. Ct. 660, 54 L. ed. 959; American Ex. Co. V. United States (1909) 212 U. S. 522,29 Sup. Ct. 315, 53 L. ed. 635; INTEESTATE EATES. 9 that state legislation which regulates interstate com- merce is unconstitutional because the power to regulate such commerce has been granted to the federal govern- ment. Instances of interstate rates. 7. Thus, the court has held that the act of Congress which regulates interstate commerce applies when a series of railroads carrying under a joint arrangement charges more for carrying from a point outside a state to one point within the state than to a more distant point within the same state.^^^ Upon the ground that governmental power to make such regulations rests only in the federal government, it has decided that a state may not limit the United States v. New Y. C. & H. E. E. Co. (1909) 212 U. S. 509, 29 Sup. Ct. 313, 53 L. ed. 629; New Y. C. & H. E. E. Co. v. United States (1909) 212 U. S. 500, 29 Sup. Ct. 309, 53 L. ed. 624; New Y. C. & H. E. E. Co. v. United States (1909) 212 U. S. 481, 29 Sup. Ct. 304, 53 L. ed. 613; Armour P. Co. V. United States (1908) 209 U. S. 56, 28 Sup. Ct. 428, 52 L. ed. 681; Texas & P. Ey. Co. v. Cisco Oil Mill ( 1907 ) 204 U. S. 449, 27 Sup. Ct. 358, 51 L. ed. 562; Texas & P. Ey. Co. v. Abilene C. O. Co. (1907) 204 U. S. 426, 27 Sup. Ct. 350, 51 L. ed. 553; Interstate Com. Comn. v. Baird (1904) 194 U. S. 25, 24 Sup. Ct. 563, 48 L. ed. 860; Wight v. United States (1897) 167 U. S. 512, 17 Sup. Ct. 822, 42 L. ed. 258. And see Southern P. T. Co. v. Interstate Com. Comn. (1911) 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310; Second Employers' Liability Cases — Mondou v. New Y., N. H. & H. E. Co. (1912) 223 U. S. 1, 32 Sup. Ct. 169, 56 L. ed. 327. 20 Louisville & N. E. Co. v. Behlmer (1900) 175 U. S. 648, 20 Sup. Ct. 209, 44 L. ed. 309; Cincinnati, N. O. & T. P. Ey. Co. v. Interstate Com. Comn. (1896) 162 U. S. 184, 16 Sup. Ct. 700, 40 L. ed. 935. See also note 37, infra, and Missouri, K. & T. Ey. Co. v. New E. M. Co. (1909) 80 Kan. 141, 101 Pac. 1011; Commonwealth v. Peoples Ex. Co. (1909) 201 Mass. 564, 88 N. E. 420; United States v. Vacuum Oil Co. (1908) 158 Fed. 536; Corcoran v. Louisville & N. E. Co. (1907) 125 Ky. 634, 101 S. W. 1185; United States v. Standard Oil Co. (1907) 155 Fed. 305; United States v. Seaboard Ey. Co. (1897) 82 Fed. 563. Compare Allen & Lewis v. Oregon E. & Nav. Co. (1901) 106 Fed. 265, 269.— In Interstate Com. Comn. v. Eeichmann (1906) 145 Fed. 235, it was held that Congress may regulate the charges for the use of cars which are used for interstate transportation but which are not owned by any railroad company. 10 THE COMMERCE CLAUSE. rates for carrying even between stations within its terri- tory when a part of the route is outside the state i^^ and that a state may not limit the charge for carrying goods from a point within the state to another point within that state and there placing the goods on board a ship in pre- paration for their transportation out of the state, and this is true even though at the time when the goods are ten- dered to the railroad for transportation no decision has 2iHaiiley v. Kansas C. S. Ry. Co. (1903) 187 U. S. 617, 23 Sup. Ct. 214, 47 L. ed. 333. See also St. Louis & S. F. Ry. Co. v. State (1908) 87 Ark. 562, 113 S. W. 203; United States v. Erie R. Co. (1909) 166 Fed. 352; Mires v. St. Louis & S. F. R. Co. (1908) 134 Mo. App. 379, 114 S. W. 1052; Hunter v. Charleston & W. C. Ry. Co. (1908) 81 S. C. 169, 62 S. E. 13; Frasier v. Charleston & W. C. Ry. Co. (1908) 81 S. C. 162, 62 S. E. 14; United States v. Delaware, L. & W. R. Co. (1907) 152 Fed. 269; Cowden v. Pacific C. S. Co. (1892) 94 Cal. 470, 29 Pac. 873, 18 L. R. A. 221; note in 28 L. R. A. N. S. 985. Compare Ewing v. Leavenworth (1913) 226 U. S. 464, 33 Sup. Ct. 157, 57 L. ed. 303; Hardwick F. E. Co. v. Chicago, R. I. & P. Ry. Co. (1910) 110 Minn. 25, 124 N. W. 819; St. Louis & S. F. R. Co. V. Hadley (1909) 168 Fed. 317; Dugan v. State (1890) 125 Ind. 130, 25 N. E. 171, 9 L. R. A. 321; Cooke, The Commerce Clause, p. 58, note. And see Pacific C. S. Co. V. Board of R. Comrs. (1883) 18 Fed. 10, 9 Saw. 253, cited with approval in the Hanley case, supra, which holds that a state may not regulate rates for carrying between two places within its borders by a boat which goes upon the high seas. As to the power of Congress to regulate charges for carrying between two places within the same state upon a water- way which is entirely within the state, but which connects with the ocean, see p. 42, infra. — Justice Woodbury said in his separate opinion in Pas- senger Cases (1849) 7 How. 283, 559, 12 L. ed. 702, "So far as reasons exist to make the exercise of the commercial power exclusive, as on matters of exterior, general and uniform cognizance, the construction may be proper to render it exclusive, but no further, as the exclusiveness depends in this case wholly on the reasons, and not on any express prohibition, and hence cannot extend beyond the reasons themselves. Where they disappear, the exclusiveness should halt. In such case, emphatically, cessante ratione, cessat et ipsa lex." If this is true, the decision in Hanley v. Kansas C. S. Ry. Co. seems to be incorrect. If the state attempted to regulate the run- ning of trains over the entire course, the rouie might be material and it might be said that the state was interfering with interstate matters. But with regard to the question of rates it seems that the route isnot material, and where the transportation is between two points within the same state the rates affect only persons within that state and are in general only a local matter. INTERSTATE RATES. 11 been reached as to their ultimate destination.-^ And be- fore any federal statute on the subject had been enacted, the court decided that a state may not interfere with the rates when one of the termini is beyond the jurisdiction of the state, declaring unconstitutional a statute which forbade a railroad carrying to a place outside the state to charge more from one point within its borders than from a more distant point within its borders.-^ It is a matter of course that since the passage of the interstate com- merce law a state may not regulate the charges for inter- state transportation.^^ Inasmuch as the interstate com- 22 Railroad Comn. of Ohio v. Worthington (1912) 225 U. S. 101, 32 Sup. Ct. 653, 56 L. ed. 1004. See also to the seme effect Texas & N. O. R. Co. v. Sabine T. Co. (1913) 227 U. S. Ill, 33 Sup. Ct. 229, 57 L. ed. 442. 23 Wabash, St. L. & P. Ry. Co. v. Illinois (1886) 118 U. S. 557, 7 Sup. Ct. 4, 30 L. ed. 244. On the point that even in the absence of federal action a state may not limit interstate rates, see also Covington & C. B. Co. v. Ken- tucky (1894) 154 U. S. 204, 14 Sup. Ct. 1087, 38 L, ed. 962; St. Clair County v. Interstate S. & C. T. Co. (1904) 192 U. S. 454, 24 Sup. Ct. 300, 48 L. ed. 518; Northern P. Ry. Co. v. Keyes (1898) 91 Fed. 47, 51. 24 Chicago, I. & L. Ry. Co. v. United States (1911) 219 U. S. 486, 497, 31 Sup. Ct. 272, 275, 55 L. ed. 305; Gulf, C. & S. F. Ry. Co. v. Hefley (1895) 158 U. S. 98, 15 Sup. Ct. 802, 39 L. ed. 910; New Y. C. & H. R. R. Co. v. Board of Chosen Freeholders (1907) 74 N. J. L. 367, 65 Atl. 860; Kansas C. S. Ry. Co, v. Brooks (1907) 84 Ark. 233, 105 S. W. 93; Rosenbaum G. Co. V. Chicago, R. I. & T. Ry. Co. (1903) 130 Fed. 46; and see United States Constitution, Article VI, clause 2; St. Louis, S. F. & T. Ry. Co. v. Scale (1913) 229 U. S. 156, 33 Sup. Ct. 651, 57 L. ed. 1129; St. Louis, I. M. & S. Ry. Co. V. Hesterly (1913) 228 U. S. 702, 33 Sup. Ct. 703, 57 L. ed. 1031; Mc- Dermott v. Wisconsin (1913) 228 U. S. 115, 132, 33 Sup. Ct. 431, 435, 57 L. ed. 754; Michigan C. R. Co. v. Vreeland (1913) 227 U. S. 59, 66, 33 Sup. Ct. 192, 194, 57 L. ed. 417; Northern S. Co. v. United States (1904) 193 U. S. 197, 333, 24 Sup. Ct. 436, 455, 48 L. ed. 679; Missouri, K. & T. Ry. Co. v. Haber (1898) 169 U. S. 613, 626, 18 Sup. Ct. 488, 493, 42 L. ed. 878.— Where destination is at state boundary line, see Scammon v. Kansas C, St. J. & C. B. R. Co. (1890) 41 Mo. App. 194; and where destination is just outside the state, see Railroad Co. v. Maryland (1874) 21 Wall. 456, 22 L. ed. 678, with interpretation in Covington & C. B. Co. v. Kentucky (1894) 154 U. S. 204, 210, 14 Sup. Ct. 1087, 1089, 38 L. ed. 962. It is, nevertheless, unlikely that Maryland could at the present time directly regulate fares between Baltimore and Washington. In connection with Railroad Co. v. Maryland, 12 THE COMMERCE CLAUSE. merce act applies to all ferries used or operated in con- nection with any railroad, a state may not regulate the charges for transportation on an interstate ferry even when the transportation is not in connection with railroad transportation.^** Legislation and the common law. 8. Before that statute was enacted, the common law rule that charges for transportation must be reasonable-*' was in full force and might have been invoked in the state courts even with regard to interstate transportation ;2'' but since the passage of that statute redress can be ob- tained only in the manner prescribed by it.^^ State laws "affecting but not regulating" interstate com- merce. 9. While the silence of Congress would not authorize a see Western U. T. Co. v. Chiles (1907) 107 Va. 60, 57 S. E. 587, where, it will be observed, the decision is not based on Western U. T. Co. v. Jamea (1896) 162 U. S. 650, 16 Sup. Ct. 934, 40 L. ed. 1105. 25 New Y. C. & H. R. R. Co. v. Board of Chosen Freeholders (1913) 227 U. S. 248, 33 Sup. Ct. 269, 57 L. ed. 499. Compare 23 Harv. L. Rev. 484. 26 See note 14 in Chapter 2, infra. 27 See Texas & P. Ry. Co. v. Abilene C. O. Co. (1907) 204 U. S. 426, 27 Sup. Ct. 350, 51 L. ed. 553; Western U. T. Co. v. Call P. Co. (1901) 181 U. S. 92, 21 Sup. Ct. 561, 45 L. ed. 765; and also Cooke, Commerce Clause, p. 116; Rose, Code of Federal Procedure, sec. 13; Western U. T. Co. v. Com- mercial M. Co. (1910) 218 U. S. 406, 31 Sup. Ct. 59, 54 L. ed. 1088. 28 Texas & P. Ry. Co. v. Abilene C. O. Co. ( 1907 ) 204 U. S. 426, 27 Sup. Ct. 350, 51 L ed. 553. See also Morrisdale C. Co. v. Pennsylvania R. Co. (1913)230 U.S. 304, 33 Sup. Ct. 938, 57 L. ed. 1494; Robinson V.Baltimore & O. R. Co. (1912) 222 U. S. 506, 32 Sup. Ct. 114, 56 L. ed. 288; Baltimore & O. R. Co. V. United States (1910) 215 U. S. 481, 30 Sup. Ct. 164, 54 L. ed. 292; Southern Ry. Co. v. Tift (1907) 206 U. S. 428, 27 Sup. Ct. 709, 51 L. ed. 1124. Compare Mitchell C. & C. Co. v. Pennsylvania R. Co. (1913) 230 U. S. 247, 33 Sup. Ct. 916, 57 L. ed. 1472; Pennsylvania R. Co. v. Interna- tional C. M. Co. (1913) 230 U. S. 184, 33 Sup. Ct. 893, 57 L. ed. 1446; Gal- veston, H. & S. A. Ry. Co. v. Wallace (1912) 223 U. S. 481, 32 Sup. Ct. 205, 56 L. ed. 516; Louisville & N. R. Co. v. Cook B. Co. (1912) 223 U S. 70, 32 Sup. Ct. 189, 56 L. ed. 355. INTERSTATE RATES. 13 state to regulate the charges for interstate transportation, yet in that event a state might enact laws affecting such commerce but not regulating it within the meaning of the Constitution.^^ Before the passage of the Interstate Commerce Act a state might have required its railroads to publish their interstate rates,^° and to carry goods at the published rates,^^ or to carry at the rates named in the bills of lading. 32 But since the passage of that act, which requires railroads to carry at the rates of which sched- ules have been filed with the Interstate Commerce Com- mission and given to the agents of the carriers,^^ a state 29 See Hall v. De Cuir (1877) 95 U. S. 485, 490, 24 L. ed. 547; Kidd v. Pearson (1888) 128 U. S. 1, 23, 9 Sup. Ct. 6, 11, 32 L. ed. 346; Railroad Co. V. Fuller (1873) 17 Wall. 560, 568, 21 L. ed. 710; Martin v. Pittsburg & L. E. R. Co. (1906) 203 U. S. 284, 27 Sup. Ct. 100, 51 L. ed. 284; Michi- gan C. R. Co. V. Vreeland (1913) 227 U. S. 59, 33 Sup. Ct. 192, 57 L.ed. 417; Adams Ex. Co. v. Croninger (1913) 226 U. S. 491, 33 Sup. Ct. 148, 57 L. ed. 314; Missouri P. Ry. Co. v. Castle (1912) 224 U. S. 541, 32 Sup. Ct. 606, 56 L. ed. 875; Southern Ry. Co. v. Reid (1912) 222 U. S. 424, 32 Sup. Ct. 140, 56 L. ed. 257; Martin v. West (1911) 222 U. S. 191, 32 Sup. Ct. 42, 56 L. ed. 159; Western U. T. Co. v. Crovo (1911) 220 U. S. 364, 31 Sup. Ct. 399, 55 L. ed. 498; Southern Ry. Co. v. King (1910) 217 U. S. 524, 30 Sup. Ct. 594, 54 L. ed. 868; Atlantic C. L. R. Co. v. Mazursky (1910) 216 U. S. 122, 30 Sup. Ct. 378, 54 L. ed. 411; Missouri P. Ry. Co. v. Larabee F. M. Co. (1909) 211 U. S. 612, 29 Sup. Ct. 214, 53 L. ed. 352; Mobile, J. & K. C. R. Co. V. Mississippi (1908) 210 U. S. 187, 28 Sup. Ct. 650, 52 L. ed. 1016. Compare Brown v. Houston (1885) 114 U. S. 622, 630, 5 Sup. Ct. 1091, 1095, 29 L. ed. 257; Welton v. Missouri (1875) 91 U. S. 275, 280, 23 Sup. Ct. 347; McNeill v. Southern Ry. Co. (1906) 202 U. S. 543, 26 Sup. Ct. 722, 50 L. ed. 1142; Louisville & N. R. Co. v. Hughes (1912) 201 Fed. 727, and see the extreme position taken in Northern P. Ry. Co. v. Washington (1912) 222 U. S. 370, 32 Sup. Ct. 160, 56 L. ed. 237.— On local rates which aflfect interstate rates indirectly see sec. 11, infra. 30 See Railroad Co. v. Fuller (1873) 17 Wall. 560, 21 L. ed. 710; Stone V. Farmers' L. & T. Co. (1886) 116 U. S. 307, 334, 6 Sup. Ct. 334, 346, 29 L. ed. 636. 31 Railroad Co. v. Fuller (1873) 17 Wall. 560, 21 L. ed. 710. 32 Little R. & F. S. Ry. Co. v. Hanniford (1887) 49 Ark. 291, 5 S. W. 294. See also Gulf, C. & S. F. Ry. Co. v. Hefley (1895) 158 U. S. 98, 15 Sup. Ct. 802, 39 L. ed. 910. 33 Illinois C. R. Co. v. Henderson E. Co. (1913) 226 U. S. 441, 33 Sup. 14 THE COMMERCE CLAUSE. law which limits the carrier to the rate named in the bill of lading cannot constitutionally be applied to interstate shipments.^^ And, in view of the provision of the federal law which forbids interstate transportation until rates have been filed and published, penalties imposed by state law for delay in transporting interstate freight cannot be Ct. 176, 57 L. ed. 290; Texas & P. Ry. Co. v. Cisco Oil Mill (1907) 204 U. S. 449, 27 Sup. Ct. 358, 51 L. ed. 562; Kansas C. S. Ry. Co. v. Albers Comn. Co. (1912) 223 U. S. 573, 32 Sup. Ct. G16, 56 L. ed. 556; United States v. Miller (1912) 223 U. S. 599, 32 Sup. Ct. 323, 56 L. ed. 568; United States V. Vacuum Oil Co. (1908) 158 Fed. 536; Act Feb. 4, 1887, c. 104, sec. 6, cl. 4, 24 U. S. Stat, at L. 381, re-enacted by Act Mar. 2, 1889, c. 382, sec. 1, cl. 4, 25 U. S. Stat, at L. 856, 3 Fed. Stats. An. 808, 828, 829. Compare Santa Fe, P. & P. Ry. Co. v. Grant Bros. C. Co. (1913) 228 U. S. 177, 188, 33 Sup. Ct. 474, 478, 57 L. ed. 787. 34 Gulf, C. & S. F. Ry. Co. v. Hefley ( 1895 ) 158 U. S. 98, 15 Sup. Ct. 802, 39 L. ed. 910. See also Louisville & N. R. Co. v. Mottley (1911) 219 U. S. 467, 31 Sup. Ct. 265, 55 L. ed. 297; Chicago, I. & L. Ry. Co. v. United States (1911) 219 U. S. 486, 31 Sup. Ct. 272, 55 L. ed. 305; St. Louis S. W. Ry. Co. V.Arkansas (1910) 217 U. S. 136, 30 Sup. Ct. 476, 54 L. ed. 698; Missouri, K. & T. Ry. Co. V. Harriman (1913) 227 U. S. 657, 33 Sup. Ct. 397, 57 L. ed. 690; Kansas C. S. Ry. Co. v. Carl, (1913) 227 U. S. 639, 33 Sup. Ct. 391, 57 L. ed. note 24, supra. A shipper cannot recover damages sustained by him through a misstatement by an agent of the railroad as to the rate which would be charged: Texas & P. Ry. Co. v. Mugg & Dryden (1906) 202 U. S. 242, 26 Sup. Ct. 628, 50 L. ed. 1011. — It was held by a state court in Chicago, St. L. & P. R. Co. V. Wolcott (1895) 141 Ind. 267, 39 N. E. 451, that a state may forbid its railroads to increase the charge for carrying goods, even to another state, after the goods have been tendered for transportation. See also Stewart v. Comer (1897) 100 Ga. 754, 28 S. E. 461. Compare Strough v. New Y. C. & H. R. R. Co. (1904) 92 N. Y. App. Div. 584, 87 N. Y. Supp. 30, affirmed (1905) 181 N. Y. 533, 73 N. E. 1133; Southern Ex. Co. v. Gold- berg (1903) 101 Va. 619, 44 S. E. 893, 62 L. R. A. 669. In the Indiana case the charges were increased during a delay in furnishing cars to the plaintiff which was due to discrimination against him. In the New York case they were increased during a delay which was not due to discrimination. The Indiana court seems to have taken a strong position, but it appears, how- over, that the Supreme Court would not sustain such a decision at the present day: see Southern Ry. Co. v. Reid & Beam (1912) 222 U. S. 444, 32 Sup. Ct. 145, 56 L. ed. 263, and cases there cited, wherein an extreme position is taken. LOCAL RATES. 15 enforced where the delay was caused by the fact that the rates involved had not yet been fixed and published.^^ LOCAL RATES. What are local rates? 10. As already stated, the Interstate Commerce Act applies when a series of railroads acting under a joint arrangement carries between points in different states,^^ and even though the final carrier of the series is a rail- road company whose line is situated entirely within the state of destination the act applies to that carrier.^'^ On the other hand, where the transportation by railroad^* 35 Southern Ry. Co. v. Reid (1912) 222 U. S. 424, 32 Sup. Ct. 140, 56 L. ed. 257. See also Southern Ry. Co. v. Reid & Beam (1912) 222 U. S. 444, 32 Sup. Ct. 145, 56 L. ed. 263 ; Southern Ry. Co. v. Burlington L. Co. (1912) 225 U. S. 99, 32 Sup. Ct. 657, 56 L. ed. 1001.— In Chicago, R. L & P. Ry. Co. V. Hardwick F. E. Co. (1913) 226 U. S. 426, 33 Sup. Ct. 174, 57 L. ed. 284; the court declared unconstitutional a state law which penalized delay in furnishing cars; and in St. Louis, I. M. & S. Ry. Co. v. Edwards ( 1913) 227 U. S. 265, 33 Sup. Ct. 262, 57 L. ed. 506; Yazoo & M. V. R. Co. v. Greenwood G. Co. (1913) 227 U. S. 1, 33 Sup. Ct. 213, 57 L. ed. 389, it de- clared unconstitutional state regulations which penalized delay in deliver- ing cars to consignees. See also Hampton v. St. Louis, I. M. & S. Ry. Co. (1913) 227 U. S. 456, 33 Sup. Ct. 263, 57 L. ed. 596. 36 See p. 9, supra. 37 See authorities cited in note 20, supra, and note 70, infra. In Cincin- nati, N. O. & T. P. Ry. Co. v. Interstate Com. Comn. (1896) 162 U. S. 184, 16 Sup. Ct. 700, 40 L. ed. 935, goods were carried under through bills by a series of railroads of which the final one was a local road which received the local rate for its part of the shorter haul and a lower sum as its share of the earnings for the longer haul. The court decided that the final carrier did not escape the provisions of the act by requesting preceding carriers not to name rates for its part of the transportation except when the goods were shipped to designated points, which did not include the terminus of the shorter haul. "Having elected to enter into the carriage of interstate freights and thus subjected itself to the control of the Commission, it would not be competent for the company to limit that control, in respect to foreign traffic, to certain points on its road and exclude other points:" 162 U. S. 192, 16 Sup. Ct. 703, 40 L. ed. 938. 38 As to the power of Congress to regulate charges for carrying between 16 THE COMMERCE CLAUSE. is entirely within a state, and is in no way connected with any arrangement for interstate transportation, tlien, even though the railroad also engages in interstate transporta- tion,^^ the charge for the strictly local transportation is within the control of the state and is not within the con- trol of Congress.^" two places within the same state upon a waterway which is entirely within the state but which connects with the ocean, see p. 42, infra. 39 A state may control the charges for local transportation by an interstate railroad: Stone v. Farmers' L. & T. Co. (1886) 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. ed. 630; Stone v. Illinois C. R. Co. (1886) 116 U. S. 347, 6 Sup. Ct. 348, 388, 1191, 29 L. ed. 650, overruling Illinois C. R. Co. V. Stone (1884) 20 Fed. 468, 475; Farmers' L. & T. Co. v. Stone (1884) 20 Fed. 270, upon this point. See also Smyth v. Ames (1898) 169 U. S. 466, 521, 522, 18 Sup. Ct. 418, 424, 42 L. ed. 819; Missouri P. Ry. Co. v. Kansas (1910) 216 U. S. 262, 283, 30 Sup. Ct. 330, 337, 54 L. ed. 472; Allen v. Pullman's P. C. Co. (1903) 191 U. S. 171, 24 Sup. Ct. 39, 48 L. ed. 134; Erie R. Co. v. Purdy (1902) 185 U. S. 148, 22 Sup. Ct. 605, 46 L. ed. 847; Chesapeake & 0. Ry. Co. v. Kentucky (1900) 179 U. S. 388, 21 Sup. Ct. 101, 45 L. ed. 243; Sands v. Manistee R. I. Co. (1887) 123 U. S. 288, 8 Sup. Ct. 113, 31 L. ed. 149; 6 Mich. L. Rev. 158. Compare Norfolk & W. R. Co. V. Pennsylvania (1890) 136 U. S. 114, 119, 10 Sup. Ct. 958, 960, 34 L. ed. 394; Western U. T. Co. v. Kansas (1910) 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. v. Kansas (1910) 216 U. S. 56, 30 Sup. Ct. 232, 54 L. ed. 378; Ludwig v. Western U. T. Co. (1910) 216 U. S. 146, 30 Sup. Ct. 280, 54 L. ed. 423. In the four cases last cited there were dissents. 40 See United States Constitution, Tenth Amendment; White, J., in Em- ployers' Liability Cases — Howard v. Illinois C. R. Co. (1908) 207 U. S. 463, 464, 493, 502, 28 Sup. Ct. 141, 143, 147, 52 L. ed. 297; Illinois C. R. Co. v. McKendree (1906) 203 U. S. 514, 27 Sup. Ct. 153, 51 L. ed. 298; Illinois C. R. Co. v. Edwards (1906) 203 U. S. 531, 27 Sup. Ct. 159, 51 L. ed. 305; Allen V. Pullman's P. C. Co. (1903) 191 U. S. 171, 24 Sup. Ct. 39, 48 L. ed. 134; Addyston P. & S. Co. v. United States (1899) 175 U. S. 211, 247, 20 Sup. Ct. 96, 109, 44 L. ed. 130; Kansas v. Colorado (1907) 206 U. S. 46, 89, 90, 27 Sup. Ct. 655, 664, 51 L. ed. 950; Sands v. Manistee R. L Co. (1887) 123 U. S. 288, 8 Sup. Ct. 113, 31 L. ed. 149; Wabash, St. L. & P. Ry. Co. v. Illinois (1886) 118 U. S. 557, 564, 7 Sup. Ct. 4, 7, 30 L. ed. 244; Telegraph Co. V. Texas (1881) 105 U. S. 460, 466, 26 L. ed. 1067; Gibbons v. Ogden (1824) 9 Wheat. 1, 194, 195, 6 L. ed. 23; Cooke, Commerce Clause, p. 42; St. Louis & S. F. R. Co. v. Hadley (1909) 168 Fed. 317; and ca^es cited in note 39, supra. Compare Interstate Com. Comn. v. Goodrich T. Co. (1912) 224 U. S. 194, 214, 215, 32 Sup. Ct. 436, 440, 441, 50 L. ed. 729; Second Employers' Liability Cases — Mondou v. New Y., N. H. & H. R. Co. LOCAL RATES. 17 Local rates which aifect interstate rates indirectly. 11. State regulations of charges for transportation which is strictly local are valid even when they have an indirect effect upon interstate rates. A long and short haul statute where both distances are within the state does not affect interstate commerce so directly as to be unconstitutional.^^ The court said, "It may be that the enforcement of the state regulation forbidding discrimi- nation in rates in the case of articles of a like kind car- ried for different distances over the same line may some- what affect commerce generally; but we have frequently held that such a result is too remote and indirect to be regarded as an interference with interstate commerce; (1912) 223 U. S. 1, 32 Sup. Ct. 169, 56 L. ed. 327; Baltimore & O. R. Co. v. Interstate Com. Comn. (1911) 221 U. S. 612, 31 Sup. Ct. 621, 55 L. ed. 878; 9 Col. L. Rev. 38; 21 Harv. L. Rev. at 48; sec. 25, infra. 41 Louisville & N. R. Co. v. Kentucky (1902) 183 U. S. 503, 22 Sup. Ct. 95, 46 L. ed. 298. See also Louisville & N. R. Co. v. Kentucky (1896) 161 U. S. 677, 701, 16 Sup. Ct. 714, 723, 40 L. ed. 849, for a further discussion of the subject. And see Henderson B. Co. v. Kentucky (1897) 166 U. S. 150, 17 Sup. Ct. 532, 41 L. ed. 953, where an interstate bridge company was taxed on the portion of its intangible property which was within the state. "Clearly the tax was not a tax on the interstate business carried on over or by means of the bridge, because the bridge company did not transact such business. That business was carried on by the persons and corporations which paid the bridge company tolls for the privilege of using the bridge. The fact that the tax in question was to some extent affected by the amount of the tolls received, and therefore might be supposed to increase the rate of tolls, is too remote and incidental to make it a tax on the business transacted. This very question was decided in [New Y., L. E. & W. R. Co. v. Pennsylvania (1895) 158 U. S. 431, 439, 15 Sup. Ct. 89G, 899, 39 L. ed. 1043] where it was said: 'It is argued that the imposition of a tax on tolls might lead to increas- ing them in an effort to throw their burden on the carrying company. Such a result is merely conjectural, and, at all events, too remote and indirect to be an interference with interstate commerce. The interference with the commercial power must be direct, and not the mere incidental effect of the requirement of the usual proportional contribution to public maintenance.' The only franchises treated here as the subject of taxation were those granted by the state of Kentucky:" 166 U. S. 153, 17 Sup. Ct. 533, 41 L. ed, 954. Four justices dissented. 18 THE COMMERCE CLAUSE. that the interference with the commercial power of the general government to be unlawful must be direct, and not the merely incidental effect of enforcing the police powers of a state. ' ' "^^ By regulating rates between points which are entirely within its limits a state may affect interstate rates very materially even where the effect is only indirect. It may name a local rate to a point near the border of the state which added to the rate from that point to an interstate point will be so much less than the through rate from the place of original shipment to the place of final desti- nation that, assuming that shippers or passengers may interrupt through interstate transportation in order to secure the local rates for a portion of the distance,'*^ the railroads will in practice be compelled to lower the rates for through interstate transportation. And yet in such cases the state may regulate the local rates, at least in the absence of federal action.^ ^ Or, to give another illustra- tion, there may be two railroads which carry between two towns of the same state, one of which roads is entirely 4ii 183 U. S. at 518, 519, 22 Sup. Ct. at 102, 46 L. ed. at 306. See also Ames V. Union P. Ry. Co. (1894) 64 Fed. 165, 172. 43 But on this point see sec. 13 et seq., infra. 44 Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 33 Sup. Ct. 729, 57 L. ed. 1511; Allen v. St. Louis, I. M. & S. Ry. Co. (1913) 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. ed. 1625; Southern P. Co. v. Campbell (1913) 230 U. S. 537, 33 Sup. Ct. 1027, 57 L. ed. 1610; Oregon R. & N. Co. V. Campbell (1913) 230 U. S. 525, 33 Sup. Ct. 1026, 57 L. ed. 1604; Chesapeake & O. Ry. Co. v. Conley (1913) 230 U. S. 513, 33 Sup. Ct. 985, 57 L. ed. 1597; Missouri Rate Cases— Knott v. Chicago, B. & Q. R. Co. (1913) 230 U. S. 474, 33 Sup. Ct. 975, 57 L. ed. 1571. See also Louisville & N. R. Co. V. Siler (1911) 186 Fed. 176; Oregon R. & N. Co. v. Campbell (1909) 173 Fed. 957; Perkins v. Northern P. Ry. Co. (1907) 155 Fed. 445, 453; North- ern P. Ry. Co. V. Lee (1912) 199 Fed. 621; In re Arkansas Rate Cases (1911) 187 Fed. 290; Woodside v. Tonopah & G. R. Co. (1911) 184 Fed. 358. Compare Shepard v. Northern P. Ry. Co. (1911) 184 Fed. 765; Rey- nolds, Railway Valuation — Is it a Panacea? 8 Col. L. Rev. 265. LOCAL RATES. 19 within the state and the other of which passes outside of the state for a portion of the distance. And in this case also a federal court has held that while the state might not limit the charges of the latter road directly ^^ it may limit directly the charges of the former road although the interstate road is thereupon obliged in order to compete for the traffic to make similar rates for its own transporta- tion between those two points.^® Local rates which affect interstate rates directly. 12. Where, however, state regulations of intrastate charges directly affect interstate rates they are unconsti- tutional. Thus 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 commerce ;^'^ and it may not require 45 See sec. 7, supra. 46 St. Louis & S. F. E. Co. v. Hadley (1909) 168 Fed. 317, 340. See also Louisville & N. R. Co. v. Interstate Com. Comn. (1910) 184 Fed. 118, 127; Houston & T. C. R. Co. v. Storey (1906) 149 Fed. 499. 47 Louisville & N. R. Co. v. Eubank (1902) 184 U. S. 27, 22 Sup. Ct. 277, 46 L. ed. 416. The company was commanded to cl^ange the rate for either the local haul 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 inter- state earnings the court should have held that the regulation did not vio- late the commerce clause, for in that case the company would have retained its interstate, and lowered its local, rate, which was probably the main re- sult 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 position by referring to a hypothetical case in which local rates are fixed by state statute and then saying, "Congress does not in- terfere with local rates by adopting their sum as the interstate rate." 20 THE COMilERCE CLAUSE. a railroad to carry local traffic at inadequate rates on the ground that it is compensated by the profitableness of its interstate business.*^ But where property is used for both local and interstate transportation a railroad is en- titled to earn from local transportation an income upon 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 inconsistent 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 affect 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. (See Kansas v. Colorado (1907) 206 U. S. 46, 89, 90, 27 Sup. Ct. 655, 664, 51 L. ed. 950; and note 40, supra.) 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 interstate 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 rates between points wholly within the state, by the rates which obtain between points outside 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 refer- ence for it for the establishment of any other test of constitutionality. — With the discussion in this note compare dicta in Minnesota Rate Cases —Simpson v. Shepard (1913) 230 U. S. 352, 33 Sup. Ct. 729, 57 L. ed. 1511. 48 Smyth V. Ames (1898) 169 U. S. 466, 541, 18 Sup. Ct. 418, 432, 42 L. ed. 819; Northern P. Ry. Co. v. Keyes (1898) 91 Fed. 47; Morgan's L. & T. R. Co. V. Railroad Comn. of La. (1911) 127 La. 636, 665, 53 So. 890, 000; Seaboard A. L. Ry. Co. v. Railroad Comn. of Ala. (1907) 155 Fed. 792, 806; State V. Seaboard A. L. Ry. (1904) 48 Fla. 129, 37 So. 314; and see Minne- sota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 435, 33 Sup. Ct. 729, 755, 57 L. ed. 1511. Compare Grand R. & I. Ry. Co. v. Osborn ( 1904) 193 U. S. 17, 24 Sup. Ct. 310, 48 L. ed. 598, where the court upheld regulations based upon the entire gross earnings per mile within the state. In that case the company was estopped from denying the adequacy of the rates. In Commissioner of Railroads v. Wabash R. Co. (1901) 126 Mich. 113, 85 N. W. 466, (1900) 123 Mich. 669, 82 N. W. 526, which arose under the same statute, it was not contended that the local rates so fixed were inadequate when considered by themselves. Consider also Washington S. Ry. Co. v. Commonwealth (1911) 112 Va. 515, 520, 71 S. E. 539, 541. SEPARATE INTKASTATE TEANSPORTATION. 21 only that proportion of the whole value of the property within the state which the local traffic bears to the inter- state traffic.^^ SEPARATE INTRASTATE TRANSPORTATION OF PERSONS OR GOODS COMING FROM OR DESTINED TO ANOTHER STATE. The problem. 13. But what mle of law governs where persons or goods are carried entirely within one state under a con- tract which relates only to that transportation but before or after that local transportation they are carried inter- state? Is the charge for such local transportation subject only to state regulation, as in the case of a charge for transportation which is strictly local? Or is it subject only to federal control, as in the case of a rate which is strictly interstate? Or is it in a class by itself, subject to state control in the absence of federal action but also sub- ject to paramount action by Congress? Or is the charge subject to the control of one government if the transpor- tation is made under some circumstances but to the con- trol of another government if other circumstances exist: in other words, when a carrier or a traveller or a shipper 49 See Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 435, 33 Sup. Ct. 729, 755, 57 L. ed. 1511 ; State v. United States Ex. Co. ( 1900) 81 Minn. 87, 91, 83 N. W. 465, 460, 50 L. R. A. 667, 669; State v. Atlantic C. L. R. Co. (1904) 48 Fla. 146, 37 So. 657, affirmed in Atlantic C. L. R. Co. V. Florida (1906) 203 U. S. 256, 27 Sup. Ct. 108, 51 L. ed. 174; State v. Seaboard A. L. Ry. (1904) 48 Fla. 129, 144, 145, 37 So. 314, 320, affirmed in Seaboard A. L. Ry. v. Florida (1906) 203 U. S. 261, 27 Sup. Ct. 109, 51 L. ed. 175; and sec. 165, infra. Compare Washington S. Ry. Co. v. Common- wealth (1911) 112 Va. 515, 520, 71 S. E. 539, 541. There are expressions in Smyth v. Ames (1808) 169 U. S. 466, 541, 18 Sup. Ct. 418, 432, 42 L. ed. 819, referred to in Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 267, 22 Sup. Ct. 900, 904, 46 L. ed. 1151, which, standing alone, seem inconsistent with this position, but if they are read in their proper connec- tion the inconsistency disappears. 22 THE COMMERCE CLAUSE. interrupts through transportation because of a desire to secure local rates for a part of the distance, is the power to regulate the rates within the state different from that which would exist if there were other reasons for making the local transportation under a separate arrangement? These questions are obviously of great importance, for if either the carrier or its patron has a constitutional right to make a break in through transportation simply in order to secure local rates for part of the distance Con- gress is without power to regulate some charges for trans- portation which are in substance interstate ;^° and, on the other hand, if, where goods are produced in one state and consumed in another, every movement of those goods from the moment they are produced until they are finally con- sumed is to be regarded as a part of interstate transpor- tation. Congress has power over a large amount of trans- portation which is in substance strictly local.^^ The test. 14. In order to answer these questions it is necessary to 50 Compare the provision of the Interstate Commerce Act, quoted iu note 68, infra, in which railroads are forbidden to interrupt through interstate transportation for any such purpose. 51 Goods are in the course of interstate transportation "'when actually started in the course of transportation to another state, or delivered to a carrier for such transportation. There must be a point of time when they cease to be governed exclusively by the domestic law and begin to be gov- erned and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement for transportation from the state of their origin to that of their destination. When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepot for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the state to the state of their destination, or have started on their ultimate passage to that state:" Coe V. Errol (1886) 116 U. S. 517, 525, 6 Sup. Ct. 475, 477, 29 L. ed. 715. SEPARATE INTRASTATE TRANSPORTATION. 23 determine whether the two acts of transportation are in reality separate transactions. If they are entirely separ- ate the part of the transportation which is between points within the state is subject only to state control; but if they are not in reality separate transactions both acts are subject to federal control, although in some instances at least they must be regarded as subject to state control unless and until Congress has legislated. Of course, the main difficulty is in determining whether the transactions are to be regarded as separate. Tax and original package cases. 15. Let us first note by way of illustration two lines of cases which do not deal with rate regulation. A state has no power to tax property within its borders which is actually in transit to another state; ^^ but, on the other hand, it may tax goods within its territory which are not in the course of continuous interstate transporta- tion, even though they have already been transported for some distance and though it is intended that they shall be transported ultimately out of the state.^^ 52 See, e. g., Kelley v. Rhoads (1903) 188 U. S. 1, 7, 23 Sup. Ct. 259, 262, 47 L. ed. 359. 53 In Susquehanna C. Co. v. South Amboy (1913) 228 U. S. 665, 33 Sup. Ct. 712, 67 L. ed. 1015, it was held that a state may tax coal brought from another state and stored, while awaiting orders or means of transportation for orders already received, for further shipment to ports in other states or countries. In Bacon v. Illinois (1913) 227 U. S. 504, 515, 516, 33 Sup. Ct. 299, 302, 303, 57 L. ed. 615, it was held that the state might tax gi-ain Avhich the purchaser had placed in an elevator for inspection, grading, etc. The fact that the owner had the privilege of reshipping under the original contracts, and actually intended to forward the grain, did not render the grain immune from local taxation until it had been actually committed to the carriers for transportation. In General Oil Co. v. Crain (1908) 209 U. S. 211, 28 Sup. Ct. 475, 52 L, ed. 754, it was held that a law of Tennessee which provided for the inspection of oil might be enforced as to oil which had been brought from another state and which was temporarily stored in 24 THE COMMERCE CLAUSE. So also, where goods have been brought from another state the state into which they have been brought may not, in the absence of federal authorization,^^ forbid their sale in the original packages ;^'^ yet if bulk has been broken or ownership of the goods has been transferred after the goods have entered the state, those goods are subject to the regulations which the state into which they have been brought may make concerning their sale in that state.^<^ Tennessee for convenience in distribution, but which it was intended should ultimately be loaded into other receptacles and shipped to points outside the state. Have these cases any bearing upon the question whether when there is milling in transit the total transportation is in reality divided into two separate transactions? In Coe v. Errol (1886) 116 U. S. 517, 6 Sup. Ct. 475, 29 L. ed. 715, the court sustained a local tax upon logs which had been cut at one place in the state and hauled to another place therein, whence the owner intended ultimately to float them to another state, upon the ground that the logs had not begun "their final movement for transpor- tation from the state of their origin to that of their destination." See 116 U. S. 525, 527, 528, 6 Sup. Ct. 477, 478, 479, 29 L. ed. 718, 719, and note 51, supra. That case was followed in Diamond M. Co. v. Ontonagon (1903) 188 U. S. 82, 23 Sup. Ct. 266, 47 L. ed. 394. In both cases the interruption in transportation was intentionally a prolonged one. On the question whether every interruption in transportation would be similarly treated see Bacon v. Illinois (1913) 227 U. S. 504, 515, 516, 33 Sup. Ct. 299, 302, 303, 57 L. ed. 615; General Oil Co. v. Crain (1908) 209 U. S. 211, 228, 230, 28 Sup. Ct. 475, 481, 482, 52 L. ed. 754, and cases cited in that opinion; Swift & Co. v. United States (1905) 196 U. S. 375, 398, 399, 25 Sup. Ct. 276, 280, 49 L. ed. 518; Johnson v. Southern P. Co. (1904) 196 U. S. 1, 22, 25 Sup. Ct. 158, 163, 49 L. ed. 872; Kelley v. Rhoads (1903) 188 U. S. 1, 7, 23 Sup. Ct. 259, 262, 47 L. ed. 359; Blackstone v. Miller (1903) 188 U. S. 189, 203, 23 Sup. Ct. 277, 47 L. ed. 439; Gulf, C. & S. F. Ry. Co. v. Texas (1907) 204 U. S. 403, 413, 414, 27 Sup. Ct. 360, 363, 51 L. ed. 540; Delaware & H. C. Co. v. Commonwealth (1888) 1 Mona. (Pa.) 36, 42, 17 Atl. 175, 178; Rosenbaum G. Co. v. Chicago, R. I. & T. Ry. Co. (1903) 130 Fed. 46, 48. 54 Yet see In re Rahrer (1891) 140 U. S. 545, 11 Sup. Ct. 865, 35 L. ed. 572. 55Leisy v. Hardin (1890) 135 U. S. 100, 10 Sup. Ct. 681, 34 L. ed. 128. 56 Cook V. Marshall County (1905) 196 U. S. 261, 25 Sup. Ct. 233, 49 L. ed. 471; Austin v. Tennessee (1900) 179 U. S. 343, 21 Sup. Ct. 132, 45 L. ed. 225; May v. New Orleans (1900) 178 U. S. 496, 20 Sup. Ct. 976, 44 L. SEPAEATE INTRASTATE TRANSPORTATION. 25 Some rates under local bills subject to federal control. 16. The court has, however, held that the Interstate Commerce Act is violated where a terminal company which is part of a railroad and steamship system gives special facilities to a shipper in the same state who ships to it under a local bill of lading goods intended ultimately for foreign transportation by another part of that sys- tem ;^'^ that where goods are carried under a local bill of lading between two points within a state and then placed on board a ship for transportation out of the state the transportation within the state must be regarded as part of interstate transportation and therefore not subject to state control, even though at the time when the goods are tendered for transportation no decision has been reached as to their ultimate destination;^^ and that a state may not regulate the charges for carrying between two points within its borders under a local bill of lading lumber which is from the beginning of the transportation destined for export ; and this is true even though the further trans- ed. 1165. Compare McDermott v. Wisconsin (1913) 228 U. S. 115, 33 Sup. Ct. 431, 57 L. ed. 754; Adams Ex. Co. v. Kentucky (1907) 206 U. S. 129, 27 Sup. Ct. 606, 51 L. ed. 987; Rearick v. Pennsylvania (1906) 203 U. S. 507, 27 Sup. Ct. 159, 51 L. ed. 295; Heyman v. Southern Ry. Co. (1906) 202 U. S. 270, 27 Sup. Ct. 104, 51 L. ed. 178; Scliollenberger v. Pennsyl- vania (1898) 171 U. S. 1, 18 Sup. Ct. 757, 43 L. ed. 49; Collins v. New Hampshire (1898) 171 U. S. 30, 18 Sup. Ct. 768, 43 L. ed. 60. For further discussion of the original package question see Cooke, The Commerce Clause, pp. 27, 161, 253; Howland, The Police Power and Interstate Com- merce, 4 Harv. L. Rev. 221; Trickett, The Original Package Ineptitude, 6 Col. L. Rev. 161; Reeder, Chief Justice Fuller, 59 U. of Pa. L. Rev. 4-7; note 64 infra; The Original Package Question Resurrected Under the Pure Food Law, 73 Cent. L. J. 165. — On the bearing of these eases on rate regulation see, however, opinion in Gulf, C. & S. F. Ry. Co. v. Texas (1907) 204 U. S. 403, 412, 27 Sup. Ct. 360, 362, 51 L. ed. 540. 5T Southern P. T. Co. v. Interstate Com. Comn. (1911) 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310. 58 Railroad Comn. of Ohio v. Worthington (1912) 225 U. S. 101, 32 Sup. Ct. 653, 56 L. ed. 1004. 26 THE COMMERCE CLAUSE. portation is by another carrier and there is some neces- sary delay at the time of transshipment.^^ This series of cases seems to furnish a sufficient answer to the suggestion which was made in one of the earlier cases ®^ that if a portion of the transportation were by a S9 Texas & N. O. R. Co. v. Sabine T. Co. (1913) 227 U. S. Ill, 33 Sup. Ct. 229, 57 L. ed. 442.— See also Railroad Comn. of La. v. Texas & P. Ry. Co. (1913) 229 U. S. 336, 33 Sup. Ct. 837, 67 L. ed. 1215. 60 Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Com. Comn. (1896) 162 U. S. 184, 192, 16 Sup. Ct. 700, 703, 40 L. ed. 935. There is a casual sugges- tion in Texas & P. Ry. Co. v. Interstate Com. Comn. (1896) 162 U. S. 197, 212, 16 Sup. Ct. 666, 672, 40 L. ed. 940, referred to with approval in / r- mour P. Co. v. United States (1908) 209 U. S. 56, 78, 28 Sup. Ct. 428, 4; ', 52 L. ed. 681, that the Interstate Commerce Act as it then stood had in vie .v the whole field of commerce excepting commerce entirely within a state. (On the change in the punctuation of the act by the amendment of 1906, see United States v. Colorado & N. W. R. Co. (1907) 157 Fed. 321, 327, 15 L. R. A. N. S. 167, 173.) Yet federal courts held that the original act applied to a local railroad, of which the control or management was not in common with that of a connecting carrier to points outside the state, only when it carried under an arrangement for continuous interstate or foreign transportation: United States v. Chicago, K. & S. R. Co. (1897) 81 Fed. 783 ; Interstate Com. Comn. v. Bellaire, Z. & C. Ry. Co. ( 1897 ) 77 Fed. 942 ; Ex parte Koehler (1887) 30 Fed. 867; New J. F. E. v. Central R. Co. (1888) 2 I. C. C. 84. See also United States v. Wood (1906) 145 Fed. 405, 411; United States v. Geddes (1904) 131 Fed. 452 (1903) 180 Fed. 480. Compare United States v. Colorado & N. W. R. Co. (1907) 157 Fed. 321, 15 L. R. A. N. S. 167; Corcoran v. Louisville & N. R. Co. (1907) 125 Ky. 634, 101 S. W. 1185. There may, however, be an arrangement for interstate transportation although goods are not carried under through bills: United States V. New Y. C. & H. R. R. Co. (1907) 153 Fed. 630; United States v. Seaboard Ry. Co. (1897) 82 Fed. 563. Compare Heiserman v. Burlington, C. R. & N. Ry. Co. (1884) 63 Iowa, 732, 18 N. W. 903. And a local road which grants rates lower than its local rates on interstate freight received from one connecting line must, by virtue of the Interstate Commerce Act, grant the same lower rates on freight brought to it from points outside the state by another connecting line: Augusta S. R. Co. v. Wrightsville & T. R. Co. (1890) 74 Fed. 522. In accordance with this case it would probably be held that a local road which enters into arrangements for continuous interstate transportation for the benefit of some shippers must enter into similar arrangements for the benefit of all other shippers to the same destination. The decision is sound if analogous to that in Cincinnati, N. 0. & T. P. Ry. Co. V. Interstate Com. Comn., cited in note 37, supra; see also Southern P. T. Co. v. Interstate Com. Comn., cited in note 57, supra. SEPARATE INTRASTATE TRANSPORTATION. 27 railroad which was entirely within one state and which did not participate in any agreements for through inter- Compare Kentucky & I. B. Co. v. Louisville & N. R. Co. (1889) 37 Fed. 567; Gamble-Robinson Comn. Co. v. Chicago & N. W. Ry. Co. (1909) 168 Fed. 161, 21 L. R. A. N. S. 982; Louisville & N. R. Co. v. West C.N. S. Co. (1905) 198 U. S. 483, 25 Sup. Ct. 745, 49 L. ed. 1135.— The above decisions relate to the Interstate Commerce Act. But it is important to know also the extent of the federal power. In Pacific C. Ry. Co. v. United States (1909) 173 Fed. 448; United States v. Colorado & N. W. R. Co. (1907) 157 Fed. 321, 15 L. R. A. N. S. 167; United States v. Colorado & N. W. R. Co. (1907) 157 Fed. 342, it is held that the federal safety appliance act applies to a railroad which is entirely within one state and which does not participate in con- tracts for through interstate transportation; while the contrary position is taken in United States v. Geddes (1904) 131 Fed. 452 (1903) 180 Fed. 480. Compare Southern Ry. Co. v. United States (1911) 222 U. S. 20, 32 Sup. Ct. 2, 56 L. ed. 72, discussed in sec. 25, infra. — In The Daniel Ball (1870) 10 Wall. 557, 19 L. ed. 999, a federal law requiring the inspection and licensing of vessels was applied to a vessel which carried goods coming from and goods destined to places in other states, but which did not itself leave the state nor run in connection with or continuation of any line of vessels or railway making an interstate trip. The court said that "when- ever a commodity has begun to move as an article of trade from one state to another, commerce in that commodity between the states has commenced. The fact that several diflferent and independent agencies are employed in transporting the commodity, some acting entirely in one state, and some acting through two or more states, does in no respect affect the character of the transaction. To the extent in which each agency acts in that trans- action, it is subject to the regulation of Congress." The court expressly disclaimed any intention of laying down a rule concerning land transporta- tion. See also Railroad Co. v. Maryland (1874) 21 Wall. 456, 22 L. ed. 678; Pullman's P. C. Co. v. Pennsylvania (1891) 141 U. S. 18, 23, 32, 11 Sup. Ct. 876, 878, 881, 35 L. ed. 613. Yet it is doubtful whether a diflferent rule would be applied to railroads simply because they transport on land. Norfolk & W. R. Co. v. Pennsylvania (1890) 136 U. S. 114, 119, 10 Sup. Ct. 958, 960, 34 L. ed. 394, was based upon The Daniel Ball. The railroad, however, had made traffic contracts with other roads. See also Diamond M. Co. V. Ontonagon (1903) 188 U. S. 82, 92, 23 Sup. Ct. 266, 270, 47 L. ed. 394, and references in Wabash, St. L. & P. Ry. Co. v. Illinois (1886) 118 U. S. 557, 7 Sup. Ct. 4, 30 L. ed. 244, to Hall v. De Cuir (1877) 95 U. S. 485, 24 L. ed. 547.— With The Daniel Ball compare Veazie v. Moor (1852) 14 How. 568, 14 L. ed. 545, which is cited in Covington & C. B. Co. v. Ken- tucky (1894) 154 U. S. 204, 210, 14 Sup. Ct. 1087, 1089, 38 L. ed. 962, as authority for the proposition that the states have sole power to regulate the navigation of waters which are entirely within one state and do not form part of a continuous water highway to a place beyond its limits, "not- 28 THE COIVIMERCE CLAUSE. state transportation whatever, that portion of the trans- portation might not be subject to federal control. Gulf, C. & S. F. Ry. Co. v. Texas. 17. So also the above cases, while in no wise calling into question the actual decision in the leading case of Gulf, C. & S. F. Ey. Co. V. Texas,^^ show the weakness of the test of constitutionality which was relied upon by the court at that time. In that case a dealer who had bought grain which was not then within the state, sold grain to be delivered at an- other point within the same state, and soon afterwards shipped the grain which he had in the meanwhile received from the other state, for that purpose securing a new bill of lading. The court held that he was entitled to trans- portation at the local rate. It noted that he might have performed his obligation by supplying other grain, but it laid stress upon the fact that the interstate transporta- tion and the intrastate transportation were under separ- ate contracts with the railroads, and declared that "In many cases it would work the greatest injustice to a car- rier if it could not rely on the contract of shipment it has made, know whether it was bound to obey the state or federal law, or, obeying the former, find itself mulcted in penalties for not obeying the law of the other jurisdiction, simply because the shipper intended a transportation beyond that specified in the contract . . . The carrier ought to be able to depend upon the contract which it •withstanding the fact that the goods or passengers carried or travelling over such highway between points in the same state may ultimately be destined for other states, and, to a slight extent, state regulation may be said to interfere with interstate commerce." See also comment on The Daniel Ball in Watkins, Shippers and Carriers of Interstate Freight, p. 88. 61 (1907) 204 U. S. 403, 27 Sup. Ct. 360, 51 L. ed. 540. SEPARATE INTRASTATE TRANSPORTATION. 29 has made, and must conform to the liability imposed by that contract. ' ' ^^ This opinion was prepared by a justice whose views as to the bearing of a contract between carrier and shipper upon interstate rates were not accepted by a majority of the court in a case which was decided only a year later.® ^ Is the existence of separate contracts conclusive? 18. Indeed, considering the question sim.ply upon prin- ciple, it seems clear that while the existence of two separ- ate contracts for the two portions of the total transporta- tion tends to show that there are two separate transac- tions, it does not show that fact conclusively,^^ for the 62 204 U. S. at 414, 27 Sup. Ct. at 363, 51 L. ed. 547.— Grain had been shipped from South Dakota to Texarkana, Texas, and there delivered by the consignee to A, by surrendering to him the bill of lading. A reshipped the grain to himself at Goldthwaite, Texas, where he had contracted to deliver grain to B. The reshipment was made by surrendering the bill of lading to Texarkana and receiving in its place a new bill of lading from Texarkana to Goldthwaite. If the rate from Texarkana to Goldthwaite could be treated as part of an interstate rate the charge for transportation would be higher than if the company were limited to the rate fixed by the state commission. The company charged the higher rate and was fined by a state court for extortion, which judgment was sustained by the highest court of the state and by the Supreme Court of the United States. It may be noted, although the Supreme Court gave no weight to these facts, that neither the original consignee nor A had any warehouse at Texarkana, that the grain was not unloaded at that point, and that it remained there only five days. Compare references to reasons for this decision as given in Texas & N. O. R. Co. v. Sabine T. Co. (1913) 227 U. S. Ill, 33 Sup. Ct. 229, 57 L. ed. 442. 63 Armour P. Co. v. United States (1908) 209 U. S. 56, 28 Sup. Ct. 428, 52 L. ed. 681, cited in note 65, infra. 64 It may furnish a convenient working test under ordinary circum- stances, but not an absolute test. Perhaps it may be regarded as somewhat like the original package rule for determining whether or not articles which have been brought into a state have become subject to the jurisdic- tion of that state, a convenient working rule, but one which is not always strictly applied: see Willoughby on the Constitution, pp. 644, 650; Pren- tice and Egan, The Commerce Clause, 70; Trickett, The Original Pack- 30 THE COMMERCE CLAUSE. making of separate contracts may be the mere observance of a formality in the effort to destroy the federal jurisdic- tion over part of what would otherwise be interstate transportation throughout. And it is not clear that the federal jurisdiction may be destroyed in that manner. The rate which a shipper must pay for transportation does not depend simply upon agreement with the carrier: even a definite contract with the carrier will not enable him to secure interstate transportation at less than the published rate.''^ And if the making of a contract between the parties does not affect the power of the federal govern- ment over transportation which is substantially inter- state, the manner in which the parties arrange for the transportation cannot be of overwhelming importance. Undisclosed intentions. 19. But while the relation between the parties does not depend entirely upon contract, it does not follow that age Ineptitude, 6 Col. L. Eev. 161; Purity E. & T. Co. v. Lynch (1912) 226 U. S. 192, 33 Sup. Ct. 44, 57 L. ed. 184; Cook v. Marshall County (1905) 196 U. S. 261, 25 Sup. Ct. 233, 49 L. ed. 471; Austin v. Tennessee (1900) 179 U. S. 343, 21 Sup. Ct. 132, 45 L. ed. 225. 65 Armour P. Co. v. United States (1908) 209 U. S. 56, 28 Sup. Ct. 428, 52 L. ed. 681; Kansas C. S. Ry. Co. v. Albers Comn. Co. (1912) 223 U. S. 573, 32 Sup. Ct. 316, 56 L. ed. 556; Louisville & N. R. Co. v. Mottley (1911) 219 U. S. 467, 31 Sup. Ct. 265, 55 L. ed. 297; New Y. C. & H. R. R. Co. v. United States (No. 2) (1909) 212 U. S. 500, 504, 29 Sup. Ct. 309, 311, 53 L. ed. 624; Texas & P. Ry. Co. v. Mugg (1900) 202 U. S. 242, 26 Sup. Ct. 628, 50 L. ed. 1011. See also Chicago & A. R. Co. v. Kirby (1912) 225 U. S. 155, 32 Sup. Ct. 648, 56 L. ed. 1033; United States v. Miller (1912) 223 U. S. 599, 32 Sup. Ct. 323, 56 L. ed. 568; Philadelphia, B. & W. R. Co. v. Schubert (1912) 224 U. S. 603, 32 Sup. Ct. 589, 56 L. ed. 911; American S. R. Co. V. Delaware, L. & W. Ry. Co. (1912) 200 Fed. 652; Clegg v. St. Louis & S. F. R. Co. (1913) 203 Fed. 971. There is, however, no reason to doubt that if in the Armour case the shipper had acted in time it might have secured an injunction restraining the railroad from establishing or from maintaining the higher rate, even though, so long as the higher rate remained in force, the shipper could not lawfully pay less than that rate. SEPAJIATE INTRASTATE TRANSPORTATION. 31 duties may be imposed upon a railroad merely by the un- disclosed intention of a shipper or consignee or may be imposed retroactively when those intentions are disclos- ed. On the contrary, it may well be the case that the rights and duties of the railroad for the first part of the total transportation may be definitely established when that part of the transportation takes place,^® or even as far back as the time when the shipper makes the demand for that transportation,^" and the rates for that part of the transportation may then be unalterable. Yet even though the relation between the parties with regard to what had already happened could not then be changed, there seems to be no reason why the federal government should not be able to reach out directly and punish a shipper or pas- senger for his conduct if he has made a break in inter- state transportation simply in order to secure local rates for part of the distance. The Interstate Commerce Act expressly forbids the railroad companies to interiTipt the through interstate transportation of freight for any such purpose.^^ It seems that to that extent at least that sec- 66 See Gulf, C. & S. F. Ry. Co. v. Texas (1907) 204 U. S. 403, 413, 27 Sup. Ct. 360, 363, 51 L. ed. 540. 67 See In the Matter of Through Routes and Through Rates (1907) 12 I. C. C. 163. Consider also Drinker, Interstate Commerce Act, sec. 237, and cases cited in latter part of note 34, supra, 68 "It shall be unlawful for any common carrier subject to the provisions of this act to enter into any combination, contract, or agreement, expressed or implied, to prevent, by change of time schedule, carriage in different cars, or by any other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one con- tinuous carriage from the place of shipment to the place of destination, unless such break, stoppage or interruption was made in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this Act:" Act Feb. 4, 1887, c. 104, sec. 7, 24 U. S. Stats, at L. 379, 382, 1 Supp. to Rev. Stats. 529, 530, 3 Fed. Stats. An. 808, 832. 32 THE COMMERCE CLAUSE. tion of the act is constitutional. And it seems that if there were a similar prohibition upon shippers and pas- sengers that prohibition also would be constitutional. Auxiliary services. 20. The Interstate Commerce Act empowers the com- mission to establish rates applicable to the receipt, deliv- ery, elevation and transfer in transit of goods in the course of interstate railroad transportation, and the Su- preme Court has enforced provisions of the act referring to elevation,^^ terminal and switching services.^'' Before the enactment of this provision the Supreme Court sustained a law which regulated the charges for transferring from a canal-boat to an ocean steamer grain which was apparently being carried from a place in an- other state to a foreign port.'^^ The court, however, gave 69 Union P. R. Co. v. Updike G. Co. (1911) 222 U. S. 215, 32 Sup. Ct. 39, 56 L. ed. 171; Interstate Com. Comn. v. Diffenbaugh (1911) 222 U. S. 42, 32 Sup. Ct. 22, 56 L. ed. 83. See also Elwood G. Co. v. St. Joseph & G. I. Ry. Co. (1913) 202 Fed. 845. 70 United States v. Union S. Y. & T. Co. (1912) 226 U. S. 286, 33 Sup. Ct. 83, 57 L. ed. 226. See also Southern P. T. Co. v. Interstate Com. Comn. (1911) 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310, which arose under the Interstate Commerce Act; United States v. Terminal R. Assn. of St. Louis (1912) 224 U. S. 383, 412, 32 Sup. Ct. 507, 516, 56 L. ed. 810, which arose under the Anti-Trust Act; and St. Louis, S. F. & T. Ry. Co. v. Scale ( 1913) 229 U. S. 156, 33 Sup. Ct. 651, 57 L. ed. 1129, Avhich relates to the Em- ployers' Liability Act. 71 New York ex rel. Annan v. Walsh, decided with Budd v. New York (1892) 143 U. S. 517, 12 Sup. Ct. 468, 36 L. ed. 247. See also People v. Budd (1889) 117 N. Y. 1, 9, 22, 22 N. E. 670, 673, 678, 5 L. R. A. 559. Compare State v. Omaha E. Co. (1906) 75 Neb. 654, 110 N. W. 874. The court said, in deciding the Annan case with others, "So far as the statute in question is a regulation of commerce, it is a regulation of commerce only on the waters of the state of New York. It operates only within the limits of that state, and is no more obnoxious as a regulation of interstate com- merce than was the statute of Illinois in respect to warehouses, in Munn v. Illinois. It is of the same character with navigation laws in respect to navigation within the state, and laws regulating wharfage rates within the SEPAJIATE INTRASTATE TRANSPORTATION 33 only slight attention to the bearing of the commerce clause upon the subject. The court has also sustained a state law which imposed a franchise tax upon a local cab service which connected state, and other kindred laws:" 143 U. S. 545, 12 Sup. Ct. 476, 36 L. ed. 256. Munn v. Illinois (1876) 94 U. S. 113, 24 L. ed. 77, and Brass v. North Dakota (1894) 153 U. S. 391, 14 Sup. Ct. 857, 38 L. ed. 757, do not go so far as the Annan case, for they involve primarily storage charges. In Munn V. Illinois the court says (p. 135) that the warehouses "are used as instruments by those engaged in state as well as those engaged in inter- state commerce, but they are no more necessarily a part of commerce itself than the dray or cart by which, but for them, the grain would be trans- ferred from one railroad station to another. Incidentally they may become connected with interstate commerce, but not necessarily so. Their regu- lation is a thing of domestic concern, and, certainly, until Congress acts in reference to their interstate relations, the state may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction." The Munn case differs from the Annan case in that it does not appear that the main use of the Munn warehouse was the prompt transfer of grain from one carrier to another. Decisions sustaining navigation laws do not bear on the question directly. In the absence of congressional action a state may enact some regulations concerning the navigation of waters which are en- tirely within the state, but which form part of a continuous highway for interstate commerce: see cases at end of note 91, infra. And, Congress having passed no laws upon the subject, the court upholds state laws which authorize individuals and companies having control of wharves and im- proved waterways to collect charges named by the state from those who use such facilities, even though they are carrying goods to or from other states: Ouachita P. Co. v. Aiken (1887) 121 U. S. 444, 7 Sup. Ct. 907, 30 L. ed. 976; Transportation Co. v. Parkersburg (1883) 107 U. S. 691, 2 Sup. Ct. 733, 27 L. ed. 584; Packet Co. v. Catlettsburg (1882) 105 U. S. 559, 26 L. ed. 1169. See also Weems S. Co. v. People's S. Co. (1909) 214 U. S. 345, 29 Sup. Ct. 661, 53 L. ed. 1024; Atlantic & P. T. Co. v. Philadelphia (1903) 190 U. S. 160, 163, 23 Sup. Ct. 817, 818, 47 L. ed. 995; Lindsay & Phelps Co. V. Mullen (1900) 176 U. S. 126, 148, 154, 20 Sup. Ct. 325, 333, 335, 44 L. ed. 400; Monongahela N. Co. v. United States (1893) 148 U. S. 312, 13 Sup. Ct. 622, 37 L. ed. 463. Compare Harmon v. Chicago (1893) 147 U. S. 396, 13 Sup. Ct. 306, 37 L. ed. 216. The statutes were contested by com- panies which used the improvements, not by those who controlled them. But see Southern P. T. Co. v. Interstate Com. Comn. (1911) 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310, cited in sec. 16, supra, and discussion in Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 33 Sup. Ct. 729, 57 L. ed. 1511. 34 THE COMMERCE CLAUSE. with an interstate feiT}^ and railroad ser^dce furnished by the same company but under separate contracts with its patrons, the court declaring that the transportation in the cabs was not part of interstate transportation.'^ - But while in a case which arose under the Interstate Commerce Act there is a dictum by a circuit court of ap- peals that carting to and from stations is an independent business which is not usually carried on by the com- panies themselves nor usually within the scope of the act or the power of Congress, '^^ yet in a case which subse- 72 New York v. Knight (1904) 192 U. S. 21, 24 Sup. Ct. 202, 48 L. ed. 325. With this case we must compare Swift & Co. v. United States (1905) 196 U. S. 375, 392, 401, 25 Sup. Ct. 276, 277, 281, 49 L. ed. 518, referred to in note 74, infra. In the Knight case the court said that the service was tax- able becavise it was contracted for independently and was, therefore, merely preliminary to interstate transportation or subsequent thereto. On this point see sees. 16-18, supra. Extended reference was made to Coe v. Errol, considered in notes 51, 53, supra, and 73, infra. The case of Detroit, G. H. & M. Ry. Co. V. Interstate Com. Comn. (see note 73, infra) which was cited, would add more weight to the decision if the cab service had been rendered by another company than the one which operated the ferry and the rail- road. See People v. Knight (1901) 67 N. Y. App. Div. 398, 73 N. Y. Supp. 790 (1902) 171 N. Y. 354, 64 N. E. 152, for opinions of the lower courts in the present case. And it may be interesting to compare the discussion in The Robert W. Parsons (1903) 191 U. S. 17, 32, 24 Sup. Ct. 8, 13, 48 L. ed. 17, on supplying grain for canal-boat horses Math the remarks in this case on supplying grain for cab horses. — We must note that the decision in this case deals with taxation and not with rate regulation : see Hanley v. Kansas C. S. Ry. Co. (1903) 187 U. S. 617, 621, 23 Sup. Ct. 214, 215, 47 L. ed. 333; Old D. S. Co. v. Virginia (1905) 198 U. S. 299, 306, 25 Sup. Ct. 686, 688, 49 L. ed. 1059; compare Covington & C. B. Co. v. Kentucky (1894) 154 U. S. 204, 222, 14 Sup. Ct. 1087, 1094, 38 L. ed. 962; Kidd v. Pearson (1888) 128 U. S. 1, 26, 9 Sup. Ct. 6, 12, 32 L. ed. 346. And it deals with transportation by cabs and not by railroads. The cab service was unimportant and the court touched on that fact. It was somewhat diiferent from the service of an intrastate railroad, which may carry for hundreds of miles. It seems that because of the size of rowboats courts of admiralty do not exercise jurisdiction over them: see The Robert W. Par- sons (1903) 191 U. S. 17, 33, 24 Sup. Ct. 8, 13, 48 L. ed. 80; compare 191 U. S. 30, 24 Sup. Ct. 12, 48 L. ed. 78, 79. 73 This was before the amendment of 1906. The court said that carting to and from stations "is a business done almost exclusively by outsiders SEPARATE INTRASTATE TRANSPORTATION. 35 quently arose under the federal Anti-trust Act the Su- preme Court decided that an agreement between inter- state shippers which included the making of uniform charges for cartage for delivery of their goods to their customers was in that respect unlawful/'* It seems that in all cases such as those which we have just considered, the charges for the transportation may and rarely by the railroad companies, and being usually done wholly within the territorial limits of a state is not within the jurisdiction of Congress. . . . We have no doubt that whenever it does become an element of interstate commerce it is within the control of Congress and falls within the regulations of this act, but in determining how far its provisions apply to cartage we should carefully keep in mind the fact that it is a separate and independent business, not usually carried on by the railroad compan- ies themselves nor usually within the scope of the act or the power of Congress:" Detroit, G. H. & M. Ry. Co. v. Interstate Com. Comn. (1896) 74 Fed. 803, 813. For final decision see Interstate Com. Comn. v. Detroit, G. H. & M. Ry. Co. (1897) 167 U. S. 633, 644, 646, 17 Sup. Ct. 986, 990, 42 L. ed. 310. See also Hirsch v. New E. N. Co. (1908) 129 N. Y. App. Div. 178, 113 N. Y. Supp. 395. And in Coe v. Errol (1886) 116 U. S. 517, 528, 6 Sup. Ct. 475, 479, 29 L. ed. 715, a case concerning state taxation of prop- erty, the court said that the interstate "movement does not begin until the articles have been shipped or started for transportation from the one state to the other. The carrying of them in carts or other vehicles, or even floating them, to the depot where the journey is to commence is no part of that journey. That is all preliminary work, performed for the purpose of putting the property in a state of preparation and readiness for transpor- tation. Until actually launched on its way to another state, or committed to a common carrier for transportation to such state, its destination is not fixed and certain. It may be sold or otherwise disposed of within the state, and never put in course of transportation out of the state. Carrying it from the farm, or the forest, to the depot, is only an interior movement of the property, entirely within the state, for the purpose, it is true, but only for the purpose, of putting it into a course of exportation; it is no part of the exportation itself. Until shipped or started on its final journey out of the state, its exportation is a matter altogether in fieri, and not at all a fixed and certain thing." On this case see also notes 51, 53, supra. 74 Swift & Co. V. United States (1905) 196 U. S. 375, 392, 401, 25 Sup. Ct. 276, 277, 281, 49 L. ed. 518. The court said that cartage for which the packers made uniform charges was "not an independent matter, such as was dealt with in New York ex rel. Pennsylvania R. Co. v. Knight (1904) 192 U. S. 21, 24 Sup. Ct. 202, 48 L. ed. 325, (see note 72, supra) but a part of the contemplated transit — cartage for delivery of the goods." 36 THE COMMERCE CLAUSE. well be regulated by the state in the absence of federal legislation which is inconsistent with such regulation. But it also seems clear that in so far as such services re- late to interstate transportation the charges for them must be subject to the paramount control of Congress/^ CHARTERS AND CONTRACTS. Waiver of constitutional rights, expressly and by impli- cation. 21. We have already noted that while the Constitution empowers Congress to regulate interstate rates '^^ the states have power to regulate local rates.'^^ The court has said that the states may regulate local rates even where the railroad was chartered by the federal government, at least until Congress directs otherwise.'^^ And it is sub- 75 On the question whether the mere empowering of the Interstate Com- merce Commission to regulate switching services deprives the state courts of power to enforce the common law in the absence of action by the Commission, see Missouri P. Ry. Co. v. Larabee F. M. Co. (1909) 211 U. S. 612, 29 Sup. Ct. 214, 53 L. ed. 352; Savage v. Jones (1912) 225 U. S. 501, 32 Sup. Ct. 715, 56 L. ed. 1182; with which compare Southern Ry. Co. v. Reid (1912) 222 U. S. 424, 32 Sup. Ct. 140, 56 L. ed. 257 ; Southern Ry. Co. v. Reid & Beam (1912) 222 U. S. 444, 32 Sup. Ct. 145, 56 L. ed. 263; Northern P. Ry. Co. V. Washington (1912) 222 U. S. 370, 32 Sup. Ct. 160, 56 L. ed. 237; McNeill v. Southern Ry. Co. (1906) 202 U. S. 543, 26 Sup. Ct. 722, 50 L. ed. 1142. 76 See sec. 6, supra. 77 See notes 39, 40, supra. 78 Smyth v. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Reagan v. Mercantile T. Co. (1894) 154 U. S. 413, 14 Sup. Ct. 1060, 3R L. ed. 1028. See also St. Louis & S. F. Ry. Co. v. Stevenson (1895) 156 U. S. 667, 15 Sup. Ct. 491, 39 L. ed. 574, (affirming (1891) 54 Ark. 116, 15 S. W. 22) ; Thompson v. Kentucky (1908) 209 U. S. 340, 28 Sup. Ct. 533, 52 L. ed. 822; Allen v. Riley (1906) 203 U. S. 347, 3.55. 27 Sup. Ct. 95, 98, 51 L. ed. 216; South Carolina v. United States (1905) 199 U. S. 437, 463, 26 Sup. Ct. 110, 117, 50 L. ed. 261, 4 A. & E. An. Cas. 737, 743, 744; Murray v. Wilson D. Co. (1909) 213 U. S. 151, 173, 29 Sup. Ct. 458, 465, 53 L. ed. 742; Cooke, State and Federal Control of Corporations, 23 Harv. L. Rev. 456. And a road is not exempt from state regulation be- CHARTERS AND CONTRACTS. 37 mitted that Congress caimot direct otherwise— that it cannot deprive the states of their power to regulate rates which are strictly localJ^ But, admitting that Congress has no' law-making power over rates which are strictly local, may it regulate such rates by virtue of a contract with the railroad granting that power, if such regulations do not conflict with any state law? And might the states regulate interstate rates by virtue of contracts with the railroads if the regula- tions did not conflict with any federal regulations? We are assuming, of course, the existence of clear con- tracts. It seems that a state does not by the mere char- tering of a railroad obtain a right to regulate its inter- state rates,^^ and, if so, Congress does not by the mere cause it was granted land and a right of way by the federal government and, by virtue of acts of Congress, is a post and military route: St. Louis & S. F. Ry. Co. V. Gill (1891) 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452. On the other hand, in Flint v. Stone Tracy Co. (1911) 220 U. S. 107, 31 Sup. Ct. 342, 55 L. ed. 389, a federal law which taxed state corporations was sustained. 79 See notes 39, 40, supra. Upon what ground could railroads chartered by Congress claim exceptional treatment as to their local transportation? Has Congress any greater authority to empower its railroads to conduct intrastate transportation than one state has to empower its own railroads to carry persons or goods between points within another jurisdiction ? Yet with discussion in this section and in Cooke, The Source of Authority to Engage in Interstate Commerce, 24 Harv. L. Rev. 635; Cooke, State and Federal Control of Corporations, 23 Harv. L. Rev. 456, and note State Interference with Federal Governmental Agencies, 10 Col. L. Rev. 458; compare Fairleigh, Inquiry into Power of Congress to Regulate the Intra- state Business of Interstate Railroads, 9 Col. L. Rev. 38; Hudson, Federal Incorporation, 26 Pol. Sci. Quar. 63. 80 See State v. Atchison, T. & S. F. Ry. Co. (1903) 176 Mo. 687, 75 S. W. 776, 63 L. R. A. 7ol; Louisville & N. R. Co. v. Railroad Comn. (1884) 19 Fed. 679, 711; and also Northern S. Co. v. United States (1904) 193 U. S. 197, 345, 24 Sup. Ct. 436, 460, 48 L. ed. 679; Interstate Com. Comn. V. Detroit, G. H. & M. Ry. Co. (1897) 167 U. S. 633, 642, 17 Sup. Ct. 986, 989, 42 L. ed. 310; Carroll v. Greenwich Ins. Co. (1905) 199 U. S. 401, 409, 26 Sup. Ct. 66, 67, 50 L. ed. 246 : National C. J. O. U. A. M. v. State Council (1906) 203 U. S. 151, 162, 27 Sup. Ct. 46, 48, 51 L. ed. 132; Hous- 38 THE COMMERCE CLAUSE. act of chartering obtain control over the local rates of a company. But those statements may simply show what weight the court will give to the act of chartering. We are assuming the existence of clear contracts. Express waiver of constitutional rights. 22. May, then, a railroad by contract empower Con- gress to regulate its local rates, if such regulations do not conflict with state regulations, and might a railroad by contract empower a. state to regulate its interstate rates if such regulations did not conflict with federal law? A circuit court of appeals, in an opinion which was prepared by Judge Taft and concurred in by Judges Lur- ton and Clark, has decided that a city may by contract bind a railroad to furnish interstate transportation to its citizens at rates which do not unjustly discriminate against them.^^ The court distinguished between the power to limit rates by law and the power to limit them by contract. There is also a number of other cases in the Supreme Court and in state and federal courts which assert that a ton D. N. Co. V. Insurance Co. of N. A. (1895) 89 Tex. 1, 32 S. W. 889, 30 L. R. A, 713. Contra State v. Cincinnati, N. 0. & T. P. Ry. Co. (1890) 47 Ohio St. 130, 23 N. E. 928, 7 L. R. A. 319; dissenting opinion in Wabash, St. L. & P. Ry. Co. V. Illinois (1886) 118 U. S. 557, 7 Sup. Ct. 4, 30 L. ed. 244. In the latter case the prevailing opinion does not discuss the ques- tion. In Covington & C. B. Co. v. Kentucky (1894) 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. ed. 962, where two states chartered an interstate bridge, the court merely decided that neither state alone may regulate the tolls. In St. Clair County v. Interstate S. & C. T. Co. (1904) 192 U. S. 454, 465, 24 Sup. Ct. 300, 303, 48 L. ed. 518, the decision in the bridge case is mis- stated. See also Cooke, The Source of Authority to Engage in Interstate Commerce, 24 Harv. L. Rev. 635, 640, 641; Cooke, State and Federal Con- trol of Corporations, 23 Harv. L. Rev. 456. 81 Iron M. R. Co. v. City of Memphis (1899) 96 Fed. 113. CHARTERS AND CONTRACTS. 39 railroad cannot, while benefitting by a contract, deny the power of a city or state to make that contract.^^ Moreover, the United States Supreme Court refuses to review the correctness of decisions by state courts that 82 Southern P. Co. v. Portland (1913) 227 U. S. 559, 33 Sup. Ct. 308, 57 L. ed. 642; Interstate C. S. Ry. Co. v. Commonwealth ( 1907) 207 U. S. 79, 28 Sup. Ct. 26, 52 L. ed. Ill; Grand R. & I. Ry. Co. v. Osborn (1904) 193 U. S. 17, 24 Sup. Ct. 310, 48 L. ed. 598; Daniels v. Tearney (1880) 102 U. S. 415, 26 L. ed. 187 ; Chicago, R. I. & P. Ry. Co. v. Zernecke ( 1902 ) 183 U. S. 582,22 Sup. Ct. 229, 46 L. ed. 339 ; Merchants' Nat. Bank v. Sexton ( 1913) 228 U. S. 634, 33 Sup. Ct. 725, 57 L. ed. 998; cases cited in Pullman Co. v. Kansas ( 1910) 216 U. S. 56, 67, 30 Sup. Ct. 232, 236, 54 L. ed. 378 ; National M.B. & L. Assn. v. Brahan ( 1904) 193 U. S. 635, 24 Sup. Ct. 532, 48 L. ed. 823 ; Cooley, Constitutional Limitations, 7th ed., 250; Emporia v. Emporia T. Co. (1913) 88 Kan. 443, 129 Pac. 187; Potter v. Calumet E. S. Ry. Co. (1908) 158 Fed. 521; Robinson v. Harmon (1908) 157 Mich. 266, 272, 117 N. W. 661 (1909) 157 Mich. 276, 122 N. W. 106; Simons' Sons Co. v. Maryland T. & T. Co. (1904) 99 Md. 141, 57 Atl. 193, 63 L. R. A. 727; Vining v. Detroit, Y., A. A. & J. Ry. (1903) 133 Mich. 539, 95 N. W. 542; Muncie N. G. Co. v. Muncie (1903) 160 Ind. 97, 66 N. E. 436, 60 L. R. A. 822; IMinor v. Erie R. Co. (1902) 171 N. Y. 566, 64 N. E. 454; Purdy v. Erie R. Co. (1900) 162 N. Y. 42, 56 N. E. 508, 48 L. R. A. 669; People v. Suburban R. Co. (1899) 178 111. 594, 53 N. E. 349, 49 L. R. A. 650; San Diego L. & T. Co. v. National City (1896) 74 Fed. 79, 81, affirmed on another ground (1899) 174 U. S. 739, 19 Sup. Ct. 804, 43 L. ed. 1154; Westfield G. & M. Co. v. Mendenhall (1895) 142 Ind. 538, 41 N. E. 1033; Mayor v. Manhattan Ry. Co. (1894) 143 N. Y. 1, 37 N. E. 494; Allegheny V, Millville, E. & S. S. Ry. Co. (1893) 159 Pa. 411, 416, 28 Atl. 202; Louis- ville & N. R. Co. V. Railroad Comn. (1884) 19 Fed. 679, 711; Pacific R. Co. V. Leavenworth (1871) 1 Dill. 393, Fed. Cas. No. 10649; Ferguson v. Lan- dram (1868) 5 Bush (Ky.) 230; St. Louis & M. R. Co. v. Kirkwood (1900) 159 Mo. 239, 60 S. W. 110, 53 L. R. A. 300. And see Cen. Dig., Const. L., sec. 41; Dec. Dig., Const. L., sec. 43; 28 Am. L. Rev. 405. Compare Ameri- can S. & R. Co. V. Colorado (1907) 204 U. S. 103, 27 Sup. Ct. 198, 51 L. ed. 393, Contra State v. Omaha & C. B. Ry. & B. Co. (1901) 113 Iowa, 30, 84 N. W. 983, 52 L. R. A. 315; and see State v. Western & A. R. Co. (1912) 138 Ga, 835, 843, 76 S. E. 577, 581; Keefe v. Lexington & B. S. Ry. Co. (1904) 185 Mass. 183, 70 N. E. 37; Galveston & W. Ry. Co. v. Galveston (1897) 90 Tex. 398, 91 Tex. 17, 39 S. W. 96, 920, 36 L. R. A. 33; South Pasadena v. Los Angeles T. Ry. Co. (1895) 109 Cal. 315, 41 Pac. 1093; Appeal of City of Pittsburgh (1886) 115 Pa. 4, 7 Atl. 778; dissenting opinion in Wabash, St. L. & P. Ry. Co. v. Illinois (1886) 118 U. S. 557, 588, 7 Sup. Ct. 4, 19, 30 L. ed. 244. In the Iowa case the ordinance was clearly void for another reason, but the remarks of the court on the com- merce clause are decidedly unconvincing. 40 THE COMMERCE CLAUSE. parties have waived the benefit of constitutional provi- sions or of federal statutes, taking the ground that such decisions do not involve federal questions.^^ These cases necessarily imply that at least some rights secured by fed- eral law may be waived. But there is another line of cases, distinguishable from those just mentioned though of questionable consistency with them, which holds void agreements by foreign cor- porations not to remove to federal courts any cases which may arise in the future.'^^ It is, however, admitted that the right to remove a suit may be waived in each recur- ring case.^^ Now, it is obvious that a carrier cannot, in any way, exempt itself from the duty of complying with the re- quirements of a valid act of Congress ;^^ and it is equally 83 Leonard v. Vicksburg, S. & P. R. Co. (1905) 198 U. S. 416, 422, 25 Sup. Ct. 750, 753, 49 L. ed. 1108, and cases cited therein; and see Mobile, J. & K. C. R. Co. V. Mississippi (1908) 210 U. S. 187, 204, 28 Sup. Ct. 650, 656, 52 L. ed. 1016; Marrow v. Brinkley (1889) 129 U. S. 178, 9 Sup. Ct. 267, 32 L. ed. 954. With these cases compare Grand R. & I. Ry. Co. v. Os- born (1904) 193 U. S. 17, 24 Sup. Ct. 310, 48 L. ed. 598. 84 See cases cited in Cable v. United S. L. I. Co. (1903) 191 U. S. 288, 306, 307, 24 Sup. Ct. 74, 77, 78, 48 L. ed. 188. But compare Security M. L. Ins. Co. V. Prewitt (1906) 202 U. S. 24G, 20 Sup. Ct. 619, 50 L. ed. 1013. 85 On the question of waiver of constitutional rights see also Schick v. United States (1904) 195 U. S. 65, 24 Sup. Ct. 826, 49 L. ed. 99, (followed in MuUan v. United States (1909) 212 U. S. 516, 29 Sup. Ct. 330, 53 L. ed. 632); Cooley, Constitutional Limitations, 7th ed., 250; Cen. Dig., Const. L., sec. 41; Dec. Dig., Const. L., sec. 43; Foster v. Morse (1882) 132 Mass. 354; Conde v. Schenectady (190O) 164 N. Y. 258, 263, 58 N. E. 130, 131; Ferguson v. Landram (1868) 5 Bush (Ky.) 230; Hingham & Q. B. & T. Corp. V. County of Norfolk (1863) 88 Mass. 353, 357. Compare O'Brien V. Wheelock (1902) 184 U. S. 450, 22 Sup. Ct. 354, 46 L. ed. 636. 86 United States Constitution, Article VI, cl. 2; Chicago, I. & L. Ry. Co. V. United States (1911) 219 U. S. 486, 497, 31 Sup. Ct. 272, 275, 55 L. ed. 305; Northern S. Co. v. United States (1904) 193 U. S. 197, 333, 24 Sup. Ct. 436, 455, 48 L. ed. 679; Gulf, C. & S. F. Ry. Co. v. Hefley (1895) 158 U. S. 98, 15 Sup. Ct. 802, 39 L. ed. 910; Fitzgerald v. Fitzgerald & Mallory C. Co. (1894) 41 Neb. 374, 59 N. W. 838; and see Chicago, B. & CHARTERS AND CONTRACTS. 41 obvious that a state cannot by law deprive a carrier of any right secured to it by the Federal Constitution or by a valid federal law;^''^ but it certainly does not follow from either of these truisms that that which is a right and not a duty may not be bargained away ; and the court has not shown any sufficient reason for declaring that a right which may be bargained away for one specific occasion may not be bargained away for all occasions which may arise in the future. There is also another line of cases which is somewhat similar to those which we have just discussed. In them the court has held that while a state may forbid a carrier to transact intrastate business within its borders with- out giving any reason for its prohibition, it cannot make its permission to transact such business depend upon a waiver by the carrier of its constitutional rights.^^ Dis- Q. R. Co. V. Hall (1913) 229 U. S. 511, 33 Sup. Ct. 885, 57 L. ed. 1306; St. Louis, I. M. & S. Ry. Co. v. Hesterly (1913) 228 U. S. 702, 33 Sup. Ct. 703, 57 L. ed. 1031; Jacobson v. Massachusetts (1905) 197 U. S. 11, 25, 25 Sup. Ct. 358, 361, 49 L. ed. 643; Missouri, K. & T. Ry. Co. v. Haber (1898) 169 U. S. 613, 626, 18 Sup. Ct. 488, 493, 42 L. ed. 878; National M. B. & L. Assn. V. Brahan (1904) 193 U. S. 635, 647-651, 24 Sup. Ct. 532, 535- 537, 48 L. ed. 823; notes 4, 24, supra. Compare Dallemagne v. Moisan (1905) 197 U. S. 169, 174, 25 Sup. Ct. 422, 424, 49 L. ed. 709. 87 See, on the right to resort to federal courts, Madisonville T. Co. v. St. Bernard M. Co. (1905) 196 U. S. 239, 253, 25 Sup. Ct. 251, 257, 49 L. ed. 462; Blake v. McClung (1898) 172 U. S. 239, 255, 19 Sup. Ct. 165, 171, 43 L. ed. 432; Barrow S. Co. v. Kane (1898) 170 U. S. 100, 111, 18 Sup. Ct. 526, 530, 42 L. ed. 964; and cases there cited; Chicago, R. I. & P. Ry. Co. V. Ludwig (1907) 156 Fed. 152. Compare Security M. L. Ins. Co. V. Prewitt (1906) 202 U. S. 246, 26 Sup. Ct. 619, 50 L. ed. 1013; Dillard, The Power of a State to Restrict the Right of a Foreign Corporation to Remove Cases to the United States Courts, 40 Chi. Leg. News, 316, 323, 336. ssHerndon v. Chicago, R. I. & P. Ry. Co. (1910) 218 U. S. 135, 158, 30 Sup. Ct. 633, 639, 54 L. ed. 970; Southern Ry. Co. v. Greene (1910) 216 U. S. 400, 30 Sup. Ct. 287, 54 L. ed. 536; Western U. T. Co. v. Kansas (1910) 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. v. Kansas (1910) 216 U. S. 56, 30 Sup. Ct. 232, 54 L. ed. 378; Ludwig v. Western U. T. Co. (1910) 216 U. S. 146, 30 Sup. Ct. 280, 54 L. ed. 423. Compare citations in not* 89, infra. 42 THE COilMERCE CLAUSE. senting justices have declared that the court has never given any sufficient reason for its position,^^ and their statement seems to be correct; but the court has, neverthe- less, taken that position in several cases. The decisions, however, do not directly overrule the cases in which the court has held that where there is an express contract a railroad cannot, while benefitting by the contract, deny the power of the city or the state to make that contract. INTERSTATE AND INTRASTATE HIGHWAYS. Decisions concerning navigation. 23. There remains for us to note simply those cases which have arisen under what may be termed the ' ' inter- state highway" rule. The court in cases which arose a number of years agO' decided that the federal government has power to regulate navigation entirely within one state upon waters which by themselves or by connection with other waters form a continuous highway for inter- state or foreign commerce,^" but that the states have ex- 89 Western U. T. Co. v. Kansas (1910) 216 U. S. 1, 52, 30 Sup. Ct. 190,, 208, 54 L. ed. 355; Pullman Co. v. Kansas (1910) 216 U. S. 56, 75, 77, 30 Sup. Ct. 232, 240, 241, 54 L. ed. 378. See also Security M. L. Ins. Co. v. Prewitt (1906) 202 U. S. 246, 26 Sup. Ct. 619, 50 L. ed. 1013; Hammond P. Co. V. Arkansas (1909) 212 U. S. 322, 29 Sup. Ct. 370, 53 L. ed. 530; Willoughby On the Constitution, pp. 150, 698 ; discussion in 23 Harv. L. Rev. 549-551; Denver v. New Y. T. Co. (1913) 229 U. S. 123, 141, 142, 33 Sup. Ct. 657, 666, 57 L. ed. 1101. Compare brief 216 U. S. at 16; 21 Harv. L. Rev. 215; Bowman, The State's Power Over Foreign Corpora- tions, 9 Mich. L. Rev. 549. 90 The Montello (1874) 20 Wall. 430, 22 L. ed. 391 (1870) 11 Wall. 411, 20 L. ed. 191. Federal license and machinery regulations were applied to a vessel which carried between two places in the same state upon a waterwaj^ which formed in connection with other waters a continuous high- way to other states. To some extent the vessel carried goods coming from and goods destined to points outside the state, but this fact was appar- ently considered unimportant. See 11 Wall. 415, 20 L. ed. 192. In The Oyster Police Steamers (1887) 31 Fed. 763, penalties for noncompliance INTERSTATE AND INTRASTATE HIGHWAYS. 43 elusive power to regulate navigation upon intrastate waters which do not form part of such continuous high- way, although goods carried upon them are destined to other states.^ ^ And this distinction the court based upon the commerce clause, although it might with far more with a federal inspection law were imposed upon police boats which were used entirely within the state; and in the United States v. Beacham (1886) 29 Fed. 284, a federal law concerning the equipment of boats was applied in the case of an excursion steamer plying between two points in the same state. See also The Daniel Ball (1870) 10 Wall. 557, 19 L. ed. 999; Lord V. Steamship Co. (1880) 102 U. S. 541, 26 L. ed. 224 (which was explained in Lehigh V. R. Co. v. Pennsylvania (1892) 145 U. S. 192, 203, 12 Sup. Ct. 806, 808, 809, 36 L. ed. 672; The Robert W. Parsons (1903) 191 U. S. 17, 35, 24 Sup. Ct. 8, 14, 48 L. ed 17) ; United States v. Burlington & H. C. F. Co. (1884) 21 Fed. 331; The City of Salem (1889) 38 Fed. 762, 4 L. R. A. 125, 37 Fed. 846, 2 L. R. A. 380; United States v. The Frank Sylvia (1888) 37 Fed. 155; The Hazel Kirke (1885) 25 Fed. 601; Harmon v. Chicago (1893) 147 U. S. 396, 13 Sup. Ct. 306, 37 L. ed. 216; Cooke, The Com- merce Clause, pp. 91-93; United States v. Chandler-Dunbar W. P. Co. (1913) 229 U. S. 53, 33 Sup. Ct. 667, 57 L. ed. 1063. Compare The Gretna Green (1883) 20 Fed. 901; Passenger Cases (1849) 7 How. 283, 400, 12 L. ed. 702; Montgomery v. Portland (1903) 190 U. S. 89, 105, 23 Sup. Ct. 735, 737, 47 L. ed. 965; United States v. Bellingham B. B. Co. (1900) 176 U. S. 211, 215, 20 Sup. Ct. 343, 344, 44 L. ed. 437; Sands v. Manistee R. I. Co. (1887) 123 U. S. 288, 295, 8 Sup. Ct. 113, 116, 31 L. ed. 149; Gibbons V. Ogden (1824) 9 Wheat. 1, 194, 195, 6 L. ed. 23. 9iVeazie v. Moor (1852) 14 How. 568, 14 L. ed. 545. The court decided that a federal coasting license did not grant to the holder the right to use an improved waterway which was entirely within a state and which had no navigable connection with places outside the state, although a railroad connected a point on that waterway with the ocean, and it asserted that Congress could not grant him such power. The commerce while "availing itself of those facilities was unquestionably internal, although intermed- iately or ultimately it might become foreign." The case is cited in Cov- ington & C. B. Co. V. Kentucky (1894) 154 U. S. 204, 210, 14 Sup. Ct. 1087, 1089, 38 L. ed. 962, as authority for the proposition that the states have exclusive power to regulate the navigation of such waters "notwith- standing the fact that the goods or passengers carried or travelling over such highway between points in the same state may ultimately be destined for other states, and, to a slight extent, the state regulations may be said to interfere with interstate commerce." See also Commonwealth v. King (1889) 150 Mass. 221, 22 N. E. 905, 5 L. R. A. 536; The Rockaway (1907) 156 Fed. 692, 694. 44 THE COMMERCE CLAUSE. propriety have based it upon the grant of admiralty pow- ers.»2 Discussion. 24. It is improbable, however, that the distinction would be applied in determining the validity of state or federal regulations of charges for transportation by water ;^" and it seems clear that authority over railroad charges does not depend upon whether or not the rail- road is part of a '' continuous highway"— that even though a railroad itself extends into several states its charges for transportation which is strictly local are within the control of the states and are not within the control of Congress,^^ and that a railroad which carries under a through bill of lading goods destined to another state would not be subject to the exclusive power of the state while carrying within its borders if at the boundary of the state the cars were transferred to floats or the goods were placed upon boats for carriage to their destination.^^ 92 See Lehigh V. R. Co. v. Pennsylvania (1892) 145 U. S. 192, 203, 12 Sup. Ct. 806, 808, 809, 36 L. ed. 672; The Lottawanna (1874) 21 Wall. 558, 577, 22 L. ed. 654; Cooke, The Commerce Clause, pp. 91-93; Waite, Admiralty Jurisdiction and State Waters, 11 Mich. L. Rev. 580. 93 And does the grant of admiralty and maritime jurisdiction to the federal government (U. S. Constitution, Art. Ill, sec. 2) enable Congiess to limit the charges for carrying between two points within a state by means of a waterway which connects with the ocean but which is entirely within the state? See In re Garnett (1891) 141 U. S. 1, 12, 11 Sup. Ct. 840, 842, 35 L. ed. 631; The Robert W. Parsons (1903) 191 U. S. 17, 24 Sup. Ct. 18, 48 L. ed. 17: note 18 C. C. A. 349; United States v. Burling- ton & H. C. F. Co. (1884) 21 Fed. 331. 94 See notes 39, 40, supra. 95 The Interstate Commerce Act extends to interstate transportation which is partly by railroad and partly by water, and the act does not in terms require that either the railroad or the waterway be part of a "con- tinuous highway." See also New York v. Knight (1904) 192 U. S. 21, 26, 24 Sup. Ct. 202, 203, 48 L. ed. 325; New Y. C. & H. R. R. Co. v. Board of Chosen Freeholders (1913) 227 U. S. 248, 33 Sup. Ct. 269, 57 L. ed. 499. INTERSTATE AND INTRASTATE HIGHWAYS. 45 Safety appliance cases. 25. In addition to the continuous highway cases which we have just noted, there is also a recent case ^® in which the court, without referring to those cases, has decided that Congress may constitutionally require the equipment with safety appliances of all locomotives, cars and other similar vehicles which are used on any railroad which is a highway of interstate commerce, even though some of the vehicles may be used solely in local transportation. The court, however, gave no attention whatever to the question whether such interstate highway were a continu- ous interstate highway. And the opinion does not indi- cate any desire upon the part of the court to overrule the many earlier cases in which it has delimited the respec- tive powers of Congress and of the states over interstate rates and over local rates. 96 Southern Ry. Co. v. United States (1911) 222 U. S. 20, 32 Sup. Ct. 2, 56 L. ed. 72. See also Pedersen v. Delaware, L. & W. R. Co. (1913) 229 U. S. 146, 33 Sup. Ct. 648, 57 L. ed. 1125; Second Employers' Liability Cases— Mondou v. New Y., N. H. & H. R. Co. (1912) 223 U. S. 1, 32 Sup. Ct. 169, 56 L. ed. 327; Chicago J. Ry. Co. v. King (1911) 222 U. S. 222, 32 Sup. Ct. 79, 56 L. ed. 173; Interstate Com. Comn. v. Goodrich T. Co. (1912) 224 U. S. 194, 32 Sup. Ct. 436, 56 L. ed. 729. Compare Brinkmeier V. Missouri P. Ry. Co. (1912) 224 U. S. 268, 32 Sup. Ct. 412, 56 L. ed. 758; Baltimore & O. R. Co. v. Interstate Com. Comn. (1911) 221 U. S. 612, 31 Sup. Ct. 621, 55 L, ed. 878; cases in note 40, supra; article on Power of Congress to Require Cars Moving Intrastate Freight on a Railroad En- gaged in Interstate Traffic to be Equipped with Safety Appliances, 71 Cent. L. J. 423. CHAPTER II. THE DISTRIBUTION OF GOVERNMENTAL POWERS. INTRODUCTORY. 26. Distribution among three departments of government. 27. Federal and state problems distinct but similar. 28. Exceptions to broad general rules. 29. Distribution of powers not complete. 30. Local self-government. EXTENT OF POWER OF LEGISLATURE. 31. General extent of power. 32. Power to establish rates. 33. Power to change common law. 34. Position of court on rate-making. 35. Power to enact detailed regulations. 36. Some powers may be entrusted by legislature to other departments. 37. LIMITED POWER OF ADMINISTRATIVE ORGANS. DELEGATION OF POWER BY LEGISLATURE. 38. General principles. 39. Outline of position taken. 40. Discussion of state and federal authorities on rate-making. 41. Discussion of position of Supreme Court on rate-making. 42. Decisions of Supreme Court on delegation of power. 43. Ascertainment of facts. 44. Contingent legislation — bearing on general principles. 45. Contingent legislation as to rates. 46. Grants of discretion. 47. Possible differences in extent and character of regulation. 48. Do the statutes establish definite principles? EXTENT OF POWER OF COURTS. 49. General principles. 50. Distinction between judicial and legislative power over rates. 51. Judicial review of administrative orders establishing rates. 46 INTRODUCTORY. 47 INTRODUCTORY. Distribution among three departments of government. 26. The United States and the several states have by their respective constitutions made partial ^ distributions of the powers of those governments among three depart- ments of government. In so doing they have by implica- tion, and at times by express words, declared that an or- gan possessing the characteristics of one department shall not exercise powers which have been entnisted only to another department.^ It is this restraint which we shall consider in the present chapter. Federal and state problems distinct but similar. 27. Obviously, the distributive clauses of the Federal Constitution relate only to the federal government,^ and 1 See page 49, infra. 2Cooley, Constitutional Limitations, 7tli ed. 126; Cooley, Constitutional Law, Sd ed., 46; Black, Constitutional Law, 3d ed., p. 82; 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. 110, 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) 111 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 distri- bution of governmental 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 government. 3 The United States Supreme Court said in Satterlee v. Matthewson 48 THE DISTRIBUTION OF GOVERNMENTAL POWERS. the distributive clauses of the state constitutions relate only to the governments of the respective states. Yet whether we consider the power of an organ of the federal government or the power of an organ of a state govern- ment 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 constitu- tions which may prevent uniform answers to those prob- lems, and even under similar provisions different conclu- sions may be reached by the authorities of different jur- isdictions."* Exceptions to broad general rules. 28. 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 char- (1829) 2 Pet. 380, 413, 7 L. ed. 458, "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 Dall. 38G, 1 L. ed. 648; Randall v. Kreiger (1874) 23 Wall. 137, 147, 23 L. ed. 124; Prentis V. Atlantic C. L. Co. ( 1908) 211 U. S. 210, 225, 29 Sup. Ct. 67, 69, 53 L. ed. 150; Consolidated R. Co. v. Vermont (1908) 207 U. S. 541, 552, 28 Sup. Ct. 178, 181, 52 L. ed. 327; Michigan C. R. Co. v. Powers (1906) 201 U. S. 245, 294, 26 Sup. Ct. 459, 462, 463, 50 L. ed. 744; Carfer v. Caldwell (1906) 200 U. S. 293, 297, 26 Sup. Ct. 264, 265, 50 L. ed. 488; League v. Texas (1902) 184 U. S. 156, 161, 22 Sup. Ct. 475, 477, 46 L. ed. 478; Winchester & S. R. Co. V. Commonwealth, (1906) 106 Va. 264, 267, 269, 55 S. E. 692, 693, 694, 13 Va. L. Reg. 418; Bondy, The Separation of Governmental Powers (Columbia University Studies) 21; Mobile, J. & K. C. R. Co. v. Mississippi (1908) 210 U. S. 187, 202, 28 Sup. Ct. 650, 655, 52 L. ed. 1016; Claiborne Co. v. Brooks (1884) 111 U. S. 400, 410, 4 Sup. Ct. 489, 494, 28 L. ed. 470; Welch v. Swasey (1909) 214 U. S. 91, 104, 29 Sup. Ct. 667, 570, 53 L. ed. 923. 4 Prentis v. Atlantic C. L. Co. (1908) 211 U. S. 210, 29 Sup. Ct. 67, 53 L. ed. 150; Trustees v. Saratoga G., E. L. & P. Co. (1908) 191 N. Y. 123, 135, 136, 83 N. E. 693, 696, 18 L. R. A. N. S. 713, 720; People v. Cook (1907) 147 Mich. 127, 131, 132, 110 N. W. 514, 516; State v. Kline (1907) 50 Ore. 426, 430, 431, 93 Pac. 237, 239; Winchester & S. R. Co. v. Com- monwealth (1906) 106 Va. 264, 55 S. E. 692; Wheeler's Appeal (1877) INTRODUCTORY. 49 acter 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.^ But such constitutional exceptions, and even exceptions, which ap- pear in some constitutions, which directly affect rate reg- ulation, do not lessen the positiveness of the rule in un- excepted cases. Distribution of powers not complete. 29. It is, however, important that we notice that the distribution 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, 45 Conn. 306; Martin v. Oregon R. & N. Co. (1910) 58 Ore. 198, 113 Pae. 16; 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. 5 On the power of a legislature to appoint its o^vn 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 discussion in Board of Comrs. v. Gwin (1894) 136 Ind. 562, 36 N. E. 237, 22 L. R. A. 402; Board of Comrs. v. Stout (1893) 136 Ind. 53, 35 N. E. 683, 22 L. R. A. 398; 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, 3d ed., p. 85 et seq. ; In re Janitor of Supreme Court (1874) 35 Wis. 410; In re Chapman (1897) 166 U. S. 661, 17 Sup. Ct. 677, 41 L. ed. 1154; State v. Pierre (1908) 121 La. 465, 46 So. 574. And see 6 A. & E. Enc. of L., 2d ed., 1007; 21 Harv. L. Rev. 161; Board of Comrs. v. McGregor (1909) 171 Ind. 634, 87 N. E. 1. Com- pare the authorities cited in note 25, infra. The actual decision in Kilbourn V. Thompson (1880) 103 U. S. 168, 26 L. ed. 377, was simply that the fed- eral House of Representatives did not have authority to make the par- ticular investigation there considered. 50 THE DISTRIBUTION OF GOVERNMENTAL POWERS. be exercised by the legislature itself or be assigned by it to one of the other departments.^ Local self-government. 30. Moreover, the legislature may grant some self-gov- ernment to the localities.'^ In so doing it is not reassign- 6 See Cooley, Constitutional Law, Sd ed., 45, 46 ; Bendy, The Separation of Governmental Powers (Columbia University Studies) 79, 80; Stevens, Sources of the Constitution of the United States, 49; Sabre v. Rutland R. Co. (1913) Vt., 85 Atl. 693; Oregon R. & N. Co. v. Campbell (1909) 173 Fed. 958; Toncray v. Budge (1908) 14 Idaho, 621, 95 Pac. 26; Incorpor- ated 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. 110, 104 N. W. 709; Paul v. Gloucester County (1888) 50 N. J. L. 585, 611, 15 Atl. 272, 284, 1 L. R. A. 86; 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 the Justices (1885) 138 Mass. 601; sec. 30, infra; note 79, infra; and also Carroll v. Wright (1908) 131 Ga. 728, 740, 63 S. E. 260, 265; 21 Harv. L. Rev. 139. 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 25, infra. T Cooley, Constitutional Limitations, 7th ed., 165, 172, 263, 264; 8 Cyc. 837; Dec. Dig., Const. L., sec. 63; 6 A. & E. Enc. of L., 2d ed., 1027, 1024; 28 id., 160; Dillon, Municipal Corporations, 5th ed., sec. 573; Goodnow, The Principles of the Administrative Law of the United States, 37; and see Oberholtzer, The Referendum in America, 324, 332, 334; Sutherland, Statutory Construction, 2d ed., p. 170; State v. Donovan (1913) Wash., 130 Pac. 356; Lee Wilson & Co. v. W. R. Crompton B. & M. Co. (1912) 102 Ark., 146 S. W. 110; State v. Sanders (1912) 130 La. 272, 57 So. 924; State ex rel. Hunt v. Tausick (1911) 64 Wash. 69, 116 Pac. 651, 35 L. R. A. N. S. 802; Plinkiewisch v. Portland Ry., L. & P. Co. (1911) 58 Ore. 499, 115 Pac. 151; In re Pfahler (1906) 150 Cal. 71, 88 Pac. 270, 11 L. R. A. N. S. 1092. Compare Ex parte Farnsworth (1911) 61 Tex. Cr. 342, 135 S. W. 535; Elliott v. City of Detroit (1899) 121 Mich. 611, 84 N. W. 820; Bradshaw v. Lankford (1891) 73 Md. 428, 21 Atl. 66, 11 L. R. A. 582; Slinger v. Henneman (1875) 38 Wis. 504; Fournier v. Commis- sioners of Aroostook County (1912) 109 Me. 48, 82 Atl. 545; Cotteral v. Barker (1912) 34 Okla. 533, 126 Pac. 211; Burton v. Dupree (1898) 19 Tex. Civ. App. 275, 46 S. W. 272; In re Municipal Suffrage to Women (1894) 160 Mass. 586, 36 N. E. 488, 23 L. R. A. 113; but with the cases last cited see Commonwealth v. Kingsbury (1908) 199 Mass. 542, 85 N. E. 848; Graham v. Roberts (1908) 200 Mass. 152, 85 N. E. 1009. Congress may grant local, but only local, powers to the territories: see Stouten- INTRODUCTORY. 51 ing power which has been entrusted exclusively tO' itself, for such limited power has been constantly granted to lo- cal authorities from time immemorial, and the general language of the constitutions is interpreted in accord- ance with this custom, since contemporary history does not furnish any reason for thinking that those who adopt- ed 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.^ burgh V. Hennick (1889) 129 U. S. 141, 9 Sup. Ct. 256, 32 L. ed. 637; and also McCornick v. Western U. T. Co. (1897) 79 Fed. 449, 451, 38 L. R. A. 684; 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, 35 L. ed. 572) in sus- taining 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, 1 L. R. A, 86; 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, 36 L. ed. 294; Sutherland, Statutory Construction, 2d ed., p. 173; Oberholtzer, op. cit., 324, 328; Bryan v. Voss (1911) 143 Ky. 422, 136 S. W. 884; United States v. Richards (1910) 35 D. C. App. 540; McDonald V. Denton (1910) Tex. Civ. App., 132 S. W. 823; Evers v. Hudson (1907) 36 Mont. 135, 148, 92 Pac. 462, 466, 467; Fonts v. Hood River (1905) 46 Ore. 492, 81 Pac. 370, 1 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; cases in note 95, infra. On the other hand, it is submitted that delegations 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; United States v. Grimaud (1911) 220 U. S. 506, 516, 31 Sup. Ct. 480, 482, 483, 55 L. ed. 563; 19 Harv. L. Rev. 203; 20 Harv. L. Rev. 147.— On the rule as to local self-government see also discussion in section 44, infra. 8 People V. Provines (1868) 34 Cal. 520, 532; State v. City of Mankato 52 THE DISTRIBUTION OF GOVERNMENTAL POWERS. EXTENT OF POWER OF LEGISLATURE. General extent of power. 31. xVt the time of the American Eevolution the British Parliament had absolute power over the persons and po- litical institutions under British control, subject only to a veto-power.^ By the Revolution the state legislatures^^ (1912) 117 Minn. 458, 136 N. W. 264, 41 L. R. A. N. S. Ill; State v. Ure (1912) 91 Neb. 31, 135 N. W. 224; Eckerson v. City of Des Moines (1908) 137 Iowa, 452, 465, 115 N. W. 177, 182; Staude v. Board of Election Comrs. (1882) 61 Cal. 313, 322. See also State ex rel. Wilkinson v. Lane (1913) Ala., 62 So. 31; Commonwealth v. Collier (1905) 213 Pa. 138, 62 Atl. 567; Muhlenberg County v. Morehead (1898) 20 Ky. L. Rep. 376, 46 S. W. 484; Pennington v. Woolfolk (1880) 79 Ky. 13; State v. Keener (1908) 78 Kan. 649, 97 Pac. 860, 19 L. R. A. N. S. 615; Terre Haute v. Evans- ville & 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, 21 L. R. A. 529; Bondy, The Separation of Governmental Powers (Columbia University Studies) 179, 183; Goodnow, The Principles of the Administrative Law of the United States, 35-37; and cases there cited. Compare State v. Arm- strong (1907) 91 Miss. 513, 44 So. 809; Mayor v. Dechert (1870) 32 Md. 369; and also Trustees v. Saratoga G., E. L. & P. Co. (1908) 191 N, Y. 123, 134, 135, S3 N. E. 693, 696, 18 L. R. A. N. S. 713, 719. 9 See Blackstone, Commentaries, I, *91, *160-*162; The Case of Captain Streater (1653) 5 How. State Trials, 365, 386, 387; Lee v. Bude & T. J. Ry. Co. (1871) L. R. 6 C. P. 576, 582; Courtney, The Working Constitu- tion of the United Kingdom, 4; Dicey, The Law of the Constitution, 7th ed., 58 et seq. ; Lowell, The Government of England, I, 9; Hurtado v. Cali- fornia (1884) 110 U. S. 516, 531, 4 Sup. Ct. Ill, 292, 119, 28 L. ed. 232; Slaughter House Cases (1872) 16 Wall. 36, 65, 21 L. ed. 394. That veto- power has not been exercised since 1707: Anson, The Law and Custom of the Constitution, 3d ed., I, 301. 10 "The governments of the states possess all the powers of the Parlia- ment of England, except such as have been delegated to the United States or reserved by the people. The reservations by the people are shown in the prohibitions of the constitutions:" Munn v. Illinois (1876) 94 U. S. 113, 124, 24 L. ed. 77. "The legislative power is the supreme authority except as limited by the constitution of the state, and the sovereignty of the peo- ple is exercised through their representatives in the legislature unless by the fundamental law power is elsewhere reposed:" McPherson v. Blacker (1892) 146 U. S. 1, 25, 13 Sup. Ct. 3, 7, 36 L. ed. 869. "In a free repre- sentative government nothing is more fundamental than the right of the people through their appointed servants to govern themselves in accord- ance with their own will, except so far as they have restrained themselves EXTENT OF POWER OF LEGISLATURE. 53 acquired similar power over the persons and political in- stitutions of their states, subject to gubernatorial veto, although constitutions soon limited their powers and placed some powers in the hands of other governmental organs beyond the reach of legislative exercise or con- trol. And while Congress can deal only with subject- by constitutional limits specifically established, and that in our peculiar dual form of government nothing is more fundamental than the full power of the state to order its own affairs and govern its own people, except so far as the Federal Constitution expressly or by fair implication has with- drawn that power. The power of the people of the states to make and alter their laws at pleasure is the greatest security for liberty and justice, this court has said:" Twining v. New Jersey (1908) 211 U. S. 78, 106, 29 Sup. Ct. 14, 22, 53 L. ed. 97. See also Coffey v. County of Harlan (1907) 204 U. S. 659, 662, 27 Sup. Ct. 305, 306, 51 L. ed. 666; Dorman v. State (1859) 34 Ala. 216, 232-234; 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; Sutherland, 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, 3d ed., p. 72; Sedgwick, Construction of Statutory and Constitutional Law, 2d ed., 154; note 126 in Chap. 4, infra; 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; 21 Harv. L. Rev. 383; 12 Harv. L. Rev. 469; 9 Mich. L. Rev. 108; Wulf v. Kansas City (1908) 77 Kan. 358, 361, 367, 94 Pac. 207, 208, 210; State v. Missouri P. Ry. Co. (1907) 76 Kan. 467, 489, 92 Pac. 606, 613; Ratcliff v. Wichita U. S. Co. (1906) 74 Kan. 1, 16, 86 Pac. 150, 155, 6 L. R. A. N. S. 834; State v. Fountain (1908) 6 Pennewill (Del.) 520, 528, 69 Atl. 926, 930; Harder's F. S. & V. Co. V. Chicago (1908) 235 111. 58, 68, 85 N. E. 245, 247; dissenting opinion in Abbott v. Beddingfield (1899) 125 N. C. 256, 268, 272, 34 S. E. 412, 415, 416; Century Digest, Const. Law, II, B, Grant or limitation of power; Dec. Digest, Const. Law, sees. 25, 26, 50; House v. Mayes (1911) 219 U. S. 270, 282, 31 Sup. Ct. 234, 236, 55 L. ed. 213; Halter v. Nebraska (1907) 205 U. S. 34, 40, 27 Sup. Ct. 419, 421, 51 L. ed. 696; Northwestern N. L. I. Co. V. Riggg (1906) 203 U. S. 243, 253, 27 Sup. Ct. 126, 128, 51 L. ed. 168. On the effect of a grant of power to legislate see notes 12, 13, infra. With the authorities 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; and the absolutely indefensible position taken in Freund, Police Power, pp. 132, 133. — The subject which we are considering is discussed more fully in sections 92-104, infra. 54 THE DISTRIBUTION OF GOVERNMENTAL POWERS. matters entrusted to it,^^ except in regard to the terri- tories,^^ as to such subject-matters its general power is the same as that of state legislatures over subject-matters not removed from their control, ^'^ though it also is under express restrictions and some governmental powers have 11 Hodges V. United States (1906) 203 U. S. 1, 16, 27 Sup. Ct. 6, 8, 51 L. ed. 65; United States v. Harris (1883) 106 U. S. 629, 635, 1 Sup. Ct. 601, 606, 27 L. ed. 290: Kansas v. Colorado (1907) 206 U. S. 46, 81, 87, 88, 89, 92, 27 Sup. Ct. 655, 661, 663, 664, 665, 51 L. ed. 950; Keller v. United States (1909) 213 U. S. 138, 29 Sup. Ct. 470, 53 L. ed. 737. See also House v. Mayes (1911) 219 U. S. 270, 281, 31 Sup. Ct. 234, 236, 55 L. ed. 213; Jacobson v. Massachusetts (1905) 197 U. S. 11, 22, 25 Sup. Ct. 358, 359, 49 L. ed. 643. Compare The Lottawanna (1874) 21 Wall. 558, 576, 577, 22 L. ed. 654, concerning a power which seems to have been granted simply by implication. 12 El Paso & N. E. R. Co. v. Gutierrez (1909) 215 U. S. 87, 30 Sup. Ct. 21, 54 L. ed. 106; National Bank v. County of Yankton (1879) 101 U. S. 129, 25 L, ed. 1046; Utter v. Franklin (1899) 172 U. S. 416, 423, 19 Sup. Ct. 183, 186, 43 L. ed. 498; Mormon Church v. United States (1890) 136 U. S. 1, 42, 43, 10 Sup. Ct. 792, 802, 803, 34 L. ed. 478. See also Okla- homa V. Atchison, T. & S. F. Ry. Co. (1911) 220 U. S. 277, 285, 31 Sup. Ct. 434, 435, 55 L. ed. 465; De Lima v. Bidwell (1901) 182 U. S. 1, 196, 21 Sup. Ct. 743, 753, 45 L. ed. 1041; Shively v. Bowlby (1894) 152 U. S. 1, 48, 14 Sup. Ct. 548, 566, 38 L. ed. 331; Patterson, The United States and the States Under the Constitution, 2d ed., pp. 8, 9. 13 United States v. Chandler-Dunbar W. P. Co. (1913) 229 U. S. 53, 62, 33 Sup. Ct. 667, 671, 672, 57 L. ed. 1063; Lewis B. P. O. C. Co. v. Briggs (1913) 229 U. S. 82, 89, 33 Sup. Ct. 679, 681, 57 L. ed. 1083; McDermott V. Wisconsin (1913) 228 U. S. 115, 128, 33 Sup. Ct. 431, 433, 57 L. ed. 754; Hoke V. United States ( 1913 ) 227 U. S. 308, 323, 33 Sup. Ct. 281, 284, 57 L. ed. 523; Flint v. Stone Tracy Co. (1911) 220 U. S. 107, 153, 154, 31 Sup. Ct. 342, 350, 55 L. ed. 389; Louisville & N. R. Co. v. Mottley (1911) 219 U. S. 467, 480, 31 Sup. Ct. 265, 269, 55 L. ed. 297; Atlantic C. L. R. Co. v. River- side Mills (1911) 219 U. S. 186, 202, 31 Sup. Ct. 164, 169, 55 L. ed. 167; Burton v. United States (1906) 202 U. S. 344, 366, 367, 26 Sup. Ct. 688, 693, 50 L. ed. 1057; Lottery Case— Champion v. Ames (1903) 188 U. S. 321, 353, 23 Sup. Ct. 321, 325, 47 L. ed. 492; Chinese Exclusion Case (1889) 130 U. S. 581, 603, 604, 9 Sup. Ct. 623, 629, 32 L. ed. 1068; Juilliard v. Greenman (1884) 110 U. S. 421, 447-450, 4 Sup. Ct. 122, 129-131, 28 L. ed. 204; Gib- bons v. Ogden (1824) 9 Wheat. 1, 196, 197, 6 L. ed. 23; Patterson, The United States and the States Under the Constitution, 2d ed., p. 17; McMur- trie. Observations on Mr. George Bancroft's Plea for the Constitution, 24, 25. EXTENT OF POWER OF LEGISLATUEE. 55 been placed beyond its exercise or control. In other words, the state legislatures, over subject-matters not withdrawn from their control, and Congress, over sub- ject-matters entrusted to it, have all governmental powers not entrusted by the constitutions to other organs of gov- ernment and not withdrawn from the control of those legislative bodies by other provisions of the constitu- tions. Power to establish rates. 32. It is, therefore, clear that legislative bodies may determine the principles upon which railroad charges shall be based and may themselves ordain specific sched- ules of rates for future transportation, unless those pow- ers, or either of them, have been entrusted exclusively to another organ of government by the constitutional pro- visions which assign judicial powers to the courts or by those which assign administrative powers to administra- tive organs, or unless the legislatures are restrained by other constitutional provisions which we need not here consider. The question whether a legislature in making enact- ments of the character referred to would entrench upon the power of an administrative organ has apparently never arisen, and it is doubtful whether such a conten- tion will ever be made. We must, however, consider the question whether legislative enactments of that charac- ter 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.^^ But there is a clear distinction between applying 14 stern v. Metropolitan T. & T. Co. (1897) 46 N. Y. Supp. 110, 19 N. Y. App. Div. 316; Cook & Wheeler v. Chicago, R. I. & P. Ry. Co. (1890) 56 THE DISTRIBUTION OF GOVERNMENTAL POWERS. an existing rule of law (in that ease the common law) and adopting a new and possibly different rule of law for re- lations which may exist in the future. ^^ The legislature, in regulating 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 fu- ture a rule which supersedes that law. Power to change common law. 33. And certainly the legislature may change the com- mon law.^® The only legal restrictions upon legislative 81 Iowa, 551, 46 N. W. 1080, 9 L. R. A. 764; Menacho v. Ward (1886) 27 Fed. 529. See also Salt R. V. C. Co. v. Nelssen (1906) 10 Ariz. 9, 85 Pac. 117, 12 L. R. A. N. S. 711. 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 it cannot escape this duty by charging whatever it pleases. See also Allnutt v. Inglis (1810) 12 East, 527. In Abilene C. 0. Co. v. Texas & P. Ry. Co. (1905) 38 Tex. Civ. App. 366, 85 S. W. 1052, the common law rule was applied to interstate ship- ments, but the decision was reversed, Texas & P. Ry. Co. v. Abilene C. O. Co. (1907) 204 U. S. 426, 27 Sup. Ct. 350, 51 L. ed. 553, on the ground that the interstate commerce act had altered the method of securing relief from excessive charges. 15 See note 19, infra. 16 See Munn v. Illinois (1876) 94 U. S. 113, 134, 24 L. ed. 77; Texas & P. Ry. Co. V. Abilene C. O. Co. (1907) 204 U. S. 426, 27 Sup. Ct. 350, 51 L. ed. 553; St. Louis, L M. & S. Ry. Co. v. Taylor (1908) 210 U. S. 281, 294, 295, 28 Sup. Ct. 616, 621, 52 L. ed. 1080; Wilmington S. M. Co. v. Fulton (1907) 205 U. S. 60, 74, 27 Sup. Ct. 412, 417, 51 L. ed. 708; West V. Louisiana (1904) 194 U. S. 258, 262, 24 Sup. Ct. 650, 652, 48 L. ed. 965; Barrett v. Indiana (1913) 229 U. S. 26, 30, 33 Sup. Ct. 692, 693, 57 L. ed. 1050; Second Employers' Liability Cases — Mondou v. New Y., N. H. & H. R. Co. (1912) 223 U. S. 1, 50, 32 Sup. Ct. 169, 175, 56 L. ed. 327; Atlantic C. L. R. Co. V. Riverside Mills (1911) 219 U. S. 186, 31 Sup. Ct. 164, 55 L. ed. 167; Noble State Bank v. Haskell (1911) 219 U. S. 104, 113, 31 Sup. Ct. 186, 188, 55 L. ed. 112; Western U. T. Co. v. Commercial M. Co. (1910) 218 U. S. 406, 417, 31 Sup. Ct. 59, 62, 54 L. ed. 1088; Grenada L. Co. V. Mississippi (1910) 217 U. S. 433, 441, 30 Sup. Ct. 535, 539, 54 L. ed. 826; Slaughter House Cases (1872) 16 Wall. 36, 65, 66, 21 L. ed, 394 (which fully answers dissenting opinion in that case) ; Dilworth v. Schuyl- kill I. L. Co. (1908) 219 Pa. 527, 530, 69 Atl. 47, 48; Ivy v. Western U. EXTENT OF POWER OF LEGISLATURE. 57 action are those imposed by the constitutions. If a prin- ciple of the common law has been inserted in the consti- tutions it is binding upon the legislatures not as a prin- ciple of the common law but as a provision of the consti- tutions. And the fact that courts enforce compliance T. Co. (1908) 165 Fed. 371, 376; Sutherland v. Governor (1874) 29 Mich. 320, 325, 326; Blackstone, Commentaries, I, *89; 6 A. & E. Enc. of L., 2d ed., 1034, 1035; notes 9 and 10, supra; and also Pound, Common Law and Legislation, 21 Harv. L. Rev. 383; The Lottawanna (1874) 21 Wall. 558, 577. Compare note 165 in Chapter 4, infra, and the unsound position taken in Pope, Municipal Contracts and Rate Regulation, 16 Harv. L. Rev. 1, 20, 21 ; Fenwick, Charter Contracts and the Regulation of Rates, 9 Mich. L. Rev. 225, 227. In Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 397, 14 Sup. Ct. 1047, 1054, 38 L. ed. 1014, the court, after saying correctly, "It is doubtless true, as a general proposition, that the formation of a tariff of charges for the transportation by a common carrier of persons or property is a legislative or administrative rather than a judicial func- tion," 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 juris- diction to inquire into that matter and to award to the shipper any amount exacted from him in excess of a reasonable rate; and also in a reverse case to render judgment in favor of the carrier for the amount found to be a reasonable charge. The province of the courts is not changed, nor the limits of judicial inquiry altered, because the legislature instead of the carrier prescribes tlie rates." This reference to the common law as fur- nishing a ground for judicial inquiry into the propriety of rates named by a governmental authority is clearly inappropriate. 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, 33 L. ed. 970, is likewise unsound. And the same comment may be made on statements in Ex parte Young (1908) 209 U. S. 123, 147, 148, 166, 28 Sup. Ct. 441, 448, 449, 456, 52 L. ed. 714, 13 L. R. A. N. S. 932, 942, 950; Missouri P. Ry, Co. v. Tucker (1913) 230 U. S. 340, 33 Sup. Ct. 961, 57 L. ed. 1507. As showing the unsoundness of these reasons see Noyes, American Railroad Rates, 212, note, 250; Smalley, Railroad Rate Control (Publications of the American Economic Assn.) 48, 49, 50, 25; 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, 43 L. ed. 1154; Texas & P. Ry. Co. v. Abilene C. 0. Co. (1907) 204 U. S. 426, 26 Sup. Ct. 351, 51 L. ed. 553; Thompson, Private Corporations, 1st ed., p. 4231, note; authorities cited in notes 17, 18, 19, infra; sees. 49, 50, 51, infra; note 165 in Chapter 4, infra. Compare Pope, Municipal Contracts and Rate Regulation, 16 Harv. L. Rev. 1, 20, 21; Fenwick, Charter Contracts and the Regulation of Rates, 9 Mich. L. Rev. 225, 227. 58 THE DISTRIBUTION OF GOVERNMENTAL POWERS. with some constitutional provisions certainly does not show that rate regulation is judicial in its nature.^"^ Position of court on rate-making. 34. Indeed, the court itself has said expressly that "the function of rate-making is purely legislative in its character, and this is true, whether it is exercised directly by the legislature itself or by some subordinate or ad- ministrative body, to whom the power of fixing rates in detail has been delegated. The completed act derives its authority from the legislature and must be regarded as an exercise of the legislative power." ^^ ''A judicial in- quiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws sup- posed already to exist. That is its purpose and end. 17 The court of last resort said in Monongahela N. Co. v. United States (1893) 148 U. S. 312, 327, 13 Sup. Ct. 622, 626, 37 L. ed. 463, that the amount of compensation to which the owner of property taken by the fed- eral 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 (see Bauman v. Ross (1897) 167 U. S. 548, 593, 17 Sup. Ct. 966, 983, 42 L. ed. 270, and cases there cited, which are in direct opposition to the statement of tlie court in the Monongahela N. Co. case) and that in any event the statement is inapplicable to rate regu- lation. Conceding that if the owner be not given what the court considers just compensation the court may declare the taking unconstitutional, it certainly does not follow that the court may fix the amount of compen- sation 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 Avith its extremest language, we should still liave many earlier and later declara- tions by the same court that the prescribing of future rates is a legislative or administrative act. See, e. g., Chicago, M. & St. P. Ry. Co. v. Tomp- kins (1900) 176 U. S. 167, 173, 20 Sup. Ct. 336, 338, 44 L. ed. 417, and notes 18, 19, 47, 61 and 62, infra. iSKnoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 8, 29 Sup. Ct. 148, 150, 53 L. ed. 371. EXTENT OF POWER OF LEGISLATURE. 59 Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future, and therefore is an act legislative and not judicial in kind. ' ' ^^ Power to enact detailed regulations. 35. Moreover, it must be noted that the constitutional provisions now under consideration do not oblige the leg- islature to state merely general principles and leave to the courts the statement of the application of those prin- ciples to particular circumstances which may exist there- after. The legislature may do so, unquestionably, but it is not obliged to do so. The power of legislative bodies to enact detailed legislation, unless expressly forbidden by other provisions of the constitutions, is too well recog- i9Prentis v. Atlantic C. L. Co. (1908) 211 U. S. 210, 226, 29 Sup. Ct. 67, 69, 53 L. ed. 150. See also Ross v. Oregon (1913) 227 U. S. 150, 163, 33 Sup. Ct. 220, 223, 57 L. ed. 458; Interstate Com. Comn. v. Chicago, R. L & P. Ry. Co. (1910) 218 U. S. 88, 110, 30 Sup. Ct. 651, 659, 54 L. ed. 946; Home Tel. Co. v. Los Angeles (1908) 211 U. S. 265, 271, 278, 29 Sup. Ct. 50, 51, 54, 53 L. ed. 176; Honolulu R. T. & L. Co. v. Hawaii (1908) 211 U. S. 282, 29 Sup. Ct. 55, 53 L. ed. 186; San Diego L. & T. Co. v. Jasper (1903) 189 U. S. 439, 440, 23 Sup. Ct. 571, 47 L. ed. 892; McChord v. Louisville & N. R. Co. (1902) 183 U. S. 483, 495, 22 Sup. Ct. 165, 169, 46 L. ed. 289; Interstate Com. Comn. v. Alabama M. Ry. Co. (1897) 168 U. S. 144, 162, 18 Sup. Ct. 45, 47, 42 L. ed. 414; Interstate Com, Comn. v. Cincinnati, N. O. & T. P. Ry. Co. (1897) 167 U. S. 479, 499, 500, 501, 505, 606, 511, 17 Sup. Ct. 896, 900, 901, 902, 903, 905, 42 L. ed. 243; authorities at end of note 16, supra; notes 62, 63, infra; sees. 51, 60, infra; 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; Gulf C. Co. v. Harris, Cortner & Co. (1908) 158 Ala. 343, 48 So. 477, 24 L. R. A. N. S. 399; Shephard v. City of Wheeling (1887) 30 W. Va. 479, 4 S. E. 635. Cases sustaining legisla- tive regulation are cited in Atlantic C. L. R. Co. v. North Carolina Corp. Comn. (1907) 206 U. S. 1, 19, 27 Sup. Ct. 585, 591, 51 L. ed. 933. Com- pare People ex rel. Central P., N. & E. R. Co. v. Willcox ( 1909) 194 N. Y. 383, 87 N. E. 517. 60 THE DISTRIBUTION OF GOVERNMENTAL POWERS. nized to be open to dispute.^*^ If the legislature does not attempt to determine whether the conduct of individuals complies with regulations which it has laid down, it does not infringe upon any power which is bestowed exclu- sively upon the courts by the constitutional provisions which grant to them judicial power. Some powers may be entrusted by legislature to other de- partments. 36. In addition to the regulative power which may be exercised only by the legislature^^ (except in so far as that bodj^ authorizes local self-government )2^ the legislature possesses powers which other organs of government may exercise 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,-^ and it may, within limits which we need not here consider, make regulations concerning the internal organization and methods of operation of both adminis- 20 Central L. Co. v. South Dakota (1912) 226 U. S. 157, 160, 33 Sup. Ct. 66, 67, 57 L. ed. 164; Flint v. Stone Tracy Co. (1911) 220 U. S. 107, 158, 173, 31 Sup. Ct. 342, 352, 358, 55 L. ed. 389; United States v. Delaware & H. Co. (1909) 213 U. S. 366, 417, 29 Sup. Ct. 527, 539, 53 L. ed. 836; Magoun v. Illinois T. & S. Bank (1898) 170 U. S. 283, 294, 18 Sup. Ct. 594, 599, 42 L. ed. 1037; Maynard v. Hill (1888) 125 U. S. 190, 8 Sup. Ct. 723, 31 L. ed. 654; Watkins v. Lessee of Holman (1842) 16 Pet. 25, 10 L. ed. 873; Lessee of Livingston v. Moore (1833) 7 Pet. 469, 8 L. ed. 751; Black, Constitutional Law, 3d ed., p. 369; Goodnow, The Principles of the Administrative Law of the United States, 28, 40, 331, 332; State v. Wolf (1907) 145 N. C. 440, 59 S. E. 40; Wheeler's Appeal (1877) 45 Conn. 306, 319; Southern I. Ry. Co. v. Railroad Comn. (1909) 172 Ind. 113, 127, 87 N. E. 966, 971. 21 See note 29, infra. 22 See note 7, supra. 23 See note 6, supra, and the discussion of delegation of power, infra. EXTENT OF POWER OF LEGISLATURE. 61 trative ^^ and judicial ^^ organs, or it may entrust that power to the organs concerned.^ ^ 24 See Gtoodnow, The Principles of the Administrative Law of the United States, 123, 125. 25 Brown on Jurisdiction, sec. 14; Wigmore on Evidence, sees. 7, 1353, 1354; Bondy, The Separation of Governmental Powers (Columbia Univer- sity Studies) 31, 100; In re Saddler (1913) Okla., 130 Pac. 906; Gary v. Mine & S. S. Co. ( 1912 ) 53 Colo. 556, 129 Pac. 230 ; Banks v. State ( 1905 ) 124 Ga. 15, 52 S. E. 74, 2 L. R. A. N. S. 1007; State v, Barrett (1905) 138 N. C. 630, 50 S. E. 506, 1 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 Hoopes v. Bradshaw (1911) 231 Pa. 485, 80 Atl. 1098; State V. Potello (1911) 40 Utah, 119 Pac. 1023; State v. Converse (1911) 40 Uiah, 119 Pac. 1030; Mobile, J. & K. C. R. Co. v. Turnipseed (1910) 219 U. S. 35, 43, 31 Sup. Ct. 136, 138, 55 L. ed. 78; Bailey v. State (1909) 161 Ala. 75, 48 So. 498; Board of Comrs. v. McGregor (1909) 171 Ind. 634, 87 N. E. 1; State v. Pierre (1908) 121 La. 465, 46 So. 574; Lew v. Bray (1908) 81 Conn. 213, 70 Atl. 628; Sprintz v. Saxton (1908) 125 N. Y. App. Div. 908, 110 N. Y. Supp. 585; Memphis St. Ry. Co. v. Byrne (1907) 119 Tenn. 278, 320, 321, 104 S. W. 460, 470; People v. Hayne (1890) 83 Cal. Ill, 23 Pac. 1, 7 L. R. A. 348; Brady v. Carteret R. Co. (1907) 70 N. J. E. 748, 67 Atl. 606, 8 L. R. A. N. S. 866. Compare In re Day (1899) 181 111. 73, 54 N. E. 646, 50 L. R. A. 519; Herndon v. Im- perial F. I. Co. (1892) 111 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) 13 Cal. 24; Calvert v. Carstarphen (1903) 133 N. C. 25, 45 S. E. 353; Ex parte Griffiths (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. 26Wayman v. Southard (1825) 10 Wheat. 1, 42, 43, 46, 6 L. ed. 253; Bank of the U. S. v. Halstead (1825) 10 Wheat. 51, 61, 6 L. ed. 264; Hud- son V. Parker (1895) 156 U. S. 277, 15 Sup. Ct. 450, 39 L. ed. 424; Cooke V. Avery (1893) 147 U. S. 375, 13 Sup. Ct. 340, 37 L. ed. 209; Morton v. Pusey (1908) 237 111. 26, 86 N. E. 601; People v. Ahearn (1908) 193 N. Y. 441, 86 N. E. 474; Smith v. State Board of Medical Examiners (1908) 140 Iowa, 66, 69, 72, 73, 117 N. W. 1116, 1117, 1118; 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; State V. Adams Ex. Co. (1896) 66 Minn. 271, 68 N. W. 1085, 38 L. R. A. 225; 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) 111 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 G, supra. 62 THE DISTRIBUTION OF GOVERNMENTAL POWERS. LIMITED POWER OF ADMINISTRATIVE ORGANS. 37. Administrative organs possess only the powers which have been entrusted to them by a constitution or by legislation.^^ Passing over clear grants of power by the constitutions 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 concerning merely administrative bodies may be inapplicable to such organs, and, conversely, de- cisions concerning them may be inapplicable to merely administrative organs, we shall inquire simply what por- tion of the power which may be exercised by the legisla- ture may be granted by the legislature to administrative bodies without infringing the distribution of powers which is usually made by the constitutions. DELEGATION OF POWER BY LEGISLATURE. General principles. 38. The courts have frequently determined that, except with reference to local affairs,^ ^ a legislature may not 27 See Interstate Com. Comn. v. Cincinnati, N. O. & T. P. Ry. Co. (1897) 167 U. S. 479, 17 Sup. Ct. 896, 42 L. ed. 243; Interstate Com. Comn. v. Alabama M. Ry. Co. (1897) 168 U. S. 144, 18 Sup. Ct. 45, 42 L. ed. 414; United States v. George (1913) 228 U. S. 14, 22, 33 Sup. Ct. 412, 415, 57 L. ed. 712; Southern P. Co. v. Interstate Com. Comn. (1911) 219 U. S. 433, 444, 31 Sup. Ct. 288, 291, 55 L. ed. 283; Siler v. Louisville & N. R. Co. (1909) 213 U. S. 175, 29 Sup. Ct. 451, 53 L. ed. 753; State ex rel. Ellis V. Atlantic C. L. R. Co. (1906) 51 Fla. 578, 40 So. 875; 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, 36 L. ed. 591; Morrill v. Jones (1883) 106 U. S. 466, 1 Sup. Ct. 423, 27 L. ed. 267; 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; Cumberland T. & T. Co. v. Memphis (1912) 200 Fed. 657. 28 On the power of the legislature to allow localities to govern them- selves in some respects, see note 7, supra. That administrative and judi- DELEGATION OF POWER BY LEGISLATURE. 63 delegate its power of deciding questions of public pol- icy,^^ and under this rule the provision of an act by which cial organs may be allowed to make regulations concerning their own internal organization and methods of operation (see note 7, supra) hardly seems to he an exception to the general rule. 29 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. Rail- road 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, 111 N. W. 289, 10 L. R. A. N. S. 250; Brenke v. Borough of Belle Plaine (1908) 105 Minn. 84, 117 N. W. 157; Vallelly v. Board of Park Comrs. (1907) 16 N. D. 25, 111 N. W. 615, 15 L. R. A. N. S. 61; United States V. Matthews (1906) 146 Fed. 306; People v. Board of Election Comrs. (1906) 221 111. 9, 77 N. E. 321; Rose v. State (1906) Ala., 40 So. 951; Fite V. State (1905) 114 Tenn. 646, 88 S. W. 941, 1 L. R. A. N. S. 520; State V. Budge (1905) 14 N. 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. 1110; 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, 52 L. R. A. 287; Johnston C. Assn. V. Parker (1899) 45 N. Y. App. Div. 55, 60 N. Y. Supp. 1015; In- habitants of Township of Bernards v. Allen (1898) 61 N. J. L. 228, 39 Atl. 716; In re Incorporation of North Milwaukee (1896) 93 Wis. 616, 67 N. W. 1033, 33 L. R. A. 645; Dowling v. Lancashire I. Co. (1896) 92 Wis. 63, 65 N. W. 738, 31 L. R. A. 112; 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. L 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) 1 Iowa, 522; Barto v. Himrod (1853) 8 N. Y. 483; State v. Field (1853) 17 Mo. 529. See also St. Louis M. B. T. Ry. Co. V. United States (1911) 188 Fed. 191; Village of Little Chute v. Van Camp (1908) 136 Wis. 526, 117 N. W. 1012; 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 Government, sec. 142) declared broadly that a legislature may not transfer the power of making laws, while it may cast some light upon the intentions of those who long afterwards adopted the American constitutions, does not except for that purpose have any value whatever. Concerning Locke's book see also Stephen, Horae Sabbaticae, II, 155, 156. 64 THE DISTKIBUTION OF GOVERNMENTAL POWERS. a state legislature sought to empower a railroad commis- sion to regulate rates has been declared unconstitu- tional.^'' In this chapter the validity of the rule will be assumed.^ ^ 30 Central of Ga. Ry. Co. v. Pailroad Comn. of Alabama (1908) 161 Fed. 925, 985. The provision was that "in all cases where any classification of railroads or of any articles of freight or any maximum rates or charges for the transportation of passengers or freight over any railroad in this state, have been, or may hereafter be prescribed by statute, or any pre- vailing rates or charges for such transportation have been, or may here- after be, by statute made the maximum rates or charges, the Railroad Commission of Alabama shall have the power and is hereby authorized to change such classifications and such rates or charges, or any of them, from time to time as conditions may, in its judgment render expedient or proper so to do, whether the effect of such changes be to increase or reduce any of the rates or charges, and to establish and order to be put in force in lieu thereof any new classification or rate or charge which it may deem reasonable and proper; and the classifications, rates or charges so estab- lished by it shall be the lawful classifications, rates or charges until further changed by said Railroad Commission." 31 The rule can be based only upon the purpose of those who, in adopting the constitutions, distributed governmental powers. This purpose 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 dele- gate his powers, although the state legislatures, and apparently Congress, resemble Parliament more closely than they resemble mere agents. And, since the legislature may delegate some of its powers: see notes 6, 26, supra, and 33, 65, 82, et seq., infra, the common law does not furnish a complete interpretation of the provisions. — The men who adopted the various con- stitutions were influenced by a theory which was based upon an apprecia- tive generalization of governmental conditions which, as some of those who adopted the constitutions realized, did not fully accord with that generali- zation; and in many of the constitutions it is not clear how closely those who adopted them intended that theory to be followed in interpreting gen- eral provisions. See The Federalist, No. 47, et seq.; Stevens, Sources of the Constitution of the United States, 41, 42, 47, 48, 49, 57, 154, 155, 177. With the exception of Marr v. Enloe (1830) 1 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 actually 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 consist- ently and intelligently. To an amazing extent the decisions are either based upon fictions or based upon cases which do not apply or the opin- DELEGATION OF POWER BY LEGISLATURE. 65 On the other hand, although rate regulation may in- volve questions of public policy, ^^ there are decisions that at least some specific rates named by commission are valid.^^ ions do not notice distinctions which are admitted by all who consider such distinctions. In spite of frequent declarations by the courts that legis- lative power may not be delegated, such opinions and decisions cast some doubt upon the propriety of their ever declaring legislation unconstitu- tional 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 invalid, for the right of the 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 lan- guage of Gibson, J., dissenting, in Eakin v. 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, 1 L. R. A. 744, 750, "After all, the question is one more of form than of substance. The vital question with both shipper and car- rier 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, considered the forms of government important: see note 12 in Chapter 4, infra. 32 See sees. 47, 48, infra. 33 State ex rel. Webster v. Superior Court (1912) 67 Wash. 37, 120 Pac. 861; Louisville & N. R. Co. v. Interstate Com. Comn. (1910) 184 Fed. 118; 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; McWhorter v. Pensacola & 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, 11 So. 226; and see Chicago, I. & L. Ry. Co. v. Railroad Comn. (1911) 175 Ind. 630, 644, 645, 95 N. E. 364, 369; Trustees V. Saratoga G., E. L. & P. Co. (1908) 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. N. S. 713; Stone v. Yazoo & M. V. R. Co. (1885) 62 Miss. 607, 645, 21 A. & E. R. Cas. 17; People v. Harper (1878) 91 111. 357; Southern Ry. Co. V. Hunt (1908) 42 Ind. App. 90, 83 N. E. 721; Chicago, I. & L. Ry. Co. V. Railroad Comn. (1906) 38 Ind. App. 439, 450, 451, 78 N. E. 338, 342, 79 N. E. 520. It must be noted that in Tallassee F. M. Co. v. Commis- 66 TIIE DISTRIBUTION OF GOVERNMENTAL POWERS. Outline of position taken. 39. Calling attention to these two lines of cases, it is submitted that the legislature is the only governmental body which may determine the principles upon which rates shall be regulated, and that while the legislature, sioners' Court (1908) 158 Ala. 263, 48 So. 354, the power was granted to a local body, as to which see sec. 30, supra. 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: Oregon R. & N. Co. V. Campbell (1909) 173 Fed. 958; Chicago, B. & 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, 1 L. R. A. 744; Tift v. Southern Ry. Co. (1905) 138 Fed. 753, aflirmed, Southern Ry. Co. v. Tift (1907) 206 U. S. 428, 27 Sup. Ct. 709, 51 L. ed. 1124; 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. Free- mont, E. & M. V. R. Co. (1888) 23 Neb. 117, 36 N. W. 305 (1887) 22 Neb. 313, 35 N. W. 118, 32 A. & E. R. Cas. 426. The question of delegation of power was discussed only in the Illinois case, the cases in 173 Fed. and 35 Fed., and in State v. Missouri P. Ry. Co. (1907) 76 Kan. 467, 92 Pac. 606; Atlantic E. Co. v. Wilmington & W. R. Co. (1892) 111 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). In Minneapolis, St. P. & S. S. M. Ry. Co. V, Railroad Comn. (1908) 136 Wis. 146, 116 N. W. 905, 17 L. R. A. N. S. 821, the court sustained a statute which empowered the commission to determine what were reasonable rates. The point at issue in the case did not involve rates, although the court discussed that question. The order of the commission was prima facie evidence (136 Wis. at 158, 116 N. W. at 909, 17 L. R. A. N. S. at 828) but the court could not inquire whether the rate, regulation or service fixed by the commission were just and rea- sonable but only whether the order of the commission were unreasonable (136 Wis. at 165, 116 N. W. at 912, 17 L. R. A. N. S. at 831).— Portland fe 0. C. R. Co. V. Grand T. Ry. Co. (1858) 46 Me. 69; Vermont & M. R. Co. v. Fitchburg R. Co. (1852) 63 Mass. (9 Cush.) 369, were far diflferent from the above: in each case the couil, under statutory authority, ap- pointed 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 and Wyman, Railroad Rate Regulation, p. 1081 et seq. In Lindsley, Rate Regulation of Gas and Electric Lighting, p. 58 et seq., are collected the statutes dealing with that subject. DELEGATION OF POWER BY LEGISLATURE. 67 when it names specific rates, need not disclose ttie prin- ciples upon which it acts or even consciously adopt any principles, that body may not grant to any other organ of government any power whatever to name specific rates for future transportation without first laying down prin- ciples 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 adminis- trative organ power to name rates in accordance with those principles, the power of that organ depending upon the completeness with which principles have been laid down for its guidance. ^^ Discussion of state and federal authorities on rate-mak- ing. 40. Some of the courts in sustaining laws which au- thorized commissions to name rates for future transporta- tion have said that, as economic conditions change from time to time, rates can be named better by a commission 34 So also it seems that a legislature cannot constitutionally grant to a commission power to permit or refuse to permit combinations between com- peting carriers without first laying down principles for the guidance of the commission. It is obvious to any one who examines the question dis- passionately that some combinations between competing carriers are de- cidedly 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 regu- lating 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, 111 N. W. 289, 10 L. R. A. N. S. 250. See also State ex rel. Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn. (1908) 137 Wis. 80, 86, 117 N. W. 846, 848. Compare State V. Kenosha E. Ry. Co. (1911) 145 Wis. 337, 129 N. W. 600; Schaake V. Dolley (1911) 85 Kan. 598, 118 Pac. 80, 37 L. R. A. N. S. 877; State V. Corvallis & E. R. Co. (1911) 59 Ore. 450, 117 Pac. 980. 68 THE DISTRIBUTION OF GO\^RNMENTAL POWERS. than by the legislature, which is not constantly in ses- sion.^^ This argument from convenience is certainly a strong one; and decisions that railroad commissions may name specific rates do not necessarily conflict with the decisions that the legislature alone may determine the principles upon which the government shall be con- ducted. 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 uniform rates for the entire state and that it would not be practicable for the legislature itself to establish rates in each of the communities.^^ 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 35 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 Louisville & N. R. Co. v. In- terstate Com. Comn. (1910) 184 Fed. 118; 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, 1 L. R, A. 744; Trustees v. Saratoga G., E. L. & P. Co. (1908) 191 N. Y. 123, 144, S3 N. E. 693, 699, 18 L. R. A. N. S. 713, 723; Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn. (1908) 136 Wis. 146, 159, 116 N. W. 905, 910, 17 L. R. A. N. S. 821, 829; State v. Atlantic C. L. R. Co. (1908) 56 Fla. 617, 47 So. 969, 32 L. R. A. N. S. 639. Compare Smalley, Railroad Rate Control (Publications of the American Economic Assn.) 121. 30 Trustees v. Saratoga G., E. L. & P. Co. (1908) 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. N. S. 713. And see Louisville & N. R. Co. v. Interstate Com. Comn. (1910) 184 Fed. 118; State v. Chicago, M. & St. P. Ry. Co. (1888) 38 Minn. 281, 37 N. W. 782; Georgia R. & B. Co. v. Smith (1883) 70 6a. 694. For other practical arguments in support of the delegation of power to administrative organs, see Young, The Relation of the Executive to the Legislative Power, Proc. Am. Pol. Sci. Assn., I, 47. DELEGATION OF POWER BY LEGISLATURE. 69 it 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 gTound that in those statutes the legislature had declared what the law should be and had left to the commissions ques- tions of fact.^^ Certainly where definite standards are 37 See Trustees v. Saratoga G., E. L. & P. Co. (1908) 191 N. Y. 123, 145, 83 N. E. 693, 700, 18 L. R. A. K S. 713, 723, where the commission was em- powered to determine what were reasonable maximum rates; Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn. (1908) 136 Wis. 146, 116 N. W. 905, 17 L. R. A. N. S. 821, referred to more fully in note 33, supra, where the commission was empowered to determine what were reasonable rates; 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 reasonable; and State ex rel. Webster v. Superior Court (1912) 67 Wash. 37, 120 Pac. 861, where the statute (Laws, 1911, p. 571) provided that the commission should determine the just, reasonable or sufficient rates. In view of the illustrations used, the court apparently had this thought in mind in Tilley v. Savannah, 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 extor- tion, 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 evidence that the rates named therein were rea- sonable 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 percent- age from its business as a whole the legislature would be furnishing ade- quate 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, 32 L. ed. 377, the statute provided that a railroad charging more than a fair and reasonable rate should be deemed gailty of extortion, and pro- vided 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 leg- islature would itself make specific regulations as to what should in each 70 THE DISTRIBUTIOK OF GOVERNMENTAL POWERS. established 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 dele- gated. This principle 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, however, the courts have as a gen- eral rule ^^ given but very little consideration. On the other hand, the suggestion which has been made in support of commission-made rates ^^ that because the legislature may for historical reasons grant some self- government to localities ^'^ it may delegate legislative power to other governmental organs is entirely uncon- vincing. The fact that there is one exception to the rule does not justify the creation of new exceptions. And case be a proper charge, but that it would simply provide the means by which such rates should be ascertained and enforced." In Chicago, I. & 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) 42 Ind. App. 90, 100, 83 N. E. 721, 725, where the commission was directed, upon complaint, to de- termine whether the rat€S charged were just and reasonable, 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 33, supra, concerning statutes by which the rates named by commissions furnished prima facie evidence as to what were the lawful rates. — Compare, however, Central of Ga. Ry. Co. v. Rail- road Comn. of Alabama (1908) 161 Fed. 925, 985, where the court de- clared invalid as an attempted delegation of legislative power a provision in an act of Alabama quoted in note 30, supra. 38 See, however. Central of Ga. Ry. Co. v. Railroad Comn. of Alabama, cited in note 30, supra. 30 See Tilley v. Savannah, F. & W. R. Co. (1881) 5 Fed. 641; and also United States v. Grimaud (1911) 220 U. S. 506, 516, 31 Sup. Ct. 480, 482, 483, 55 L. ed. 563 (1910) 216 U. S. 614, 30 Sup. Ct. 576, 54 L. ed. 639; People V. Harper (1878) 91 111. 357. The opinion in the case last cited is criticised in note 87, infra. 40 See sec. 30, supra. DELEGATION OF POWER BY LEGISLATURE. 71 since the distributive clauses of the state constitutions do not apply to local governments ^^ but do apply to the cen- tral governments of those states, there is obviously noth- ing in the argument, which was made in support of rate regulation by a gas and electricity commission,^- that be- cause a power may be granted to administrative officers of a locality similar power may be granted to adminis- trative officers of the state. Two opinions also refer to laws declaring that the ju- diciarj^ may make rules of court."*'^ But allowing an organ to regulate procedure before itself is far different from allowing 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 ^^ is likewise unsound. A com- 41 See sec. 30, supra. 42 Trustees v. Saratoga G., E. L. & P. Co. (1908) 191 N. Y. 123, 83 K E. 693, 18 L. R. A. N. S. 713. 43 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. 44Tilley 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. A. 504. — On the converse of this proposition see Morrow v. Wipf (1908) 22 S. D. 146, 159, 115 N. W. 1121, 1127; People v. Board of Election Comra. (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 candidates. The opin- ions 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 qualification of the electors did not delegate legislative power. See also note 93, infra. 72 THE DISTRIBUTION OF GOVERNMENTAL POWERS. mission acts an an organ of government— it interferes with the conduct of third parties in matters in which the commission is not itself interested; while the officials of a railroad, although doing what some governmental organ might do, do not act as agents of the government but in- terfere with the conduct of others onlj^ in matters affect- ing the company itself. We shall examine later the position that an adminis- trative body may be granted discretion in the establish- ment of rates.^^ Discussion of position of Supreme Court on rate-making. 41. While the United States Supreme Court has sus- tained an order of the Interstate Commerce Commission which reduced railroad rates,'^^ that decision was ren- dered without any discussion of the validity of the dele- gation of power to the commission, and in no other case has the court ever decided how much power over rates may be granted by Congress to the Interstate Commerce Commission.*^ 45 See sec. 46, infra. 46 Interstate Com. Comn. v. Chicago, E. I. & P. Ry. Co. (1910) 218 U. S. 88, 30 Sup. Ct. 651, 54 L. ed. 946; Interstate Com. Comn. v. Chicago, B. & Q. R. Co. (1910) 218 U. S. 113, 30 Sup. Ct. 660, 54 L. ed. 959. See also Interstate Com. Comn. v. Illinois C. R. Co. (1910) 215 U. S. 452, 30 Sup. Ct. 155, 54 L. ed. 280, which sustained an order of the commission arising out of discrimination in service without any reference to the constitutional question; and Louisville & N. R. Co. v. Interstate Com. Comn. (1910) 184 Fed. 118. 47 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. 0. & T. P. Ry. Co. (1897) 167 U. S. 479, 494, 17 Sup. Ct. 896, 898, 42 L. ed. 243. See also Texas & P. Ry. Co. v. Inter- state Com. Comn. (1896) 162 U. S. 197, 216, 16 Sup. Ct. 666, 674, 40 L. ed. 940; dissenting opinion in Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 464, 10 Sup. Ct. 462, 702, 704, 33 L. ed. 970; and notes 61, 62, infra. But this dictum does little, if anything, towards set- DELEGATION OF POWER BY LEGISLATURE. 73 The question whether the distribution of powers by the state constitutions has been violated by any administra- tive order concerning rates has been before that court only in the Railroad Commission Cases,^^ where the state co-urt had already declared that the law there considered did not violate the state constitution ^^ — a decision which was binding upon all other courts.^*^ The United States Supreme Court did briefly announce its concurrence with the interpretation which the state court had placed upon the state constitution.^^ But the attention of all the tling 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, 52 L. ed. 705, "It is unnecessary to define the full scope and mean- ing of the prohibition found in sec. 3 of the Interstate Commerce Act [re- lating to discriminations], or even to determine whether the language is sufficiently definite to make the duties cast on the Interstate Commerce Commission ministerial, and therefore such as may legally be imposed upon a ministerial body, or legislative, and therefore, under the Federal Consti- tution, 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 condemnation." 48 (1886) 116 U. S. 307, 347, 352, 6 Sup. Ct. 334, 348, 349, 388, 391, 1191, 29 L. ed. 636; reversing Farmers' L. & T. Co. v. Stone (1884) 20 Fed. 270; Illinois C. R. Co. v. Stone (1884) 20 Fed. 468. 49 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 follows: "The act creating the railroad commission is not violative of the 14th Amend- ment of the Constitution of the United States, or of any provision of the constitution- of the state, in that it creates a commission 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 law- fully employ over railroads within its limits." See comment on Stone v. Natchez, J. & C. R. Co. in note 52, infra. oO "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 concerned, can- not be questioned elsewhere:" Patterson, The United States and the States Under the Constitution, 2d ed., p. 282. See also cases cited in notes 45, 47 in Chapter 3, infra. 51 The court stated the contention that the act conferred both legislative 74 THE DISTRIBUTION OF GOVERNMENTAL POWERS. courts which considered that law was devoted almost ex- clusively to other constitutional questions,^^ so that it 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 repug- nant to the constitution of the state 'in that it creates a commission 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, 29 L. ed. 646.— In Chicago & N. W. Ry. Co. v. Dey (1888) 35 Fed. 866, 875, 1 L. R. A. 744, in answer to the contention that legislative power was delegated to the commission 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 Supreme Court of the United States, and although 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 opinion. — An examina- tion of unreported portions of the briefs filed in the Supreme Court shows that counsel did there discuss, with ordinary ability, the question of dele- gation of legislative power to an administrative body. And in 62 Miss, at 626 there are references to the question 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 constitution might have meant merely that if the state had any control whatever 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 a 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." 52 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 reasonableness of rates is not with the railroad commission, but, as before, with the govern- ment, 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 assumed 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 prevent extortion and unjust discrimina- tion 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 DELEGATION OF POWER BY LEGISLATURE. 75 seems that even if the Supreme Court had had the right to pass upon the validity of the delegation of power, its decision upon that point would be of no greater value as a precedent than was that casual decision upon the com- merce clause in the Granger Cases ^^ which was overruled in Wabash, St. L. & P. Ey. Co. v. Illinois.^^ In Chicago, M. & St. P. Ry. Co. v. Tompkins ^^ and Min- neapolis & St. L. R. Co. V. Minnesota ^"^ 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,^^'^ while the court refer- red to the decision of the state court upon the constitu- tionality of the delegation of power, it properly refrained from comment thereon. And in Reagan v. Farmers' L. & T. Co.^^ it had been shown in the lower court ^^ 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®*^ that a state may regulate by means of a commis- sion, that case certainly does not show that in the absence of an express provision in the state constitution a legisla- exert its right." But it does not follow that i-he legislature may select an agency as freely as the state itself might do it, and that point is not dis- cussed. 53 Chicago, B. & Q. R. Co. v. Iowa (1876) 94 U. S. 155, 163, 24 L. ed. 94; Peik V. Chicago & N. W. Ry. Co. (1876) 94 U. S. 164, 177, 178, 24 L. ed. 97. 54 (1886) 118 U. S. 557, 566-569, 7 Sup. Ct. 4, 7-9, 30 L. ed. 244. 55 (1900) 176 U. S. 167, 20 Sup. Ct. 336, 44 L. ed. 417 (1898) 90 Fed. 363. 56 (1902) 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151; State v. Minne- apolis 6i St. L. R, Co. (1900) 80 Minn. 191, 83 N. W. 60. 57 (1888) 128 U. S. 174, 178, 9 Sup. Ct. 47, 48, 32 L. ed. 377. 58 (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014. 59 Mercantile T. Co. v. Texas & P. Ry. Co. (1892) 51 Fed. 529, 532. 60 154 U. S. at 393, 394, 14 Sup. Ct. at 1053, 38 L. ed. at 1022. 76 THE DISTRIBUTION OF GOVERNMENTAL POWERS. ture 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 leg- islative power,^^ and at times that it is an administrative power,^^ and the court has also appeared undecided upon this point.^^ Yet, as we have already observed®* that there are some powers which may be exercised by the leg- islature itself but the exercise of which is not confined strictly to the legislature and may, therefore, be assigned by it to an administrative organ, these cases need not con- fuse us. Taken together they indicate no more than that a commission may not name specific rates without legis- lative authorization but that a commission may be au- thorized to ascertain facts as to rates and to state in spe- cific form principles established by the legislature. Decisions of Supreme Court on delegation of power. 42. The court has sustained several federal ®° and state ^® statutes which delegated power to administrative or executive officers and which were attacked upon the eiMcChord v. Louisville & N. R. Co. (1902) 183 U. S. 483, 495, 22 Sup. Ct. 165, 169, 46 L. ed. 289; Interstate Com. Comn. v, Alabama M. Ry. Co. (1897) 168 U. S. 144, 162, 18 Sup. Ct. 45, 47, 42 L. ed. 414; Interstate Com. Comn. v. Cincinnati, N. 0. & T. P. Ry. Co. (1897) 167 U. S. 479, 499, 500, 501, 505, 506, 511, 17 Sup. Ct. 896, 900, 901, 902, 903, 905, 42 L. ed. 243. See also notes 18, 19, supra. 62 St. Louis & S. F. Ry. Co. v. Gill (1895) 156 U. S. 649, 663, 15 Sup. Ct. 484, 490, 39 L. ed. 567; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 394, 14 Sup. Ct. 1047, 1053, 38 L. ed. 1014. See also note 62, supra. 63 Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 302, 397, 14 Sup. Ct. 1047, 1054, 38 L. ed. 1014. 64 Sees. 29, 36, supra. 65 Union B. Co. v. United States (1907) 204 U. S. 364, 27 Sup. Ct. 367, 51 L. ed. 523, and cases there cited. And see St. Louis, I. M. & S. Ry. Co. V. Taylor (1908) 210 U. S. 281, 287, 28 Sup. Ct. 616, 617, 52 L. ed. 1061; Hannibal B. Co. v. United States (1911) 221 U. S. 194, 205, 31 Sup. Ct. DELEGATION OF POWER BY LEGISLATURE. 77 ground that the power delegated was legislative, 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; ^'' but the actual decisions in those cases are more than off-set by the reasons which the court gave in support of the decisions.^^ Indeed, the correct rule has nowhere been stated more clearly than in the recent case of Interstate Com. Comn. V. Goodrich Transit Co.,^^ in which a grant to the com- mission of power to prescribe a uniform system of ac- counting and book-keeping was sustained.'^ In that case the court said, ' ' The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action under which a commission shall proceed, it may require of that commission the ap- plication of such rules to particular situations and the in- vestigation of facts, with a view to making orders in a particular matter within the rules laid down by the Con- gress." "^^ 603, 606, 55 L. ed. 699; Monongahela B. Co. v. United States (1910) 216 U. S. 177, 30 Sup. Ct. 356, 54 L. ed. 435; United States v. Grimaud (1911) 220 U. S. 506, 517, 518, 31 Sup. Ct. 480, 483, 55 L. ed. 563. 66 Red "C" O. M. Co. V. Board of Agriculture (1912) 222 U. S. 380, 32 Sup. Ct. 152, 56 L. ed. 240. 67 Consider criticisms in dissenting opinion in Field v. Clark, (1892) 143 U. S. 649, 697, 12 Sup. Ct. 495, 506, 36 L. ed. 294; 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. 68 On the bearing of Field v. Clark (1892) 143 U. S. 649, 12 Sup. Ct. 495, 36 L. ed. 294, on railroad rate regulation, see Olney, Railroad Rate Making by Congress, 181 N. A. Rev. 490; Peck, Governmental Regulation of Railroad Rates, 13 Am. La^vyer, 485, 486; Whitney, The Reciprocity Acts of 1890, 31 Am. L. Reg. 186, 187. 69 (1912) 224 U. S. 194, 32 Sup. Ct. 436, 56 L. ed. 729. "^0 On such legislation see section 46, infra. 71 224 U. S. at 214, 32 Sup. Ct. at 441, 56 L. ed. at 737. 78 THE DISTEIBUTION OF GOVERNMENTAL POWERS. In another recent case '^^ the court has decided that a federal statute which authorized the Secretary of Agri- culture to regulate the occupancy and use of the forest reservations of the United States indicated sufficiently the policy which was to be enforced by the Secretary and therefore the making of regulations by him was not the exercise of a power which was strictly legislative."^^ So interpreted the decision certainly supports the position taken in this chapter.'^'* The court has sustained legislation which delegated to executive officers distinctively congressional power con- cerning the Philippine Islands.''^^ But those decisions 72 United States v. Grimaud (1911) 220 U. S. 506, 31 Sup. Ct. 480, 56 L. ed. 563. The decision was followed in Light v. United States (1911) 220 U. S. 523, 31 Sup. Ct. 485, 55 L. ed. 570. The statute in question had been declared unconstitutional in United States v. Grimaud (1909) 170 Fed. 205, and that decision had been affirmed by a divided court (1910) 216 U. S. 614, 30 Sup. Ct. 576, 54 L. ed. 639. 73 220 U. S. at 515, 516, 31 Sup. Ct. at 482, 55 L. ed. at 567. 74 The court also referred to the rule that powers of local self-govern- ment may be granted to the localities affected, a rule which has no bearing upon the legislation under consideration, and it referred twice to Brodbine V. Revere (1903) 182 Mass. 599, 66 N. E. 607, \?hich had been improperly based on that rule. And the court made other references which did not fully recognize the limitations to the extent to which an administrative organ may be allowed to "fill up details." But in view of the facts of the case and the reason given earlier in the opinion these expressions may be disregarded. — The court also pointed out that in grazing their sheep upon the forest reserve without a permit the defendants were making an un- lawful use of property which belonged to the government. And it must be conceded that even if the statute under consideration were invalid that fact would not warrant the appropriation of public property by individ- uals. This in itself is certainly a sufficient ground for the decision in Light v. United States (1911) 220 U. S. 523, 31 Sup. Ct. 485, 55 L. ed. 570, if not for that in United States v. Grimaud (1911) 220 U. S. 506, 31 Sup. Ct. 480, 55 L. ed. 563. See also note 115, infra. 75 United States v. Heinszen (1907) 206 U. S. 370, 27 Sup. Ct. 742, 51 L. ed. 1098; Dorr v. United States (1904) 195 U. S. 138, 24 Sup. Ct. 808, 49 L. ed. 128. See also The Louisa Simpson (1871) 2 Sawyer, 57, 61, 71, 15 Fed. Cas. 953, 955, 958. DELEGATION OF POWER BY LEGISLATURE. 79 cannot justify similar legislation for territory which is under the Constitution of the United States. The court has also sustained a federal law which al- lowed local authorities to make certain ' ' supplementary regulations" concerning the acquisition of title to public lands J ^ The opinion does not contain a thoroughly satis- factory discussion of the question involved,'^^ yet the rea- son 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 Congress had itself prescribed, and as vast interests would suffer from a decision that the fed- eral statute was unconstitutional the court would not so decide where the invalidity was not clear J ^ As the court did not notice it, we need not lay much stress upon the fact that the local authorities were not merely admin- istrative and that apparently the ''supplementary regu- lations" were legitimate exercises of local self-govern- ment.'^^ The decision that the power to make those ' ' sup- 76 Butte C. W. Co. V. Baker (1905) 196 U. S. 119, 25 Sup. Ct. 211, 49 L. ed. 409. See also United States v. Ormsbee (1896) 74 Fed. 207. 77 See 196 U. S. 125, 126, 25 Sup. Ct. 213, 49 L. ed. 412. 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, permission to delegate a portion of the power committed to it. — Granting 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 exclusive control of Congress, so that even if the ci urt could say boldly that neither the statute nor the "supplementary regulations" were in any aspect legis- lative in character the problem would not be entirely solved. 78 A statute must always be upheld unless its invalidity is clear, regard- less of the amount involved. 79 In this case the regulations were made by a state; but a state could not exercise such power over interstate rates: see Stoutenburgh v. Hennick (1889) 129 U. S. 141, 9 Sup. Ct. 256, 32 L. ed. 637; and also McCornick v. Western U. T. Co. (1879) 79 Fed. 449, 451; compare In re Rahrer (1891) 140 U. S. 545, 11 Sup. Ct. 865, 35 L. ed. 572.— Perhaps the statute was 80 THE DISTRIBUTION OF GOVERNMENTAL POWERS. plementary 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 consti- tute a decision upon the extent to which the power of Con- gress is exclusive under any clause of the Constitution other than the one considered in that case.^° The Supreme Court of the United States has also re- ferred to the distribution of governmental powers in sev- eral cases involving state legislation, but its remarks in those cases were of comparatively little value.^^ analogous to that considered in In re Rahrer, and merely withdrew a with- drawable 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 governments held them in common because of the 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 some- times misapplied : in addition to In re Rahrer see Patterson, The United States and the States Under the Constitution, 2d ed., p. 269, note; Halter V. Nebraska (1907) 205 U. S. 34, 41, 42, 27 Sup. Ct. 419, 422, 51 L. ed. 696 ; and, by way of analogy, sec. 29, 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, 51 L. ed. 950; Allen v. Riley (1906) 203 U. S. 347, 27 Sup. Ct. 95, 51 L. ed. 216; Woods & Sons v. Carl (1906) 203 U. S. 358, 27 Sup. Ct. 99, 51 L. ed. 219; 2 Am. Pol. Sci. Rev. 347. 80 "The line has not been exactly drawn which separates those import- ant 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 provisions to fill up the details:" Wayman v. Southard (1825) 10 Wheat. 1, 43, 6 L. ed. 253. 81 Michigan C. R. Co. v. Powers (1906) 201 U. S. 245, 26 Sup. Ct. 459, 50 L. ed. 744, where the distribution was clearly directed by the state con- stitution; Dreyer v. Illinois (1902) 187 U. S. 71, 23 Sup. Ct. 28, 47 L. ed. 79; St. Louis C. C. Co. v. Illinois (1902) 185 U. S. 203, 22 Sup. Ct. 616, 46 L. ed. 872. The two latter cases had been taken up from the state court of last resort. The rule as to the distribution of governmental pow- DELEGATION OF POWER BY LEGISLATURE. 81 Ascertainment of facts. 43. 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 officers. Thus they have sustained legislation by which a commission was authorized to mark boundary lines between counties,^^ a commission was authorized ers is distinctly separate from other rules of the constitutions, however much laws which violate that rule may also violate other rules. See also Soliah v. Heskin (1912) 222 U. S. 522, 32 Sup. Ct. 103, 56 L. ed. 294; Welch V. Swasey (1909) 214 U. S. 91, 104, 29 Sup. Ct. 567, 570, 53 L. ed. 923. The court said in Atlantic C. L. R. Co. v. North C. Corp. Comn. (1907) 206 U. S. 1, 19, 27 Sup. Ct. 585, 591, 51 L. ed. 933, that state regu- lation of railroads "may be exerted either directly by the legislative au- thority 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 dele- gation of power was not considered. Every one must admit that a legisla- ture may confer some power upon commissions. But the case does nothing whatever towards clearing up the question of how much power a legislature may bestow upon a commission without violating that distribution of powers which is usually made by the constitutions. 82 Trinity County v. Mendocino County (1907) 151 Cal. 279, 90 Pac. 685. Although the line was marked incorrectly it constituted the 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 commission 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 Hunter v. City of Tracy (1908) 104 Minn. 378, 383, 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 com- mittees to establish delegate districts in their respective counties. The de- cision can be supported, if at all, only upon the ground that so much dis- cretion was allowed to the committees that their decisions 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-govern- ment. But while the court uses language which taken alone would indi- cate 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 administrative organ and insisting that the com- mittees could not constitutionally be made governmental organs. In taking 82 THE DISTRIBUTION OF GOVERNMENTAL POWERS. to determine the efficiency of a voting-machine the use of which, if efficient, was directed by law,^^ examining boards were authorized to inquire into the qualifications of persons seeking to exercise designated public occupa- tions and to license those who were properly qualified,^^ tlie latter ground the court seems to be in error: see 8 Cyc. 831; Seholle V. State (1900) 90 Md. 729, 46 Atl. 326, 50 L. R. A. 411; St. Louis, L M. & S. Ry. Co. V. Taylor (1908) 210 U. S. 281, 287, 28 Sup. Ct. 616, 617, 52 L. ed. 1061; dissenting opinion in Rouse v. Thompson; discussion of this case in 21 Harv. L. Rev. 215, 216. SSElwell V. Comstock (1906) 99 Minn. 261, 109 N. W. 113, 698, 7 L. R. A. N. S. 621. See also Vandalia R. Co. v. Railroad Comn. (1913) Ind., 101 N. E. 85. 84 Ex parte McManus (1907) 151 Cal. 331, 90 Pac. 702, state board of architecture — see concurring opinion; In re Thompson (1904) 36 Wash. 377, 78 Pac. 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, 66 L. R. A. 249, state board of medical examiners; State v. Thompson (1901) 160 Mo. 333, 60 S. W. 1077, 54 L. R. A. 950, state auditor authorized 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. In People v. Reid (1912) 151 N. Y. App. Div. 324, 136 N. Y. Supp. 428, the court sustained a statute which authorized the board of dental examiners to revoke a license obtained improperly. See also Red "C" O. M. Co. v. Board of Agriculture (1912) 222 U. S. 380, 32 Sup. Ct. 152, 56 L. ed. 240; Baltimore & O. R. Co. v. Railroad Comn. (1912) 196 Fed. 690; State v. Loden (1912) 117 Md. 373, 83 Atl. 564; State v. Crombie (1909) 107 Minn. 166, 119 N. W. 658; Arwine v. Board of Medical Examrs. (1907) 151 Cal. 499, 91 Pac. 319; State v. Chittenden (1906) 127 Wis. 408, 107 N. W. 500; Hildreth v. Crawford (1884) 05 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 sus- tained without any consideration of the question of delegation of legisla- tive power. Contra, Harmon v. State (1902) 66 Ohio St. 249, 64 N. E. 117, 58 L. R. A. 618, where a statute which authorized examiners to license steam engineers who should be found "trustworthy and competent" was declared invalid on the gi-ound that it delegated legislative power. The only case cited by the court was Matthews v. Murphy, referred to in note 87, 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 consider also cases cited in note 87, infra. DELEGATION OF POWER BY LEGISLATURE. 83 a chief of police was authorized to determine whether moving pictures were obscene or immoral and to refuse to permit their exhibition if they were objectionable in such respect,^'^ state boards were authorized to issue quarantine and other regulations for the protection of the health of the community,^^ and other similar or 85 Block V. City of Chicago (1909) 239 111. 251, 87 N. E. 1011. 86 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. In State v. Snyder (1912) 131 La. 145, 59 So. 44, the court even sustained a statute which authorized the state board of health to promulgate a sanitary code. 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, 1908) 15 Wyo. 398, 414, 418, 89 Pac. 576, 579, 93 Pac. 662, 663; Cooper v. Schultz (1866) 32 How. Pr. (X. Y.) 107 (in the last of which the courts sustained a broad grant of power to commis- sioners 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 follow- ing cases in which live stock quarantine regulations were sustained: State V. McCarty (1912) 5 Ala. Ap. 212, 59 So. 543; 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, 1, 11, 59 Pac. 933, 936, 52 L. R. A. 78. In Arbuckle v. Pflaeging (1912) 20 Wyo., 123 Pac. 918, the court sustained a statute for the prevention of the spread of disease among animals which authorized the state veterinarian, when necessary, to require their spraying or dipping. 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 decided correctly in sustaining the same objection to a statute (as interpreted by the board of health) which dealt with dangerous contagious 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 uncon- stitutional a statute which provided that if in any factory there were pro- duced dangerous substances that were liable to be inhaled by the em ployees, 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, 58 L. R. A. 277, 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 con- ferring upon factory inspectors powers the extent of which is not clearly 84 THE DISTRIBUTION OF GOVERNMENTAL POWERS. supposedly similar delegations of power were made.^'^ While the courts have not always sustained statutes upon those subjects, partly because some of the statutes which were declared unconstitutional differed in charac^ 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. S7 Sec page 69 and notes 82, 86, supra; language of court in Central of Ga. Ry. Co. v. Railroad Comn. (1908) 161 Fed. 925, at 986; and Colorado & S. Ry. Co. v. State R. Comn. (1913) 54 Colo. 64, 129 Pac. 100; Jones v. Belzoni Drainage Dist. (1912) 102 Miss., 59 So. 921; State V. Corvallis & E. R. Co. (1911) 59 Ore. 450, 117 Pac. 980; Schaake v. Dolley (1911) 85 Kan. 598, 118 Pac. 80, 37 L. R. A. N. S. 877; State V. Kenosha E. Ry. Co. (1911) 145 Wis. 337, 129 N. W. 600; Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn. (1908) 136 Wis. 146, 117 N. W. 846, 17 L. R. A. N. S. 821; Coopersville C. Co. v. Lemon (1908) 163 Fed. 145; St. Louis, I. M. & S. Ry. Co. v. Neal (1906) 83 Ark. 591, 98 S. W. 958, affirmed as to this point in St. Louis, I. M. & S. Ry. Co. v. Taylor (1908) 210 U. S. 281, 287, 28 Sup. Ct. 616, 617, 52 L. ed. 1061. 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 in- spection fees : the legislature stated the principle to be followed, though the court does not dwell on this fact but sustains the statute with unsound reasoning. See also Merchants Exchange v. Knott (1908) 212 Mo. 616, 111 S. W. 565. In Lothrop v. Stedman (1875) 42 Conn. (Supp.) 583, Fed. Cae. No. 8519, a commissioner 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 sustained 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, pos- sibly, answer objections to statutes considered in Soliah v. Cormack (1908) 17 N. D. 393, 401, 402, 117 N. W. 125, 128; State v. Bryan (1905) 50 Fla. 293, 369, 370, 39 So. 929, 953; Leeper v. State (1899) 103 Tenn. 500, 524, 53 S. W. 962, 967, 48 L. R. A. 167, 172 (and see State v. Storey (1909) 51 Wash. 630, 99 Pac. 878; Iowa L. I. Co. v. East M. L. I. Co. (1900) 64 N. J. L. 340, 347, 45 Atl. 762, 765) ; 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 Y. E. R. Co. (1877) 70 N. Y. 327, though it seems that other por- tions 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 50, supra. A statute which authorized county commissioners to determine tlio DELEGATION OF POWER BY LEGISLATURE. 85 ter from those which were sustained and partly because some courts have taken a stricter view of the limitations upon delegations of power by the legislature than have been taken by other courts, it seems clear that constitu- tional statutes upon those subjects may be framed. Such questions, for instance, as the appropriate preventive of the spread of smallpox, 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 legisla- ture and stating in specific form a regulation which is 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 determine questions of fact. In People v. Delaware & H. C. Co. (189S) 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 dele- gated by a statute which empowered commissioners, acting judicially, it was said, to determine the necessity of railroad accommodations. And statutes authorizing commissions to issue orders concerning the construc- tion and operation of railroads have been enforced without any considera- tion of the question of delegation of legislative power in a number of cases. On the other hand, in Noel v. People (1900) 187 111. 587, 58 N. E. 616, 52 L. R. A. 287, the court decided that legislative power was delegated by a statute which granted to a board of pharmacy an unconditional power to say, as to some parts of the state, what individuals who were not regis- tered pharmacists should be permitted to sell patent and proprietary medi- cines and domestic remedies, and under what restrictions those drugs should be sold, although the court admitted the validity of that part of the statute which provided that no one might sell medicines which he had pre- pared or compounded himself unless he were a registered pharmacist. And in Matthews 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 character calculated to deceive or defraud the public," although ad^ mitting the validity of that part of the statute which authorized the board to pass upon the qualifications of persons seeking licenses to practice medicine: yet it is doubtful whether that case turned upon the question of delegation of legislative power. 86 THE DISTRIBUTION OF GOVERNMENTAL POWERS. not the application of a law established by the legislature. Or, to refer more definitely to railroad commissions, while a legislature certainly may authorize such a commission to investigate 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 legisla- ture may endow 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 ascertained, it must determine the law which is to be applied.^ ^ Contingent legislation— bearing on general principles. 44. The courts have also held that a statute the opera- tion of which depends upon a contingency does not nec- essarily delegate legislative power. It may declare com- pletely the principles of governmental action although other forces determine the result of that declaration of principles. Thus the treatment of a foreign corporation may be made to depend upon the treatment which the home state of that corporation extends to corporations of the state whose legislation is being considered; ®^ the leg- 88 See cases cited in note 29, supra. 89 People V. Fire Assn. of Phila. (1883) 92 N. Y. 311; Phoenix I. Co. v, Welch (1883) 29 Kan. 672; Home I. Co. v. Swigert (1882) 104 111. 653; and see Talbot v. Fidelity & C. Co. (1891) 74 Md. 536, 545, 22 Atl. 395, 398, 13 L. R. A. N. S. 584. Contra, Clark & Murrell 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, 3 L. ed. 378, the DELEGATION OF POWER BY LEGISLATURE. gj islature may provide that the pay of an officer of the state militia in active service with troops also in active service shall be the same as that of an officer of a corresponding grade of the United States army; ^^ commissioners may be authorized to construct new county buildings if they shall find that the work will not require an increase in the tax rate,^^^ to remove de facto a county seat upon the erection of suitable buildings at a new location,*^^ 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 commissioners and without expense to the county, provide suitable temporary accommodations and a suit- able building site ; ^- a legislature may require a railroad company to stop its trains at a designated place if indi- viduals shall, within a given time, there erect a station building and convey it, with the land thereunder, to the company;^" a legislature may repeal the charter of a court sustained an act by which, an embargo resulted upon action by Great Britain. And in Field v. Clark (1892) 143 U. S. 649, 12 Sup. Gt. 495, 36 L. ed. 294, the court sustained a federal reciprocity statute in which the contingency was not indicated as definitely as in the above statutes. 90 James v. Walker (1910) 141 Ky. 88, 132 S. W. 149. 90a Hand v. Stapleton (1903) 135 Ala. 156, 33 So. 689. 91 Peck V. Weddell (1867) 17 Ohio St. 271. 92 Walton V. Greenwood (1872) 60 Me. 356. See also decision in Fournier V. Commissioners of Aroostook County (1912) 109 Me. 48, 82 Atl. 545. 93 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 sustained 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. See also State v. Montgomery (1912) 176 Ala., 59 So. 294, 299, 300; State v. Storey (1909) 51 Wash. 630, 99 Pac. 878; City of Spokane v. Camp (1908) 50 Wash. 554, 97 Pac. 770; United States v. Oregon R. & N. Co. (1908) 163 Fed. 640. On the other hand, in Owensboro & N. R. Co. v. Todd (1891) 91 Ky. 175, 15 S. W. 56, 11 L. R. A. 285, the court, without giving satisfactory reasons, declared that 88 THE DISTRIBUTION OF GOVERNMENTAL POWERS. 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; ^** and, though it is questionable whether this is really contingent legislation, a legislature may doubtless empower individuals to do certain acts without compelling them to do so, as in the statutes au- thorizing 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 de- termined only by the legislature ; but it would be far oth- erwise 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 dele- gated legislative power to the voters or the authorities of localities, upon the ground that in each case the operation of the statute was contingent.^^ And yet, without criti- 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 require the company to fence the right of way at its own expense; and in Loughbridge v. Harris (1871) 42 Ga. 500, is an unmistakably incorrect declaration that a mill dam act delegated leg- islative power. See also note 44, supra. — As a legislature does not necessar- ily allow an individual 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 againstthe state, even though it may not grant to any one a right to interfere Avith 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. 94Lothrop V. Stedman (1875) 42 Conn. (Supp.) 583, Fed. Cas. No. 8519. 95 See e. g., Rankin County v. Davis (1912) 102 Miss., 59 So. 811, 813; Mayor v. State (1912) 102 Miss., 59 So. 873; State v. Sammona (1911) 62 Fla. 303, 314, 57 So. 196, 200; People v. McBride (1908) DELEGATION OF POWER BY LEGISLATURE, 89 cising the actual decisions, we must note that not only does the reason given in support of them appear to be in- sufficient when considered by itself,^*^ but its unsound- ness is further shown by the fact that if the statutes were sustainable only upon that reason the decision would be 234 111. 146, 177, 84 N. E. 865, 872; Picton v. Cass County (1904) 13 N. D. 242, 100 N. W. 711; Ansley v. Ainsworth (1902) 4 Ind. Terr. 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. 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. Bor- deaux (1886) 64 Miss. 59, 8 So. 201; Clarke v. Rogers (1883) 81 Ky. 43; People V. City of Butte (1881) 4 Mont. 174, 1 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; Cin- cinnati, W. & Z. R. Co. V. Comrs. (1852) 1 Ohio St. 77; and also State v. Ure (1912) 91 Neb. 31, 135 N. W. 224; Ex parte Beck (1912) 162 Cal. 701, 708, 124 Pac. 543, 546; State ex rel. Hunt v. Tausick (1911) 64 Wash. 69, 116 Pac. 651, 35 L. R. A. N. S. 802; Orrick v. City of Ft. Worth (1908) 52 Tex. Civ. App. 308, 114 S. W. 677; State v. Fountain (1908) 6 PennewiU (Del.) 520, 539, 69 Atl. 926, 934; Thalheimer v. Board of Suprs. (1908) 11 Ariz. 430, 94 Pac. 1129; Ward v. State (1908) 154 Ala. 227, 45 So. 655; State V. Kline (1907) 50 Ore. 426, 93 Pac. 237; Fonts v. Hood River (1905) 46 Ore. 492, 81 Pac. 370, 1 L. R. A. N. S. 483; In re New Y. 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 were acts administrative in their nature for the improvement, where necessary, of the excution of a law the execution 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 con- stitutional or not, the statute could not be enforced. Compare Rankin County V. Davis (1912) 102 Miss., 59 So. 811. 96 The distinction between valid and invalid contingent legislation is fur- ther 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) 4S Cal. 279, 315; Central of Ga. Ry. Co. v. Railroad Comn. (1908) 161 Fed. 925, 986. 90 THE DISTRIBUTION OF GOVERNMENTAL POWERS. flatly inconsistent with the decisions that the legislature may not submit to the voters of the entire state the ques- tion whether or not a law shall become operative.^^ On the other hand, no question of the consistency of the two lines of decision could arise if the former had been based upon the ground that the legislature may grant some self- government to the localities.^^ Nor may any right of the legislature to submit the ques- tions whether or when a statute shall be executed ^^ be based upon its undoubted right to allow administrative bodies to decide some questions concerning the execution of statutes which do not involve the desirability of gov- ernmental action.^ °° As just stated, the weight of authority is decidedly against the constitutionality of a submission to the vot- 97 See note 101, infra. 08 See page 50, supra. 99 On the point that it was not the statute but the operation of the stat- ute which was contingent, see Cincinnati, W. & Z. R. Co. v. Comrs. (1852) 1 Ohio St. 77; Locke's Appeal (1873) 72 Pa. 491; United States v. Rich- ards (1910) 35 D. C. App. 540; 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, 1 Pac. 414; People v. Reynolds (1848) 5 Gill (111.) 1; State V. Kline (1907) 50 Ore. 426, 93 Pac. 237; State v. Montgomery (1912) 176 Ala., 59 So. 294, 298; compare 59 So. 299. 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 employed; if employed, it rules throughout; if not employed, it still remains 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 author- ity or discretion as to its execution, to be exercised under and in pur- suance of the law. The first cannot be done; to the latter no valid objec- tion can be made." Observe the phraseology. But while the legislature un- questionably may grant the power to use some discretion when executing a statute, yet, except where legislative power may be delegated, valid oijec- tion certainly can he made to a grant of discretion as to whether or not a statute shall he executed. 100 See note 25, supra. DELEGATION OF POWEK BY LEGISLATURE. 91 ers of the entire state of the question whether or not a law shall become operative; ^^^ and yet a concession of the validity of such legislation would not involve a con- cession of the validity 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 statute should be enforced, it would not necessarily follow that the legislature might allow such an organ to decide upon the terms of a statute, al- though unless that power were grantable the legislature might not bestow upon an administrative organ any power over railroad rates further than to apply regula- tions made by the legislature. Contingent legislation as to rates. 45. In view of the cases as to the contingent treatment of foreign corporations and the case sustaining a statute by which the pay of an officer of the state militia in ac- tive service was made the same as the pay of an officer of corresponding grade in the United States army,^^^ it seems that a state might make the local railroad rates to depend upon the rates which the federal government might establish for interstate transportation, and, con- versely, the federal government might make the inter- state rates to depend upon the rates which the states might establish for local transportation.^*^^ This would 101 See. Oberholtzer, The Referendum in America, 208-217; Cooley, Con- stitutional Limitations, 7th ed., 168 et seq.; 6 A. & E. Enc. of L., 2d ed., 1022. Compare Kadderly v. City of Portland (1903) 44 Ore. 118, 74 Pac. 710. 102 See notes 89, 90, supra. 103 This does not mean that a state legislature might in all cases make local rates depend upon the interstate rates established by the carriers, or, conversely, that Congress might in all cases make interstate rates de- 92 THE DISTRIBUTION OF GOVERNMENTAL. POWERS. certainly be true if we could be sure that after such a law was passed the basic rates would in every instance be es- tablished 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 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 several states shall be regarded by the federal courts as rules of decision in trials at common law ^°^ is hardly in point, for so far as substantive law is concerned Congress could not constitutionally have provided otherwise.^ °° And hardly analogous is the federal statute which pro- vides that in places which have been ceded by a state to the United States the punishment of offenses not specially provided for by any law of the United States shall be the same as that which at the time of the enactment of the federal statute was provided for by the law of the state which ceded the place where the offense was commit- ted,^"^^ or the federal statute which provides that in com- mon law causes the circuit and district courts shall en- pend upon local rates established by the carriers. The commerce clause would at times affect such legislation. The question is discussed in note 47 in Chapter 1, supra. 104 Rev. Stats, sec. 721; 4 Fed. Stats. An. 517; Rose, Code of Federal Procedure, sec. 12. 105 See Patterson, The United States and the States Under the Consti- tution, 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. 106 Rev. Stats, sec. 5391; Act July 7, 1898, c. 576, 30 U. S. Stats, at L. 717. See Franklin v. United States (1910) 216 U. S. 559, 30 Sup. Ct. 434, 54 L. ed. 615. DELEGATION OF POWER BY LEGISLATURE. 93 force 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.^ °'^ 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 district courts are held, any nile of court to the contrary notwithstanding.^^^ The latter statute, which, if it were interpreted in accordance with its probable meaning, would allow the state authorities incidentally to change the procedure in federal courts, ^*^^ 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 107 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, 1 Sup. Ct. 325, 27 L, ed. 196; Ex parte Boyd (1882) 105 U. S. 647, 651, 26 L. ed. 1200; Ross V. Duval (1839) 13 Pet. 45, 10 L. ed. 51; Wayman v. Southard (1825) 10 Wheat. 1, 6 L. ed. 253; Bank of the United States v. Halstead (1825) 10 Wheat. 51, 6 L. ed. 264. In spite of the decisions and the language of Mar- shall, C. J., in Wayman v. Southard, 10 Wheat, at 49, 50, 6 L. ed. at 264, 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 tlien-existing state law, for example, as to stays of execution or exemptions from execution, if the state is not seeking to thwart the fed- eral 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. 108 Rev. Stats., sec. 914; 4 Fed. Stats. An. 563; Rose, Code of Federal Procedure, sec. 900. — Consider also 2 Am. Pol. Sci. Rev. 364. 109 Not, however, of course, where the federal courts would thereby be required to act contrary to the Federal Constitution or a federal statute: see Slocum v. New Y. L. I. Co. (1913) 228 U. S. 364, 33 Sup. Ct. 523, 57 L. ed. 879; Rose, Code of Federal Procedure, sec. 900, note f. 94 THE DISTRIBUTION OF GOVERNMENTAL POWERS. to such rules: "^ the Supreme Court said that the pro- viding of such rules was not an act exclusively legislative in character and might be entrusted to the courts con- cerned."^ 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 fed- eral courts are held.^^^ But while the determination of the principles upon which rates shall be regulated is exclusively legislative in its character, and might not be entrusted by the state legislatures to Congress or by Congress to the state legis- latures, it seems that a legislative body would not be dele- gating its power if it provided that rates which were sub- ject to it should be affected as the merely incidental re- sult of regulation bj' the legislature of another sover- eignty of rates which were subject to regulation by that other body. Grants of discretion. 46. The courts have also at times sustained legislation which granted discretion to administrative organs. Where 110 Rose, Code of Federal Procedure, sec. 900, notes a, aa. Ill, Of course, it does not necessarily follow that, because the legislature 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 pur- pose for which jurisdiction was granted to the federal courts far better than would any statutes which established uniform rules of procedure and uni- form remedies upon judgments throughout the entire country. 112 See Boston & M. R. v. Gokey (1908) 210 U. S. 155, 28 Sup. Ct. 657, 52 L. ed. 1002; case there cited; Rose, Code of Federal Procedure, sec. 805, be- ginning of note b, sec. 900, note g; Hills & Co. v. Hoover (1911) 220 U. S. 329, 31 Sup. Ct. 402, 55 L. ed. 485. Rev. Stats., sec. 914, was taken from a statute enacted much later tlian that from which Rev. Stats., sec. 918, DELEGATION OF POWER BY LEGISLATURE. 95 the discretion granted was not great ^^^ the decisions are probably correct, for the legislature cannot be expected to determine every unimportant question which may arise. But other decisions which sustain larger grants of discretion ^ ^^ can be supported only on the assumption 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 opera- tion of sec. 914. 113 See, e. g.. State v. McCarty ( 1912) 5 Ala. Ap. 212, 226, 228, 59 So. 543, 547, 548; Blue v. Smith (1911) 69 W. Va. 761, 72 S. E. 1038; Lee v. Marsh (1911) 230 Pa. 351, 79 Atl. 564; State v. Wagener (1899) 77 Minn. 483, 80 N. W. 633, 46 L. R. A. 442; In re KoUock (1897) 165 U. S. 526, 17 Sup. Ct. 444, 41 L. ed. 813; language used in Waynian v. Southard (1825) 10 Wheat. 1, 43, 6 L. ed. 253, 262, 263, quoted in note 80, supra; 10 Wheat. 45, 46, 6 L. ed. 263; 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 Inter- state Com. Comn. v. Goodrich T. Co. (1912) 224 U. S. 194, 32 Sup. Ct. 436, 56 L. ed. 729; Scott v. Marley (1911) 124 Tenn. 388, 137 S. W. 492; State v. Frear (1911) 146 Wis. 291, 131 N. W. 832, 34 L. R. A. N. S. 480; Mer- chants Exchange v. Knott (1908) 212 Mo. 616, 111 S. W. 565; St. Louis, I. M. & S. Ry. Co. V. Neal (1906) 83 Ark. 591, 98 S. W. 958, 961 (affirmed on this point in St. Louis, I. M. & S. Ry. Co. v. Taylor ( 1908) 210 U. S. 281, 287, 26 Sup. Ct. 616, 617, 52 L. ed. 1061) ; State v. Bryan (1905) 50 Fla. 293, 369, 370, 39 So. 929, 953; Woodruff v. New Y. & N. E. R. Co. (1890) 59 Conn. 63, 84, 20 Atl. 17, 19; Gregory v. Kansas City (1912) 244 Mo. 523, 149 S. W. 466; In re Opinion of Justices (1907) 74 N. H. 606, 68 Atl. 873; Morton v. Pusey (1908) 237 111. 26, 86 N. E. 601. Possibly United States v. Grimaud (1911) 216 U. S. 614, 30 Sup. Ct. 576, 54 L. ed. 639; Light v. United States (1911) 220 U. S. 523, 31 Sup. Ct. 485, 55 L. ed. 570; Colo- rado & S. Ry. Co. v. State R. Comn. (1913) 54 Colo. 64, 129 Pac. 506; Clendaniel v. Conrad (1912) 25 Del., 83 Atl. 1036, 1051; State V. Corvallis & E. R. Co. (1911) 59 Ore. 450, 117 Pac. 980; Blais v. Franklin (1910) 31 R. I. 95, 77 Atl. 172; People v. Dunn (1889) 80 CaL 211, 22 Pac. 140; Donnelly v. United States (1913) 228 U. S. 243, 256, 33 Sup. Ct. 449, 452, 57 L. ed. 820, come under this head. It seems that State v. Sherow (1912) 87 Kan. 235, 123 Pac. 866, should be supported rather upon the ground that the power granted was one of local self-government. With the cases in this note compare Fite v. State (1905) 114 Tenn. 646, 658, 659, 88 S. W. 941, 944, 1 L. R. A. X. S. 520, 525; Central of Ga. Ry. Co. v. Railroad Comn. (1908) 161 Fed. 925, 985; other cases cited in note 29, su- pra; and State v. Burdge (1897) 95 Wis. 390, 70 N. W. 347, 37 L. R. A. 157; State v. Holland (1908) 37 Mont. 393, 96 Pac. 719. 114 Brady v. Mattern (1904) 125 Iowa, 158, 100 N. W. 358. (The court 96 THE DISTRIBUTION OF GOVERNMENTAL POWERS. 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 statute allowing the people of the re- spective counties to decide whether or not county bonds should be issued in aid of railroad construction) ^^^ while overlooks the insurance commissioner cases, cited in note 29, supra, and it cites Rj'an 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 com- mission case, which is one of the two commission cases cited, does not men- tion the question of delegation 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 constitutional; it cites an insurance company case which has nothing to do with the ques- tion; and it cites a case upholding the validity of an ordinance which pro- vided for the licensing of engineers.) The decisions in Louisville & N. R. Co. V. Interstate Com. Comn. (1910) 184 Fed. 118, 122; Kingman et al.. Pe- titioners (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 Massachu- setts 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 constitutional- ity of the acts considered in Zuber v. Southern Ry. Co. (1911) 9 Ga. App. 539, 71 S. E. 937; 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) 76 Kan. 407, 92 Pac. 606; State v. Barringer (1892) 110 N. C. 525, 14 S. E. 781; People v. Dunn (1889) 80 Cal. 211, 22 Pac. 140, is not clear. See also State v. Great N. Ry. Co. (1912) 68 Wash. 257, 123 Pac. 8; Schaake v. Dolley (1911) 85 Kan. 598, 118 Pac. 80; City of Centralia v. Smith (1903) 103 Mo. App. 438, 77 S. W. 488. Compare In re County Comrs. (1908) 22 Okla. 435, 98 Pac. 557; Central of Ga. Ry. Co. v. Railroad Comn. (1908) 161 Fed. 925, 985, in the latter of which the court declared unconstitutional a state law in which an attempt was made to confer upon a commission a large amount of dis- cretion as to rates. 115 See note 99, supra. The decision in Picton v. Cass County (1904) 13 N. D. 242, 100 N. W. 711, is sound, but the reason given for it is not, unless the fact that the resources of the state were involved constitutes an excep- DELEGATION OF POWER BY LEGISLATURE. 97 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 complete 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 rea- sons for administrative decisions are not announced in tional circumstance. The same reason had been improperly given in a niim- ber 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 Ag- riculture 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 Congi-ess 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 under- growth "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 oflficers. 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 appro- priation of public property by individuals. See also United States v. Gri- maud (1911) 220 U. S. 506, 31 Sup. Ct. 480, 55 L. ed. 563 (1910) 216 U. S. 614, 30 Sup. Ct. 576, 55 L. ed. 639; Light v. United States (1911) 220 U. S. 523, 31 Sup. Ct. 485, 55 L. ed. 570; Payne & Butler v. Providence G. Co. (1910) 31 R. I. 295, 77 Atl. 145.— 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 United States v. Grimaud (1911) 220 U. S. 506, 517, 31 Sup. Ct. 480, 483, 55 L. ed. 563; Wayman v. Southard (1825) 10 Wheat. 1, 43, 6 L. ed. 253; the courts have said that a legislature "may authorize others to do those things which it might properly, yet cannot un- derstandingly 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 prop- erly 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. 98 THE DISTRIBUTION OF GOVEENMENTAL POWERS. advance or where that organ does not decide in advance upon any guiding principles whatever its determinations are fully as legislative in their nature.^ ^"^ The fact that no act legislative in character preceded its determinations in specific cases cannot make those determinations valid. The legislature alone has power to change the require- ments of the government as to the conduct of individuals ; and while the legislature, though it may state its require- ments 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 administrative organ would ex- ercise legislative power if it enforced rules which were not based upon principles established by the legislature or if it interfered with the conduct of individuals without the previous establishment of any rule whatever. Possible differences in extent and character of regulation. 47. Of course, if there were only one degree and char- acter of rate regulation which a legislature might consti- tutionally 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 obvious that there are constitutionally possible 116 Where no uniform rules are adopted the danger of injustice is, of course, far greater than when they are adopted. The administrative organ may act not merely at haphazard but with partiality, and the opportunity to work 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 adrainistratve 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. DELEGATION OF POWER BY LEGISLATURE. 99 regulations of rates which differ in extent and character. The legislature may seek merely to prevent manifestly extortionate or manifestly discriminatory charges; or it may, within broad constitutional limits, go further and, disregarding the question whether the rates and the rela- tions between rates which have been fixed by the carriers are manifestly improper in themselves, it may command that the rates and the relations between rates be made to conform to principles of public policy laid down by the legislature."^ And, of course, in deciding upon the policy 117 As Mr. Victor Morawetz said before the Senate Committee on Inter- state 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 ( 1 ) 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 particu- lar rate which, in the opinion of a commission or of some particular per- son, 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." See also Morawetz, The Power of Congress to Regulate Railway Rates, 18 Harv. L. Rev. 572, 579. 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 commission to fix rates at any point between those extremes if the legislature declares what that point shall be.- — The opinion in Trustees v. Saratoga G., E. L. & P. Co. (1908) 191 N. Y. 123, 146, 147, 83 N. E. 693, 700, 18 L. R. A. N. S. 713, does not call for serious consideration. At that point the court ap- parently overlooked the fact that a legislature may itself name specific rates, and it is not clear that the court realized that the word "reasonable" is used in more than one sense. And in Interstate C. S. Ry. Co. v. Common- 100 THE DISTRIBUTION OF GOVERNMENTAL POWERS. to be followed and in settling the claims of conflicting in- terests, there are abundant opportunities for differences of opinion and there are at least several possible solutions of the questions at issue. For the problems involved in rate regulation are complicated and important. A legis- lature, in deciding upon principles of regulation, may af- fect economic conditions within the territory subject to it at least as greatly as they could be affected by any possi- ble changes in the federal tariff.^^^ Since, therefore, there is a wide range of possible differences in the extent and character of regulations, it necessarily follows that, un- wealth (1907) 207 U. S. 79, 86, 28 Sup. Ct. 26, 27, .52 L. ed. Ill, Holmes, J., apparently did not give sufficient consideration to the use of the word "reasonable." On that point he spoke only for himself. 118 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 manu- factured products, as between grain and Hour 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 substi- tuted 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 maximvmi and not absolute the carrier may be able to allow the relation between the rates ac- tually 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 maxi- mum hauling capacity of its engines, in that way giving to the large pro- ducer or the producer at a large shipping centre an advantage over a com- petitor who produces less or who is less favorably situated. DELEGATION OF POWER BY LEGISLATURE. 101 less legislative power may be delegated, when the legisla- ture entrusts to a commission the power of naming speci- fic rates it must state definitely what principles are to be made effective by that commission. Do the statutes establish definite principles? 48. Some of the courts which have sustained statutes authorizing 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 legis- lation. We have gathered together the cases in which the courts took that position and have shown the provisions of the statutes there involved.^^^ But none of those courts realized that important differences in rate regulation are constitutionally possible.^^^ Consequently, of course, none of those courts sufficiently considered the question whether in the statute before it the legislature had actu- ally established definite principles for the guidance of the commission in naming specific rates. And for that reason it cannot be said that that question has been finally set- tled as to any of those statutory provisions.^^^ 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 119 See note 37, supra. 120 See, however, Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn. (1908) 1.36 Wis. 146, 163, 164, 116 N. W. 905, 911, 17 L. R. A. N. S. 821, 830. 121 See, however, case cited in note 30, supra, where a railroad commis- sion statute was declared unconstitutional upon the ground that it sought to delegate legislative power. On the other hand, see Louisville & N. R. Co. V. Interstate Com. Comn. (1910) 184 Fed. 118, where "reasonable" is used in two senses, and where the court takes very loose views (p. 122) as to the necessity for the legislative establishment of guiding principles. 102 THE DISTRIBUTION OF GOVERNMENTAL POWERS. carrier would be extortionate, and while there may be some doubt as to just what would constitute an extortion- ate 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 ''reason- able" in any other sense which is so definite that, if in- terpreted in that way, a grant of power to name * * reason- able 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 em- powering 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 rail- road transportation would assert that, on principle, be- tween the extremes of extortion and confiscation there can be only one rate which is justifiable.^^- While, however, a grant of the power to name ' ' reason- able rates" is constitutional if that term is used by the legislature to enunciate a definite principle in accordance with which the commission must act, yet when that term is inextricably bound up with other terms which are in- definite 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 122 As Mr. Victor Morawetz said before the Senate Committee on Inter- state 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." See also note 117, supra. DELEGATION OF POWER BY LEGISLATURE. 103 upon any ground whicli 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 form- ulation of principles under the law which have impor- tant bearing upon the business of carriers and the com- merce, not only of the immediate locality, but often of the entire countrj^ ' ' ^^^ And while Congress may not have 123 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 disposition 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 considerations, so that a just rate cannot be determined inde- pendently of the theory of social progress." See also Fourth Annual Re- port (1890) p. 6; Texas & P. Ry. Co. v. Interstate Com. Comn. (1896) 162 U. S. 197, 234, 16 Sup. Ct. 666, 681, 40 L. ed. 940. Commissioner Prouty said in the American 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 trafiic 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, taking everything into account, ought fairly to be done." In the same article he declared, p. 596, "It exercises precisely the same administrative function in correcting as does the trafiic official in establishing" rates, with the qualifi- cation 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 trafiic 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." Compare the end of section 40, supra. 104 THE DISTRIBUTION OF GOVERNIVIENTAI, POWERS. realized the indefiniteness of its grant of power, it is true that a consistent application of the law involves the form- ulation of important principles which may affect fourteen billion 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 sec- tion of the country .^2^ And it involves the fomiulation of those principles by an administrative body and not by Congress. If a legislative body may constitutionally grant such 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,^^'** and not upon one subject only, but upon every subject which now comes before the legislatures?^-^ 124 That the grant of power has such a scope seems clear notwithstanding Southern P. Co. v. Interstate Com. Comn. (1911) 219 U. S. 433, 31 Sup. Ct. 288, 55 L. ed. 283; Interstate Com. Comn. v. Northern P. Ry. Co. ( 1910) 216 U. S. 538, 30 Sup. Ct. 301, 54 L. ed. 608; Interstate Com. Comn. v. Chicago G. W. Ry. Co. (1908) 209 U. S. 108, 28 Sup. Ct. 493, 52 L. ed. 705. And see Interstate Com. Comn. v. Union P. R. Co. (1912) 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed. 308. Compare sec. 51, infra. 124a Indeed, the President can now control the decisions of the Interstate Commerce Commission, for its members are removable at his pleasure: see section 11 of the Act. 125 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, per- petuate its power in a situation like that of the second session of the Fifty- first Congress. President, Senate and House of Representatives then be- longed to the same political party, and liad 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 EXTENT OF POWER OF COURTS. 105 EXTENT OF POWER OF COURTS. General principles. 49. A court decides in specific instances whether par- ticular persons who are before it have complied with the law of the land or are complying with that law, and if they have not complied with that law or are not comply- ing with it, the court awards against such persons de- crees of compliance, reparation or punishment. Such is the extent of its duty and of its power. It cannot make the law; ^^^ it cannot change the law;^^^ and it cannot refuse to recognize changes in the law which have been made by the appropriate authorities unless such changes violate the constitution.^^^ A rule of law may be abol- ished and the duty to apply a new rule of law may be im- posed upon the court. in the future, perhaps, not improbably, be passed, which should secure to the President the right of legislation during those two years, while the en- suing 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." — See also discussion in U. of Pa. L. Rev., Oct., 1908, p. 101. i26Prentis v. Atlantic C. L. Co. (1908) 211 U. S. 210, 226, 29 Sup. Ct. 67, 69, 53 L. ed. 150; United States v. Evans (1909) 213 U. S. 297, 29 Sup. Ct. 507, 53 L. ed. 803; Express Cases (1886) 117 U. S. 1, 29, 6 Sup. Ct. 542, 628, 556, 29 L. ed. 791; Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co. (1884) 110 U. S. 607, 686, 4 Sup. Ct. 185, 194, 28 L. ed. 291; Road Imp. Dist. v. Glover (1909) 89 Ark. 513, 117 S. W. 544; notes 129, 139, 141, infra. Compare Kansas v. Colorado (1907) 206 U. S. 46, 27 Sup. Ct. 655, 51 L. ed. 950 (commented on in Trickett, The Newest Neologism of the Supreme Court, 41 Am. L. Rev. 729; note in 21 Harv. L. Rev. 47) ; 6 A. & E. Enc. of L., 2d ed., p. 1033; Pound, Common Law and Legislation, 21 Harv. L. Rev. 383; Judge-made Law, 35 Nat. Corp. Rep. 613; Hornblower, A Century of "Judge-made" Law, 7 Col. L. Rev. 453; Dicey, Law and Opinion in Eng- land, 359, 481; Pollock, Essays in Jurisprudence and Ethics, 237; Dicey, The Law of the Constitution, 7th ed., 58; Rand, Swift v. Tyson Versus Gelpcke v. Dubuque, 8 Harv. L. Rev. 328. 127 See note 126, supra. 128 See note 16, supra. 106 THE DISTKIBUnON OF GOVERNMENTAL POWERS. Distinction between judicial and legislative power over rates. 50. These principles are abundantly supported by the weight of authority, and they unquestionably apply in the case of rate regulation. Indeed, they have been applied by the Supreme Court to problems of rate regulation in language almost as definite as that which has been used in the text.^2^ It is true that there are expressions in some opinions which assert the existence of more power in the courts and of less power in the legislatures and it is true that in other instances the court has failed to recognize the existence of some powers which may be entrusted to the courts. There may be found in the opinions a number of expressions which are inconsistent with the statements which have just been made; and those expressions have in several instances confused those who subsequently en- acted state legislation; ^^° but such expressions are not in accord with the weight of authority. Thus, the court has asserted that the common law rule as to the validity of rates for transportation remained in force in spite of legislation and that the court had power to declare invalid rates established by the legislature or under its authority if the rates so established did not com- 129 "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be ap- plied thereafter to all or some part of those subject to its power. The estab- lishment of a rate is the making of a rule for the future, and therefore is an act legislative and not judicial in kind:" Prentis v. Atlantic C. L. Co. (1908) 211 U. S. 210, 226, 29 Sup. Ct. 67, 69, 53 L. ed. 150. See also other cases cited in note 19, supra; and Muskrat v. United States (1911) 219 U. S. 346, 31 Sup. Ct. 250, 55 L. ed. 246. 130 See, for example, the statutes considered in 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; Prentis v. Atlantic C. L. Co. (1908) 211 U. S. 210, 29 Sup. Ct. 67, 53 L. ed. 150. EXTENT OF POWER OF COURTS. 107 ply with the common law.^^^ In other words, in some cases the court has gone beyond an assertion of power to refuse to enforce legislation which it considers unconsti- tutional, and it has measured the boundaries of the judi- cial power by the fact that courts once enforced particu- lar rules of substantive law. But we have already con- sidered this position in another part of the present chap- ter ^^- and we have seen that the position is clearly un- sound. The legislature may unquestionably make changes in the common law. It is also true that the court has said that ''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." ^^^ And yet it is clear that the court in so saying was not felicitous in expressing the distinction between judicial and legislative acts. The court should have said, as it has said in later cases,^^^ that it is the distinction between applying an existing rule of law and adopting a new and possibly different rule of law for relations which may exist in the future. The decision of the question whether the law has been complied with is, of course, a judicial act.^^^ On the other hand, the legislature may change the law, or it may state prospectively ^^'^ what 131 See latter part of note 16, supra. 132 See sec. 33, supra. 133 Interstate Com. Comn. v. Cincinnati, N. O. & T. P. Ry. Co. (1897) 167 U. S. 479, 499, 17 Sup. Ct. 896, 900, 42 L. ed. 243. 134 See cases in note 19, supra. 135 Interstate Com. Comn. v. Brimson (1894) 154 U. S. 447, 485, 14 Sup. Ct. 1125, 1136, 38 L. ed. 1047; concurring opinion in Winchester & S. R. Co. V. Commonwealth (1906) 106 Va. 264, 281, 55 S. E. 692, 698; Barrett V. Indiana (1913) 229 U. S. 26, 30, 33 Sup. Ct. 692, 693, 57 L. ed. 1050. Compare discussion in Louisville & IST. R. Co. v. Shiler (1911) 186 Fed. 176. 136 Yet on the validity of retroactive laws see Johannessen v. United 108 THE DISTRIBUTION OF GOVERNMENTAL POWERS. would be a sufficient compliance with the existing law, or it may authorize an administrative body to state the law prospectively if the legislature has laid down sufficient rules for the guidance of the administrative body. But while the legislature has power to change the law and to prescribe the rates which shall be charged in the future, and while the courts have not the power to change the law, judicial acts are not always strictly retrospec- tive, for as a general rule a court may require the observ- ance in the future of the law as it stands at the present time.^^"^ This may be done in a proceeding for a man- damus or an injunction.^ ^^ states (1912) 225 U. S. 227, 32 Sup. Ct. 613, 56 L. ed. 1066; Kentucky U. Co. V. Commonwealth of Kentucky (1911) 219 U. S. 140, 152, 153, 31 Sup. Ct. 171, 177, 55 L. ed. 137, and cases there cited; Black, Constitutional Law, 3d ed., 752 et seq.; In re Coburn (1913) Cal., 131 Pac. 352, 355, 356; State Comn. in Lunacy v. Welch (1913) Cal., 129 Pac. 974. Compare Green- ough V. Greenough (1849) 11 Pa. St. 494; Swigart v. Baker (1913) 229 U. S. 187, 33 Sup. Ct. 645, 57 L. ed. 1143. 137 In Janvrin, Petitioner (1899) 174 Mass. 514, 517, 47 L. R. A. 319, 321, sub nom. Janvrin v. Revere W. Co., 55 N. E. 381, 382, where the court was asked to establish the rate to be charged for water, the court said, by Holmes, C. J., that the statute "does not undertake merely to make of the court a commission to determine what rule shall govern people who are not yet in relation to each other, and who may elect to enter or not to enter into relations as they may or may not like the rule which we lay down: it calls on us to fix the extent of actually existing rights. With regard to such rights judicial determinations are not confined to the past. If it legitimately might be left to this court to decide whether a bill for water furnished was reason- able, and, if not, to cut it down to a reasonable sum, it equally may be left to the court to enjoin a company from charging more than a reasonable sum in the immediate future." See also Bitterman v. Louisville & N. R. Co. (1907) 207 U. S. 205, 228, 229, 28 Sup. Ct. 91, 100, 52 L. ed. 171; West Vir- ginia N. R. Co. V. United States (1904) 134 Fed. 198; Tift v. Southern Ry. Co. (1903) 123 Fed. 789 (1905) 138 Fed. 753, affirmed Southern Ry. Co. v. Tift (1907) 206 U. S. 428, 27 Sup. Ct. 709, 51 L. ed. 1124; Packet Co. v. Catlettsburg (1881) 105 U. S. 559, 565, 26 L. ed. 1169; Montezuma C. Co. V. Smithville C. Co. (1910) 218 U. S. .371, 31 Sup. Ct. 67, 54 L. ed. 1074; M. C. Kiser Co. v. Central of Ga. Ry. Co. ( 1907 ) 158 Fed. 193 ; Interstate Com. Comn. v. Chicago, B. & Q. R. Co. (1899) 94 Fed. 272, 98 Fed. 173; Tyrone G. & W. Co. v. Burley (1902) 19 Pa. Super. 348, 354; Central I. W. EXTENT OF POWER OF COURTS. 109 Yet, of course, a court may so act only in specific cases wherein all of the essential parties have been before it,^^^ and only in cases in which the court possesses jurisdic- tion. ^^^ Thus it does not follow that where the Supreme Court has declared a state regulation unconstitutional the Supreme Court may go further and declare what regula- tions would be constitutional; "^ the statute may pre- scribe a method of enforcement which withdraws some questions from the determination of the courts; ^^^ and it V. Pennsylvania R. Co. (1895) 17 Pa. Co. Ct. 651, 5 Pa. Dist. 247; Menaeho V. Ward (1886) 27 Fed. 529; Southern Ex. Co. v. Memphis & L. R. R. Co. (1881) 8 Fed. 799 (of which the case last cited was overruled on another ground in Express Cases (1886) 117 U. S. 1, 6 Sup. Ct. 542, 29 L. ed. 791) ; S L. R. A. N. S. 529 ; and note 138, infra. Compare Gulf C. Co. v. Harris (1908) 158 Ala. 343, 354, 48 So. 477, 481, 24 L. R. A. N. S. 399, 403, 404; Colorado T. Co. v. Wilmore (1913) Colo., 129 Pac. 204; note 146, infra. 138 See cases in note 137, supra, and also Cen. Dig., Injunction, sec. 141; Cen. Dig., Mandamus, sec. 269; Dec. Dig., Mandamus, sec. 134; Dec. Dig., Carriers, sees. 18 (6), 201; Dec. Dig., Street Railroads, sec. 57 (6) ; Dec. Dig., Telegraphs and Telephones, sec. 33 ( 1 ) . 139 Brymer v. Butler Water Co. (1897) 179 Pa. 231, 36 Atl. 249, 36 L. R. A. 260; State v. Johnson (1900) 61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662; and see Salt R. V. C. Co. v. Nelssen (1906) 10 Ariz. 9, 85 Pac. 117, 12 L. R. A. N. S. 711; San Diego L. & T. Co. v. Jasper (1903) 189 U. S. 439, 440, 23 Sup. Ct. 571, 47 L. ed. 892; Muskrat v. United States (1911) 219 U. S. 346, 31 Sup. Ct. 250, 55 L. ed. 246; note in 8 L. R. A. N. S. 529; Pen- sacola & A. R. Co. v. State ( 1889) 25 Fla. 310, 5 So. 833, 3 L. R. A. 661, 37 A. & E. R. Cas. 579. Compare Montezuma C. Co. v. Smithville C. Co. (1910) 218 U. S. 371, 31 Sup. Ct. 67, 54 L. ed. 1074. 140 See, e. g., Missouri P. Ry. Co. v. United States (1903) 189 U. S. 274, 23 Sup. Ct. 507, 47 L. ed. 811; Capital C. G. Co. v. City of Des Moines (1896) 72 Fed. 818, 822; and also Brown on Jurisdiction, chap. 2. 141 Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 400, 14 Sup. Ct. 1047, 1055, 38 L. ed. 1014. And see Lanning v. Osborne (1896) 76 Fed. 319, 336; Montana, W. & S. R. Co. v. Morley (1912) 198 Fed. 991, 1008; Tram- mell V. Dinsmore (1900) 102 Fed. 794; Chicago, M. & St. P. Ry. Co. v. Tompkins (1898) 90 Fed. 363, 365; Minneapolis, St. P. & S. S. M. Ry. Co. V. Railroad Comn. (1908) 136 Wis. 146, 116 N. W. 905, 17 L. R. A. N. S. 821. 142 See sec. 51, infra, and, by way of analogy, note 28 in Chap. 1, supra; and also Morrisdale C. Co. v. Pennsylvania R. Co. (1913) 230 U. S. 304, 33 Sup. Ct. 938, 57 L. ed. 1494; Proctor & Gamble Co. v. United States (1912) 110 THE DISTRIBUTION OF GOVERNMENTAL POWERS. is also quite conceivable that a law might be so indefi- nite as to be incapable of enforcement, ^^^ or surrender to the courts such broad power to say what the law should be as to be unconstitutional as delegating legislative power to the courts.^^^ Judicial review of administrative orders establishing rates. 51. As we have already seen, the courts have in the ab- sence of statute a very limited power to state in specific form the rates which may be charged for future transpor- tation. So also it seems clear that the legislature may grant to a court the power to name such rates in cases wherein all of the essential parties are before the court. And it has been held that the legislature may provide that the decisions of a commission shall constitute merely prima facie evidence as to what rates will comply with the 225 U. S. 282, 32 Sup. Ct. 761, 56 L. ed. 1091; Hooker v. Knapp (1912) 225 U. S. 302, 32 Sup. Ct. 769, 56 L. ed. 1099; Texas & P. Ry. Co. v. Abi- lene C. O. Co. (1907) 204 U. S. 426, 27 Sup. Ct. 350, 51 L. ed. 553; Osborne V. San Diego L. & T. Co. ( 1900) 178 U. S. 22, 20 Sup. Ct. 860, 44 L. ed. 961 ; Baltimore & 0. R. Co. v. United States ex rel. Pitcairn C. Co. (1910) 215 U. S. 481, 30 Sup. Ct. 164, 54 L. ed. 292; Honolulu R. T. & L. Co. v. Hawaii (1908) 211 U. S. 282, 29 Sup. Ct. 55, 53 L. ed. 186; Atlantic C. L. R. Co. v. Macon G. Co. (1909) 166 Fed. 206; Meeker v. Lehigh V. R. Co. (1908) 162 Fed. 354; Erie R. Co. v. Wenaque L. Co. (1908) 75 N. J. L. 878, 69 Atl. 168; Nebraska T. Co. v. State (1898) 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113; People's G. L. & C. Co. v. Hale (1901) 94 111. App. 406, 424; Brown on Jurisdiction, chap. 2. 143 Louisville & N. R. Co. v. Railroad Comn. of Tennessee (1884) 19 Fed. 679, 692, 693; Louisville & N. R. Co. v. Commonwealth (1896) 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209; State v. Texas & N. 0. R. Co. (1907) Tex. Civ. App., 103 S. W. 653; State of Louisiana v. Gaster (1893) 45 La. Ann. 636, 12 So. 739. Compare Nash v. United States (1913) 229 U. S. 373, 33 Sup. Ct. 780, 57 L. ed. 1232; Ohio v. Dollison (1904) 194 U. S. 445, 24 Sup. Ct. 703, 48 L. ed. 1062; Freund, Police Power, p. 25. 144 See cases cited in 8 Cyc. 835 and cumulative supplement thereto. Compare Standard Oil Co. v. United States (1911) 221 U. S. 1, 69, 31 Sup. Ct. 502, 519, 55 L. ed. 619. EXTENT OF POWER OF COURTS. Ill principles laid down by the legislature and may subject those decisions to review by the courts, both on the law and the facts,^^^ in so far as relates to the application of those decisions to parties who are then before the court.^^^ But the legislature may go further than this. It may establish general principles, authorize a commission to state in a more specific form the law so laid down, and re- quire the courts to enforce those more specific statements of the law, declaring that the orders of the commission shall be final unless beyond the power which it may con- stitutionally exercise, or beyond its statutory authority, or based upon a mistake of law.^*'^ In considering the 145 See note 33, supra; Proctor & Gamble Co. v. United States (1912) 225 U. S. 282, 297, 32 Sup. Ct. 761, 767, 56 L. ed. 1091; Interstate Com. Comn. V. Alabama M. Ry. Co. (1897) 168 U. S. 144, 18 Sup. Ct. 45, 42 L. ed. 414; United States v. Duell (1899) 172 U. S. 576, 19 Sup. Ct. 286, 43 L. ed. 559; Tift v. Southern Ry. Co. (1905) 138 Fed. 753. Compare Chicago, I. & L. Ry. Co. V. Railroad Comn. (1911) 175 Ind. 630, 644, 645, 95 N. E. 364, 369. 146 But as to power of court to establish schedules of rates for the gen- eral public see cases in note 139, supra; Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 375, 72 N. W. 713, 716; State ex rel. Sheets v. Toledo H. T. Co. (1905) 72 Ohio St. 60, 74 N. E. 162; Nebraska T. Co. v. State (1898) 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113; Southern P. Co. v. Colorado F. & I. Co. (1900) 101 Fed. 779; McNulty v. Brooklyn H. R. Co. (1900) 66 N. Y. Supp. 57; People ex rel. Central P., N. & E. R. Co. v. Will- cox (1909) 194 N. Y. 383, 87 N. E. 517; Western U. T. Co. v. Myatt (1899) 98 Fed. 335; 8 L. R. A. N. S. 529. Compare Railroad Comn. v. Weld & Neville (1903) 96 Tex. 394, 73 S. W. 529; Railroad Comn. v. Houston & T. C. R. Co. (1897) 90 Tex. 340, 38 S. W. 750. 147 See Interstate Com. Comn. v. Union P. R. Co. (1912) 222 U. S. 541, 547, 32 Sup. Ct. 108, 111, 56 L. ed. 308; Interstate Com. Comn. v. Chicago, R. I. & P. Ry. Co. (1910) 218 U. S. 88, 30 Sup. Ct. 651, 54 L. ed. 946; and also Long I. W. S. Co. v. Brooklyn (1897) 166 U. S. 685, 695, 17 Sup. Ct. 718, 722, 41 L. ed. 1165; Noyes, American Railroad Rates, 250; Prouty, Court Review of the Orders of the Interstate Commerce Commission, 18 Yale L. J. 297, 300; note in Wigmore on Evidence, V, p. 127; citations at end of note 16, supra; section 117, infra. Compare Interstate Com. Comn. v. Louisville & N. R. Co. (1913) 227 U. S. 88, 33 Sup. Ct. 185, 57 L. ed. 431; Southern P. Co. v. Interstate Com. Comn. (1911) 219 U. S. 433, 31 Sup. Ct. 288, 55 L. ed. 283; Gulf, C. & S. F. Ry. Co. v. Railroad Comn. (1909) 102 Tex. 338, 116 S. W, 795. 112 THE DISTRIBUTION OF GOVERNMENTAL POWERS. subject of orders of the commission for the purpose of en- forcing or restraining their enforcement, the court may be confined by statutory operation to determining whether there have been violations of the constitution, a want of conformity to statutory authority, or to ascer- taining whether power has been so arbitrarily exercised as virtually to transcend the authority conferred, al- though it may not be technically doing so.^"*^ It is true that questions of fact may be involved in the determination of questions of law, so that an order reg- ular on its face may be set aside if it appears that the rate is so low as to be confiscatory and in violation of the constitutional prohibition against taking property with- out due process of law ; or if the commission acted so arbi- trarily and unjustly as to fix rates contrary to evidence or without evidence to support it; or if the authority therein involved has been exercised in such an unreasonable man- ner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the valid- ity of the exercise of the power.^^^ But "in determining these mixed questions of law and fact the couii; confines itself to the ultimate question as to whether the commis- sion acted within its power. It will not consider the ex- pediency or wisdom of the order, or whether, on like tes- 148 Proctor & Gamble Co. v. United States (1912) 225 U. S. 282, 297, 298, 32 Sup. Ct. 7G1, 767, 56 L. ed. 1091; Interstate Com. Comn. v. Union P. R. Co. (1912) 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed. 308; Interstate Com. Comn. V. Illinois C. R. Co. (1910) 215 U. S. 452, 30 Sup. Ct. 155, 54 L. ed. 280; Florida E. C. Ry. Co. v. United States (1912) 200 Fed. 797, 802; Chi- cago, I. & L. Ry. Co. V. Railroad Comn. (1911) 175 Ind. 630, 644, 645, 95 N. E. 364, 369; Kansas C. S. Ry. Co. v. United States (1913) 204 Fed. 641, 644, 645. 149 Interstate Com. Comn. v. Union P. R. Co. (1912) 222 U. S. 541, 547, 32 Sup. Ct. 108, 111, 56 L. ed. 308; cases there cited; Interstate Com. Comn. V. Louisville & N. R. Co. (1913) 227 U. S. 88, 33 Sup. Ct. 185, 57 L. ed. 431; Stickney v. Interstate Com. Comn. (1908) 164 Fed. 638. Compare Noyes, American Railroad Rates, 250. EXTENT OF POWER OF COURTS. 113 timony, it would have made a similar ruling." The con- clusion of the commission "is subject to review, but when supported by evidence is accepted as final; not that its decision, involving as it does so manj^ and such vast pub- lic interests, can be supported by a mere scintilla of proof —but the courts will not examine the facts further than to determine whether there was substantial evidence to support the order. "^^*^ By way of caution it may be added that the question whether the order of a commission is in excess of statu- tory authority is a question for the federal courts only when it deals with the federal commission or when, deal- ing with a state commission, it arises in a federal court in a case in which the court has obtained jurisdiction on some other ground, such as the diverse citizenship of the parties.^^^ 150 Interstate Com. Comn. v. Union P. R. Co. (1912) 222 U. S. 541, 547, 548, 32 Sup. Ct. 108, 111, 56 L. ed. 308. See also Interstate Com. Comn. V. Delaware, L. & W. R. Co. (1911) 220 U. S. 235, 31 Sup. Ct. 392, 55 L. ed. 448; Southern P. Co. v. Interstate Com. Comn. (1911) 219 U. S. 433, 31 Sup. Ct. 288, 55 L. ed. 283; Illinois C. R. Co. v. Interstate Com. Comn. (1907) 206 U. S. 441, 27 Sup. Ct. 700, 51 L. ed. 123; Cincinnati, H. & D. Ry. Co. V. Interstate Com. Comn. (1907) 206 U. S. 142, 27 Sup. Ct. 648, 51 L. ed. 995; Zakonaite v. Wolf (1912) 226 U. S. 272, 33 Sup. Ct. 31, 57 L. ed. 218; People v. New York State Board (1905) 199 U. S. 48, 52, 25 Sup. Ct. 713, 715, 50 L. ed. 79; Bates & Guild Co. v. Payne (1904) 194 U. S. 106, 24 Sup. Ct. 595, 48 L. ed. 894; Minneapolis, St. P. & S. S. M. Ry. Co. V. Railroad Comn. (1908) 136 Wis. 146, 116 N. W. 905, 17 L. R. A. N. S. 821. Compare United States v. Baltimore & O. S. W. R. Co. (1912) 226 U. S. 14, 20, 33 Sup. Ct. 5, 6, 57 L. ed. 104. 151 See notes 45 to 47 in Chapter 3, infra. On the finality of decisions of state courts on questions of fact see Thomas v. Texas (1909) 212 U. S. 278, 29 Sup. Ct. 393, 53 L. ed. 512, and notes 45, 46 in Chapter 9, infra. And see Southern P. Co. v. Campbell (1913) 230 U. S. 537, 33 Sup. Ct. 1027, 57 L. ed. 1610. CHAPTER ni. THE DUE PROCESS CLAUSES— POSITION OF COURT INTRODUCTORY. 52. The clauses stated. 53. Clauses relate to diflFerent governments. 54. Presumption that in other respects clauses have same meaning. 55. Possible points of diflFerence are ignored by the court. 56. Importance of understanding the provision. 57. THE "PERSONS" PROTECTED. THE ORGANS OF GOVERNMENT RESTRAINED. 58. Fourteenth Amendment restrains states and their organs of gorern- ment. 59. Fifth Amendment restrains organs of federal government. 60. Organs for establishing limitations upon rates. THE EXTENT OF THE RESTRAINT. 61. The proper scope of the provision. 62. The position of the court. 63. A suitable procedure. 64. Procedure in establishing limitations upon rates. 65. Procedure in enforcing limitations upon rates. 66. Provision regarded as a substantive restraint. 67. No complete general statement as to restraint. 68. Particular lines of decision. 69. Detailed application of rules. 70. Different tests of constitutionality. INTRODUCTORY. The clauses stated. 52. The constitutional restraints which we shall con- sider in this chapter are the provision contained in the Fifth Amendment "nor shall any person .... be de- prived of life, liberty or property without due process of law" and the provision contained in the Fourteenth 114 INTRODUCTORY. 115 Amendment ''nor shall any state deprive any person of life, liberty or property without due process of law. ' ' Clauses relate to different governments. 53. The Fifth Amendment relates to the federal gov- ernment ^ and does not restrain the state governments,^ while the Fourteenth Amendment relates to the state gov- ernments ^ and does not restrain the federal government.* 1 Adair v. United States (1908) 208 U. S. 161, 28 Sup. Ct. 277, 52 L. ed. 436. See also Ex parte Lange (1873) 18 Wall. 163, 21 L. ed. 872; United States V. Lynah (1903) 188 U. S. 445, 23 Sup. Ct. 349, 47 L. ed. 539; Mo- nongahela N. Co. v. United States (1893) 148 U. S. 312, 13 Sup. Ct. 622, 37 L. ed. 463; Garfield v. Goldsby (1908) 211 U. S. 249, 29 Sup. Ct. 62, 53 L. ed. 168; United States ex rel. Turner v. Fisher (1911) 222 U. S. 204, 32 Sup. Ct. 37, 56 L. ed. 165; Oclioa v. Hernandez y Morales (1913) 230 U. S. 139, 33 Sup. Ct. 1033, 57 L. ed. 1427. 2 Ensign v. Pennsylvania (1913) 227 U. S. 592, 597, 33 Sup. Ct. 321, 322, 57 L. ed. 658; Hunter v. Pittsburgh (1907) 207 U. S. 161, 176, 28 Sup. Ct. 40, 45, 52 L. ed. 151; Barrington v. Missouri (1907) 205 U. S. 483, 27 Sup. Ct. 582, 51 L. ed. 890; Howard v. Kentucky (1906) 200 U. S. 164, 26 Sup. Ct. 189, 50 L. ed. 421; Jack v. Kansas (1905) 199 U. S. 372, 26 Sup. Ct. 73, 50 L. ed. 234; Ohio v. Dollison ( 1904) 194 U. S. 445, 24 Sup. Ct. 703, 48 L. ed. 1062; Winous P. S. C. v. Caspersen (1904) 193 U. S. 189, 24 Sup. Ct. 431, 48 L. ed. 675; Capital C. D. Co. v. Ohio ( 1902) 183 U. S. 238, 22 Sup. Ct. 120, 46 L. ed. 171; Chapin v. Fye (1900) 179 U. S. 127, 21 Sup. Ct. 71, 45 L. ed. 119; Louisville & N. R. Co. v. Woodson (1890) 134 U. S. 614, 623, 10 Sup. Ct. 628, 631, 33 L. ed. 1032. See also Twining v. New Jersey (1908) 211 U. S. 78, 93, 29 Sup. Ct. 14, 17, 53 L. ed. 97; Ughbanks v. Armstrong (1908) 208 U. S. 481, 487, 28 Sup. Ct. 372, 374, 52 L. ed. 582; Corkran 0. & D. Co. v. Arnaudet (1905) 199 U. S. 182, 193, 26 Sup. Ct. 41, 44, 50 L. ed. 143; Brown v. New Jersey (1899) 175 U. S. 172, 20 Sup. Ct. 77, 44 L. ed. 119. Compare the language, which was doubtless used thoughtlessly, in Cincin- nati, I. & W. Co. V. Connersville (1910) 218 U. S. 336, 343, 31 Sup. Ct. 93, 94, 54 L. ed. 1060. 3 See sees. 58, 74, infra. 4 In view of the wording of the Amendment this point is clear in spite of expressions in Patterson v. Bark Eudora (1903) 190 U. S. 169, 23 Sup. Ct. 821, 47 L. ed. 1002; Plessy v. Ferguson (1896) 163 U. S. 537, 551, 16 Sup. Ct. 1138, 1143, 41 L. ed. 256; United States v. Heinze (1910) 218 U. S. 532, 546, 31 Sup. Ct. 98, 102, 54 L. ed. 1139. 116 DUE PROCESS CLAUSES— POSITION OF COURT. Assumption that in other respects clauses have same meaning. 54. In our discussion af the clauses we shall assume that, standing alone, their terms have the same meanings in both portions of the Constitution.^ The United States Supreme Court makes this assumption as a working hy- pothesis; ° and, indeed, as both Amendments are parts of 5 Of course, other provisions of tlie Federal Constitution secure to the in- dividual procedural as well as substantive rights against the federal gov- ernment which they do not secure to him against state action: see, e. g., West V. Louisiana (1904) 194 U. S. 258, 24 Sup. Ct. 650, 48 L. ed. 965; Maxwell v. Dow (1900) 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. ed, 597; HurtaJo v. California (1884) 110 U. S. 516, 4 Sup. Ct. Ill, 292, 28 L. ed. 232; Walker v. Sauvinet (1875) 92 U. S. 90, 23 L. ed. 678. This point is to be considered in connection with sees. 86, 87, infra. 6 "The part of the Constitution then before the court was the Fifth Amendment. If any different meaning of the same words, as they are used in the Fourteenth Amendment, can be conceived, none has yet appeared in judicial decision:" Twining v. New Jersey (1908) 211 U. S. 78, 100, 101, 29 Sup. Ct. 14, 20, 53 L. ed. 97. "While we need not affirm that in no in- stance could a distinction be taken, ordinarily if an Act of Congress is valid under the Fifth Amendment it would be hard to say that a state law in like terms was void under the Fourteenth:" Carroll v. Greenwich I. Co. (1905) 199 U. S. 401, 410, 26 Sup. Ct. 66, 67, 50 L. ed. 246. "The purpose of [the Fourteenth] Amendment is to extend to the citizens and residents of the states the same protection against arbitrary state legislation affecting life, liberty and property, as is afforded by the Fifth Amendment against similar legislation by Congress:" Tonawanda v. Lyon (1901) 181 U. S. 389, 391, 21 Sup. Ct. 009, 010, 45 L. ed. 908, quoted approvingly in Hibben v. Smith (1903) 191 U. S. 310, 325, 24 Sup. Ct. 88, 92, 48 L. ed. 195. We "shall proceed, in the present case, on the assumption that the legal import of the phrase 'due process of law' is the same in both Amendments. Cer- tainly, it cannot be supposed that, by the Fourteenth Amendment, it was intended to impose on the states, when exercising their powers of taxation, any more rigid or stricter curb than that imposed on the federal government, in a similar exercise of power, by the Fifth .\mendnient : " French v. Barber A. P. Co. (1901) 181 U. S. 324, 329, 21 Sup. Ct. 625, 627, 45 L. ed. 879. See also references to Davidson v. New Orleans (1877) 96 U. S. 97, 103, 104, 24 L. ed. 616, and Missouri P. Ry. Co. v. Humes (1885) 115 U. S. 512, 520, 6 Sup. Ct. 110, 112, 29 L. ed. 463, on p. 119, infra; Detroit v. Parker (1901) 181 U. S. 399, 401, 21 Sup. Ct. 624, 625, 45 L. ed. 917; dissenting opinion in Tonawanda v. Lyon (1901) 181 U. S. 389, 393, 21 Sup. Ct. 609, 611, 45 L. ed. 908; In re Kemmler (1890) 136 U. S. 436, 448, 10 Sup. Ct. 930, 934, INTRODUCTORY. 117 the same Constitution such a working hypothesis is not unnatural.'^ Possible points of difference are ignored by the court. 55. The variations in the texts of the two clauses are unimportant,^ save, of course, that the clauses relate to different govermnents; and while the contexts of the clauses are unlike ^ the court apparently does not consider that fact important. A period of nearly eighty years sep- 34 L. ed. 519; Hurtado v. California (1884) 110 U. S. 516, 534, 535, 4 Sup. Ct. Ill, 292, 120, 28 L. ed. 232 (in the latter two cases, however, it is pos- sible that a distinction is made; but see discussion of them in note 97 in Chapter 4, infra) ; dissenting opinion in Wight v. Davidson (1901) 181 U. S. 371, 387, 21 Sup. Ct. 61G, 622, 45 L. ed. 900; opinion of court in Pittman V. Byars (1908) 51 Tex. Civ. App. 83, 112 S. W. 102. Compare Wight v. Davidson (1901) 181 U. S. 371, 384, 21 Sup. Ct. 616, 621, 45 L. ed. 900, where it is said, "It by no means necessarily follows that a long and con- sistent construction put upon the Fifth Amendment . . . . is to be deemed overruled by a decision concerning the operation of the Fourteenth Amendment as controlling state legislation;" and French v. Barber A. P. Co. (1901) 181 U. S. 324, 328, 21 Sup. Ct. 625, 626, 45 L. ed. 879, where it is said, "While the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper." And see book review by E. A. Corwin in 6 Am. Pol. Sci. Rev. 271. 7 "The Constitution of the United States, with the several Amendments thereof, must be regarded as one instrument, all of whose provisions are to be deemed of equal validity:" Prout v. Starr (1903) 188 U. S. 537, 543, 23 Sup. Ct. 398, 400, 47 L. ed. 584. "While the [state] constitution as it now stands is to be considered as a whole as if enacted at one time, to ascertain the meaning of particular expressions it may be necessary to give attention to the circumstances under which they became parts of the instrument:" Thompson v. Kidder (1906) 74 N. H. 89, 91, 65 Atl. 392, 393. 8 Neither clause is expressly addressed to or confined to any particular branch of government to which it relates, so that it is difficult to see from the texts that either relates to fewer or more branches of government than the other. So far as the texts are concerned, there are as strong reasons for implying "by aivy organ of government" in one provision as in the other — and no stronger reasons. 9 See sees. 127, 131, infra. 118 DUE PROCESS CLAUSES— POSITION OF COURT. arated the adoptions of the two Amendments, and it has been said that for that reason "it may be that questions may arise in which different constructions and applica- tions of their provisions may be proper"; ^° but the court does not seek to interpret either clause from the stand- point of the time of its adoption.^ ^ Importance of understanding the provision. 56. The importance of a correct understanding of the clauses is unquestionable. More decisions of the United States Supreme Court turn upon the due process require- 10 French v. Barber A. P. Co. (1901) 181 U. S. 324, 328, 21 Sup. Ct. 625, 626, 45 L. ed. 879, quoted at end of note 6, supra. 11 Yet see United States v. Burr (1807) 4 Cranch, 469, 470, 2 L. ed. 684; Schick V. United States (1904) 195 U. S. 65, 69, 24 Sup. Ct. 826, 827, 49 L. ed. 99; Robertson v. Baldwin (1897) 165 U. S. 275, 281, 17 Sup. Ct. 326, 329, 41 L. ed. 715; Latimer v. United States (1912) 223 U. S. 501, 504, 32 Sup. Ct. 242, 56 L. ed. 526; United States v. Baruch (1912) 223 U. S. 191, 199, 32 Sup. Ct. 306, 309, 56 L. ed. 399; Standard Oil Co. v. United States (1911) 221 U. S. 1, 59, 31 Sup. Ct. 502, 515, 55 L. ed. 619, on the duty of de- termining whether terms had established meanings when used and, if so, of applying them in accordance with those meanings. Consider also Sand F. Corp. V. Cowardin (1909) 213 U. S. 360, 364, 29 Sup. Ct. 509, 510, 53 L. ed. 833; Maxwell v. Dow (1900) 176 U. S. 581, 602, 20 Sup. Ct. 448, 494, 456, 44 L. ed. 597; Standard Oil Co. v. United States (1911) 221 U. S. 1, 50, 31 Sup. Ct. 502, 512, 55 L. ed. 619; Pittman v. Byars (1908) 51 Tex. Civ. App. 83, 112 S. W. 102; discussion in section 83, infra. — In the interval be- tween the adoptions of the two Amendments the United States Supreme Court interpreted the provision in the Fifth Amendment and many state courts interpreted similar provisions in state constitutions. The courts so often relied upon unconvincing reasoning that permanent interpretation and uniformity among the several jurisdictions alike seem extremely improb- able, although an examination of the state decisions would require too much time to warrant its being made for the purposes of this book. (See, how- ever, Corwin, Tlie Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 460.) Yet if it were shown that the various decisions were in general accord at the time of the adoption of the Fourteenth Amend- ment those decisions should help to fix the meaning of the Fourteenth Amendment even though they were erroneous as to the provisions they in- terpreted and were now all overruled. Of course, we must remember that a great deal of weight is due to the interpretations, and especially the un- INTRODUCTORY. 119 ment than upon any other provision of the Constitution. It is true that thirty-six years ago the court, after com- paring the infrequency with which the due process clause of the Fifth Amendment had been invoked in the first ninety years of the country's history with the frequency with which the similar clause of the Fourteenth Amend- ment was being invoked, declared that the fact that its docket was crowded with cases concerning the due pro- cess provision furnished "abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment";^- and that eight years later the language quoted above was repeated ''with an expression of increased surprise at the continued misconception of the purpose of the provi- challenged interpretations, which other departments of the state and fed- eral governments showed by their actions that they placed upon the pro- visions: see Patterson, The United States and the States Under the Con- stitution, 2d ed., p. 234, and also United States v. Baruch (1912) 223 U. S. 191, 200, 32 Sup. Ct. 306, 309, 56 L. ed. 399. 12 "It is not a little remarkable, that while this provision has been in the Constitution of the United States, as a restraint upon the authority of the federal government, for nearly a century, and while, during all that time, the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theatre of public discussion. But while it has been a part of the Constitution, as a restraint upon the power of the states, only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, or prop- erty without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of this provision as found in the Fourteenth Amendment. In fact, it would seem, from the char- acter of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of the justice of the decision against him, and of the merits of the legislation on which such a decision may be founded:" Dav- idson V. New Orleans (1877) 96 U. S. 97, 103, 104, 24 L. ed. 616. See also eases in note 51 in Chapter 4, infra. 120 DUE PROCESS CLAUSES— POSITION OF COURT. sion. ' ' ^^ But, nevertheless, those clauses are to-day in- voked more often than ever before,^ ^ and, whether or not this is due to a continued misunderstanding of the pro- vision, the fact that the clauses are so often appealed to unquestionably shows the importance of understanding them correctly. THE "PERSONS" PROTECTED. 57. The tei'm '^ persons" in the due process provision includes natural persons as a matter of course. The court has also decided repeatedly that the term includes within its scope corporations,^^ both domestic and foreign,^ "^ al- 13 Missouri P. Ry Co. v. Humes (1885) 115 U. S. 512, 520, 6 Sup. Ct. 110, 112, 29 L. ed. 463. See also authorities in note 51 in Chapter 4, infra. "At the beginning of the October Term of 1877, the Supreme Court had ren- dered only nine opinions in cases involving the Fourteenth Amendment. From 1877 to the beginning of the October Term of 1885, twenty-six addi- tional opinions were rendered, making a total of thirty-five for the first six- teen years of the operation of the Amendment. What would the learned Justices have said could they have seen the present-day operation of the Amendment! Within the last thirteen years the Supreme Court has deliv- ered four hundred and nine opinions by way of interpreting section one of the Amendment, this being an average of about thirty-one opinions each year:" Collins, The Fourteenth Amendment and the States, 27. 14 "Within the past forty years the Supreme Court has delivered more than four hundred opinions involving the one question of the states taking property without due process of law. Less than one hundred of these cases arose prior to 1890. More than one-half of all of them deal with the rela- tions of the states to the corporations — the public service companies form- ing the predominating element. This is, therefore, an intensely modern question and one, it seems, which cannot be solved by the courts:" Collins, The Fourteenth Amendment and the States, 116. See also ibid. 125; and notes 13, supra, and 62, infra. 15 Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858; Smj-th v. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Gulf, C. & S. F. Ry. Co. v. Ellis (1897) 165 U. S. 150, 17 Sup. Ct. 255, 41 L. ed. 666; Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 17 Sup. Ct. 198, 41 L. ed. 560, and cases there cited. Compare Collins, The Fourteenth Amendment and the States, 126, 127 ; and note 4 in Chapter 5, infra. — There is a dictum in Northwestern N. L. I. Co. v. Riggs (1906) 203 U. S. 243, 255, 27 Sup. Ct. 126, 129, 51 L. ed. 168, repeated in Western THE "PERSONS" PROTECTED. 121 thoiigh the rights of those corporations may be in some respects less than the rights of natural persons.^ '^ We have considered elsewhere ^^ the question whether it is possible, by charter or otherwise, to bargain away the right to raise constitutional objections to acts of govern- ment. THE ORGANS OF GOVERNMENT RESTRAINED. Fourteenth Amendment restrains states and their organs. 58. The due process clause of the Fourteenth Amend- ment applies to action by the state itself through its con- stitution; ^^ and it applies to action by any organ of state T. Assn. V. Greenberg (1907) 204 U. S. 359, 363, 27 Sup. Ct. 384, 386, 51 L. ed. 620, that "The liberty referred to in that Amendment is the liberty of natural, not artificial, persons.*' See also Selover, Bates & Co. v. Walsh (1912) 226 U. S. 112, 126, 33 Sup. Ct. 69, 72, 57 L. ed. 146. This is true if the term "liberty" is given the meaning which it had when placed in the due process provision : see p. 244, infra. But if it is given the meaning which the court now gives to it with reference to natural persons, the thought of the court is not aptly expressed: see 22 Harv. L. Rev. 251, 252. The court should have said, rather, that a corporation has fewer rights than a na- tural person: see note 17, infra. And on the question of the "liberty" of corporations, consider also Adair v. United States (1908) 208 U. S. 161, 172, 28 Sup. Ct. 277, 279, 52 L. ed. 436. 16 Western U. T. Co. v. Kansas (1910) 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. v. Kansas (1910) 216 U. S. 56, 30 Sup. Ct. 232, 54 L. ed. 378; Southern Ry. Co. v. Greene (1910) 216 U. S. 400, 416, 417, 30 Sup. Ct. 287, 291, 54 L. ed. 536; see also Carroll v. Greenwich Ins. Co. (1905) 199 U. S. 401, 409, 26 Sup. Ct. 66, 67, 50 L. ed. 246. 17 Hammond P. Co. v. Arkansas (1909) 212 U. S. 322, 29 Sup. Ct. 370, 53 L. ed. 530; Berea College v. Kentucky (1908) 211 U. S. 45, 29 Sup. Ct. 33, 53 L. ed. 81; National Coimcil J. 0. U. A. M. v. State Council (1906) 203 U. S. 151, 27 Sup. Ct. 46, 51 L. ed. 132. See also St. Mary's F.-A. P. Co. v. West Virginia (1906) 203 U. S. 183, 27 Sup. Ct. 132, 51 L. ed. 144. Com- pare cases in notes 15, 16, supra. 18 See sec. 22, supra. 19 Louisville & N. R. Co. v. Central S. Y. Co. (1909) 212 U. S. 132, 29 Sup. Ct. 246, 53 L. ed. 441. On the decision in this case see dissenting opin- ion and also Londoner v. Denver (1908) 210 U. S. 373, 379, 28 Sup. Ct. 708, 122 DUE PROCESS CLAUSES— POSITION OF COURT. government. -° This is true whether the action is by the legislature,^^ or the judiciary,^ ^ or the officers of the cen- 711, 52 L. ed. 1103, of which the two reports last cited are more complete than that first cited; Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 279, 29 Sup. Ct. 50, 54, 53 L. ed. 176; Lindsley v. Natural C. G. Co. (1911) 220 U. S. 61, 73, 31 Sup. Ct. 337, 338, 55 L. ed. 369; dissenting opinion in Raymond v. Chicago U. T. Co. (1907) 207 U. S. 20, 41, 28 Sup. Ct. 7, 14, 52 L. ed. 78; cases in note 44 et seq., infra. 20 On the significance of the word '"state" in the Fourteenth Amendment see sec. 74, infra, and note 44, infra. 21 Missouri P. Ry. Co. v. Tucker (1913) 230 U. S. 340, 33 Sup. Ct. 961, 57 L. ed. 1507; Missouri P. Ry. Co. v. Nebraska (1910) 217 U. S. 196, 30 Sup. Ct. 461, 54 L. ed. 727; Western U. T. Co. v. Kansas (1910) 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. v. Kansas (1910) 216 U. S. 56, 30 Sup. Ct. 232, 54 L. ed. 378; Ludwig v. Western U. T. Co. (1910) 216 U. S. 146, 30 Sup. Ct. 280, 54 L. ed. 423; Otis Co. v. Ludlow M. Co. (1906) 201 U. S. 140, 26 Sup. Ct. 353, 50 L. ed. 696; Union R. T. Co. v. Kentucky (1905) 199 U. S. 194, 26 Sup. Ct. 36, 50 L. ed. 150; Delaware, L. & W. R. Co. V. Pennsylvania (1905) 198 U. S. 341, 25 Sup. Ct. 669, 49 L. ed. 1077; Lochner v. New York (1905) 198 U. S. 45, 25 Sup. Ct. 539, 49 L. ed. 93; Bradley v. Lightcap (1904) 195 U. S. 1, 24 Sup. Ct. 748, 49 L. ed. 65; Lou- isville & J. F. Co. V. Kentucky (1903) 188 U. S. 385, 23 Sup. Ct. 463, 47 L. ed. 513; Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858; Smyth v. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Allgeyer v. Louisiana (1897) 165 U. S. 578, 17 Sup. Ct. 427, 41 L. ed. 832; Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 17 Sup. Ct. 198, 41 L. ed. 560. See also Choate v. Trapp (1912) 224 U. S. 665, 32 Sup. Ct. 565, 56 L. ed. 941; Prentis v. Atlantic C. L. Co. (1908) 211 U. S. 210, 29 Sup. Ct. 67, 53 L. ed. 150; Chesapeake & P. T. Co. V. Manning (1902) 186 U. S. 238, 22 Sup. Ct. 881, 46 L. ed. 1144; Central of Ga. Ry. Co. v. Wright (1907) 207 U. S. 127, 28 Sup. Ct. 47, 52 L. ed. 134. Compare Walker v. Sauvinet (1875) 92 U. S. 90, 23 L. ed. 678. 22Selliger v. Kentucky (1909) 213 U. S. 200, 29 Sup. Ct. 449, 53 L. ed. 761; Buck V. Beach (1907) 206 U. S. 392, 27 Sup. Ct. 712, 51 L. ed. 1106; Wetmore v. Karrick (1907) 205 U. S. 141, 27 Sup. Ct. 434, 51 L. ed. 745; Old W. M. L. Assn. v. McDonough (1907) 204 U. S. 8, 23, 27 Sup. Ct. 236, 241, 51 L. ed. 345; Chicago, B. & Q. Ry. Co. v. People (1906) 200 U. S. 561, 594, 26 Sup. Ct. 341, 350, 50 L. cd. 59G: Scott v. McNeal (1894) 1,54 U. S. 34, 14 Sup. Ct. 1108, 38 L. ed. 896 (explained in Cunnius v. Reading School Dist. (1905) 198 U. S. 458, 475, 25 Sup. Ct. 721, 726, 49 L. ed. 1125) ; Fay- erweather v. Ritch (1904) 195 U. S. 276, 25 Sup. Ct. 58, 49 L. ed. 193; Na- tional Ex. Bank v. Wiley (1904) 195 U. S. 257, 270, 25 Sup. Ct. 70, 75, 49 L. ed. 184; Green B. & M. C. Co. v. Patten P. Co. (1898) 172 U. S. 58, 82, 19 Sup. Ct. 97, 106, 43 L. ed. 364 (1899) 173 U. S. 179, 19 Sup. Ct. 316, 43 L. ed. 658; Missouri P. Ry. Co. v. Nebraska (1896) 164 U. S. 403, 17 ORGANS OF GOVERNMENT RESTRAINED. 123 tral administration,^" although it seems that acts by municipalities,^^ or subordinate officers,^^ or private indi- fcup. Ct. 130, 41 L. ed. 489. See also Prentis v. Atlantic C. L. Co. (1908) 211 U. S. 210, 29 Sup. Ct. 67, 53 L. ed. 150; Carter v. Texas (1900) 177 U. S. 442, 20 Sup. Ct. 687, 44 L. ed. 839; Backus v. Fort S. U. D. Co. (1898) 169 U. S. 557, 18 Sup. Ct. 445, 42 L. ed. 853; Chicago, B. & Q. R. Co. v. Chi- cago (1897) 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979; Neal v. Delaware (1880) 103 U. S. 370, 26 L. ed. 567; Virginia v. Rives (1879) 100 U. S. 313, 25 L. ed. 667; Central of Ga. Ry. Co. v. Wright (1907) 207 U. S. 127, 28 Sup. Ct. 47, 52 L. ed. 134; Iron C. Co. v. Negaunee I. Co. (1905) 197 U. S. 463, 25 Sup. Ct. 474, 49 L. ed. 836; Madisonville T. Co. v. St. Bernard M. Co. (1905) 196 U. S. 239, 25 Sup. Ct. 251, 49 L. ed. 462. Compare Mar- chant V. Pennsylvania R. Co. (1894) 153 U. S. 380, 385, 386, 14 Sup. Ct. 894, 896, 38 L. ed. 751; Fallbrook Irr. Dist, v. Bradley (1896) 164 U. S. 112, 157. 168, 170, 17 Sup. Ct. 56, 62, 66, 67, 41 L. ed. 369; Morley v. Lake S. & M. S. Ry. Co. (1892) 146 U. S. 162, 171, 13 Sup. Ct. 54, 58, 36 L. ed. 925; and cases in note 38, infra. 23 State of Washington ex rel. Oregon R. & N. Co. v. Fairchild (1912) 224 U. S. 510, 32 Sup. Ct. 535, 56 L. ed. 863; Railroad Comn. of Louisiana v. Cumberland T. & T. Co. (1909) 212 U. S. 414, 29 Sup. Ct. 357, 53 L. ed. 577; Chicago, M. & St. P. Ry. Co. v. Tompkins (1900) 176 U. S. 167, 20 Slip. Ct. 336, 44 L. ed. 417; Reagan v. Farmers' L. & T. Co. ( 1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014; Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. ed. 970; Minneapolis E. Ry. Co. V. Minnesota (1890) 134 U. S. 467, 10 Sup. Ct. 473, 702, 33 L. ed. 985; Prout v. Starr (1903) 188 U. S. 537, 23 Sup. Ct. 398, 47 L. ed. 584. See also Home T. & T. Co. v. Los Angeles (1913) 227 U. S. 278, 33 Sup. Ct. 312, 57 L. ed. 510; Choate v. Trapp (1912) 224 U. S. 665, 32 Sup. Ct. 565, 56 L. ed. 941; Raymond v. Chicago U. T. Co. (1907) 207 U. S. 20, 28 Sup. Ct. 7, 52 L. ed. 78; Londoner v. Denver (1908) 210 U. S. 373, 28 Sup. Ct. 708, 52 L. ed. 1103; Fargo v. Hart (1904) 193 U. S. 490, 24 Sup. Ct. 498, 48 L. ed. 761; Missouri P. Ry. Co. v. Nebraska (1896) 164 U. S. 403, 17 Sup. Ct. 130, 41 L. ed. 489; Douglas P. J. C. v. Grainger (1906) 146 Fed. 414; Spring V. W. v. San Francisco (1903) 124 Fed. 574. Compare Arbuckle v. Blackburn (1903) 191 U. S. 405, 24 Sup. Ct. 148, 48 L. ed. 239; Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 170, 17 Sup. Ct. 56, 67, 41 L. ed. 369; Hooe v. United States (1910) 218 U. S. 322, 335, 31 Sup. Ct. 85, 89, 54 L. ed. 1055. 24 In Barney v. New York (1904) 193 U. S. 430, 24 Sup. Ct. 502, 48 L. ed. 737, the Supreme Court sustained the refusal of a lower federal court to enjoin the continuance by a board and a contractor with that board, and by a city through them, of conduct which was forbidden by state statute. In Savannah, T. & I. of H. Ry. v. Savannah (1905) 198 U. S. 392, 25 Sup. Ct. 690, 49 L. ed. 1097, the above case was cited as authority for the dictum that the collection by a municipality of a tax unauthorized by state law 124 DUE PROCESS CLAUSES— POSITION OF COURT. vidualSj^^ unless authorized or until supported by the would not violate the due process clause. The enforcement of that tax had been sustained by the state court. (With this case, however, compare Ray- mond V. Chicago U. T. Co. (1907) 207 U. S. 20, 28 Sup. Ct. 7, 52 L. ed. 78.) In City of Memphis v. Cumberland T. & T. Co. (1910) 218 U. S. 624, 31 Sup. Ct. 115, 54 L. ed. 1185, which arose in a federal court, the Supreme Court decided that an ordinance which was unauthorized by state law would not violate the Fourteenth Amendment. And in City of Dawson v. Co- lumbia A. S. F., S. D., T. & T. Co. (1905) 197 U. S. 178, 25 Sup. Ct. 420, 49 L. ed. 713; Shawnee S. & D. Co. v. Stearns (1911) 220 U. S. 462, 31 Sup. Ct. 452, 55 L. ed. 544, the Supreme Court decided that a breach of contract by a city which was unsupported by statute was not unconstitutional. See also Portland Ry., L. & P. Co. v. Portland (1912) 200 Fed. 890; City of Louisville v. Cumberland T. & T. Co. (1907) 155 Fed. 725. On the other hand, compare the cases cited in that opinion where municipal action was based on legislation. In Dobbins v. Los Angeles (1904) 195 U. S. 223, 25 Sup. Ct. 18, 49 L. ed. 169, the Supreme Court declared unconstitutional an ordinance which had been upheld by the state court and which unwarrant- ably prevented the building of a gas worlcs. In Norwood v. Baker (1898) 172 U. S. 269, 19 Sup. Ct. 187, 43 L. ed. 443, the same court held invalid an ordinance passed in accordance with statute. (Remainder of case prac- tically overruled in French v. Barber A. P. Co. (1901) 181 U. S. 324, 21 Sup. Ct. 625, 45 L. ed. 879.) In North A. C. S. Co. v. Chicago (1908) 211 U. S. 306, 29 Sup. Ct. 101, 53 L. ed. 195, the court decided that an ordi- nance passed in accordance with statute must be regarded as an act of the state: the ordinance, however, was sustained. In Londoner v. Denver (1908) 210 U. S. 373, 28 Sup. Ct. 708, 52 L. ed. 1103, which arose in a state court, an assessment had been made by a city council, acting as a board of equalization, and a property owner had not been afforded any opportunity for a hearing: the Supreme Court held that the assessment by the council was action by the state, and declared that action to be unconstitutional. And in Iron M. R. Co. v. Memphis (1899) 96 Fed. 113, a circuit court of appeals directed a lower court to inquire whether a railroad had so acted as to jus- tify a city in ousting the company from its streets, the legislature having given the city general power over the streets. On the power of local gov- ernmental boards see also Ozark-Bell T. Co. v. City of Springfield (1905) 140 Fed. 666; Spring V. W. v. San Francisco (1903) 124 Fed. 574; Pacific G. I. Co. V. EUcrt (1894) 64 Fed. 421. The decision in Riverside & A. Ry. Co. V. Riverside (1902) 118 Fed. 736, was unsound. 25 See Barney v. New York (1904) 193 U. S. 430, 24 Sup. Ct. 502, 48 L. ed. 737; People v. Van de Carr (1905) 199 U. S. 552, 26 Sup. Ct. 144, 50 L. ed. 305. Compare Pacific G. I. Co. v. Ellert (1894) 64 Fed. 421; Yick Wo V. Hopkins (1886) 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. ed. 220, the latter of which was decided under the equal protection provision. 26 Civil Rights Cases (1883) 109 U. S. 3, 3 Sup. Ct. 18, 27 L. ed. 835; ORGANS OF GOVERNMENT RESTRAINED. 125 state authorities, do not come within the purview of the Constitution;-^ and, a fortiori, acts by municipalities which are in excess of authority from the state do not for that reason violate the clause which we are considering.^^ Where, however, a municipality, acting within the scope of powers conferred by the state, misuses those powers, such actions may violate the constitutional restraint.^^ United States v. Cruikshank (1875) 92 U. S. 542, 554, 23 L. ed. 588. See also United States v. Harris (1883) 106 U. S. 629, 1 Sup. Ct. 601, 27 L. ed. 290; Hodges v. United States (1906) 203 U. S. 1, 14, 27 Sup. Ct. 6, 7, 51 L. ed. 65; James v. Bowman (1903) 190 U, S. 127, 23 Sup. Ct. 678, 47 L. ed. 979. 27 Compare, however, Home T. & T. Co. v. Los Angeles (1913) 227 U. S. 278, 33 Sup. Ct. 312, 57 L. ed. 510, where all that it was necessary for the court to say was that "acts done under the authoritj' of a municipal ordi- nance passed in virtue of power conferred by a state are embraced by the Fourteenth Amendment:" 227 U. S. at 294, 33 Sup. Ct. at 317, 57 L. ed. at 518, and yet the court said, "It may not be doubted that wliere a state ofl&cer under an assertion of power from the state is doing an ac£ which could only be done upon the predicate that there was such power, rlie in- quiry as to the repugnancy of the act to the Fourteenth Amencmieni can- not be avoided by insisting that there is a want of power. That is to say, a state officer cannot on the one hand as a means of doing a wrong forbidden by the Amendment proceed upon the assumption of the possession of state power and at the same time for the purpose of avoiding the application of the Amendment, deny the power and thus accomplish the wrong:" 227 U. S. at 288, 33 Sup. Ct. at 315, 57 L. ed. at 515. But see Hooe v. United States (1910) 218 U. S. 322, 335, 31 Sup. Ct. 85, 89, 54 L. ed. 1055. 28 0wensboro W. Co. v. Owensboro (1906) 200 U. S. 38, 26 Sup. Ct. 249, 50 L. ed. 361. 29 The Amendment provides "for a case where one who is in possession of state power uses that power to the doing of the wrongs which the Amend- ment forbids even although the consummation of the wrong may not be within the powers possessed if the commission of the wrong itself is ren- dered possible or is efficiently aided by the state authority lodged in the wrongdoer. That is to say, the theory of the Amendment is that where an officer or other representative of a state in the exercise of the authority with which he is clothed misuses the power possessed to do a wrong for- bidden by the Amendment, inquiry concerning whether the state has au- thorized the wrong is irrelevant and the federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of his exertion of power. To speak broadly, the difference between the prop- osition insisted upon and the true meaning of the Amendment is 126 DUE PROCESS CLAUSES— POSITION OF COURT. Fifth Amendment restrains organs of federal government. 59. As we have already noted,^^ the Supreme Court proceeds upon the assumption that the due process pro- vision has in general the same meaning in both the Fifth Amendment and the Fourteenth Amendment, save, of course, that the Fifth Amendment relates only to the fed- eral government while the Fourteenth Amendment relates to the governments of the several states. The decisions which have been rendered under the Fourteenth Amend- ment are, therefore, usually pertinent by way of analogy in cases which arise under the Fifth Amendment, al- though it goes without saying that the Fifth Amendment does not prohibit the making of changes in the Federal Constitution.^^ But few cases have arisen under the due process clause of the Fifth Amendment. There are, however, decisions that the clause restrains Congress ^^ and that it restrains the heads of departments.^^ this, that the one assumes that the Amendment virtually contem- plates alone wrongs authorized by a state and gives only power ac- cordingly, while in truth the Amendment contemplates the possibility of state oflScers abusing the powers lawfully conferred upon them by doing wrongs prohibited by the Amendment. In other words, the Amendment, looking to the enforcement of the rights which it guarantees and to the prevention of the wrongs which it prohibits, proceeds not merely upon the assumption that states acting in their governmental capacity in a complete sense may do acts which conflict with its provisions, but, also conceiving, what was more normally to be contemplated, that state powers might be abused by those who possessed them and as a result might be used as the instrument for doing wrongs, provided against all and every such possible contingency:" Home T. & T. Co. v. Los Angeles (1913) 227 U. S. 278, 287, 33 Sup. Ct. 312, 315, 57 L. ed. 510. 30 Sec. 54, supra. 31 Compare note 19, supra, as to the Fourteenth Amendment as a restraint upon state action even though authorized by the state constitution. 32 Adair v. United States (1908) 208 U. S. 161, 28 Sup. Ct. 277, 52 L. ed. 436. See also Choate v. Trapp (1912) 224 U. S. 665, 32 Sup. Ct. 565, 56 L. ed. 941. 3^ Garfield v. Goldsby (1908) 211 U. S. 249, 29 Sup. Ct. 62, 53 L. ed. 168. ORGANS OF GOVERNJIENT RESTRAINED. 127 Organs for establishing limitations upon rates. 60. The fact that limitations upon rates were decreed by a court, which followed judicial procedure, would not necessarily satisfy the due process requirement;^^ nor would the mere fact that they were imposed by legisla- tive ^^ or administrative ^^ action make their enforcement See also United States ex rel. Turner v. Fisher (1911) 222 U. S. 204, 32 Sup. Ct. 37, 56 L. ed. 165; Ochoa v. Hernandez y Morales (1913) 230 U. S. 139, 33 Sup. Ct. 1033, 57 L. ed. 1427. Compare Hooe v. United States (1910) 218 U. S. 322, 31 Sup. Ct. 85, 54 L. ed. 1055; United States ex rel. Knight V. Lane (1913) 228 U. S. 6, 33 Sup. Ct. 407, 57 L. ed. 709. 34 See Backus v. Fort S. U. D. Co. (1898) 169 U. S. 557, 18 Sup. Ct. 445, 42 L. ed. 853; Chicago, B. & Q. R. Co. v. Chicago (1897) 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979, and other cases in note 22, supra. It ia true, however, that in consequence of the Seventh Amendment a federal court, other than that in which the trial took place, cannot consider whether the verdict of the jury in a trial at common law was against the weight of the evidence: see p. 363, infra. 35 Chesapeake & P. T. Co. v. Manning (1902) 186 U. S. 238, 22 Sup. Ct. 881, 46 L. ed. 1144; Chicago & G. T. Ry. Co. v. Wellman (1892) 143 U. S. 339, 12 Sup. Ct. 400, 30 L. ed. 176; Munn v. Illinois (1876) 94 U. S. 113, 24 L. ed. 77; Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 594, 17 Sup. Ct. 198, 204, 41 L. ed. 560; St. Louis & S. F. Ry. Co. v. Gill (1895) 156 U. S. 649, 15 Sup. Ct. 484, 39 L. ed. 567; Budd v. New York (1892) 143 U. S. 517, 12 Sup. Ct. 468, 36 L. ed. 247; Dow v. Beidelman (1888) 125 U. S. 680, 8 Sup. Ct. 1028, 31 L. ed. 841; Chicago, B. & Q. R. Co. V. Iowa (1876) 94 U. S. 155, 24 L. ed. 94. See also Cotting v. Kansas C. S. Y. Co. (1901) 183 U. S. 79, 85, 22 Sup. Ct. 30, 33, 46 L. ed. 92; Chi- cago, M. & St. P. Ry. Co. V. Tompkins (1900) 176 U. S. 167, 20 Sup. Ct. 336, 44 L. ed. 417; Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858; Smyth v. Ames (1898) 171 U. S. 361, 18 Sup. Ct. 488, 43 L. ed. 197, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 397, 14 Sup. Ct. 1047, 1054, 38 L. ed. 1014; Georgia R. & B. Co. v. Smith (1888) 128 U. S. 174, 9 Sup. Ct. 47, 32 L. ed. 377; Ruggles v. Illinois (1883) 108 U. S. 526, 2 Sup. Ct. 832, 27 L. ed. 812; Stone v. Farmers' L. & T. Co. (1886) 116 U. S. 307, 335, 6 Sup. Ct. 334, 1191, 347, 29 L. ed. 636. 36 In Atlantic C. L. R. Co. v. Florida (1906) 203 U. S. 256, 27 Sup. Ct. 108, 51 L. ed. 174; Seaboard A. L. Ry. v. Florida (1906) 203 U. S. 261, 27 Sup. Ct. 109, 51 L. ed. 175; Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151; Georgia R. & B. Co. V. Smith (1888) 128 U. S. 174, 9 Sup. Ct. 47, 32 L. ed. 377; Stone v. Farmers' L. & T. Co. (1886) 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 128 DUE PROCESS CLAUSES— POSITION OF COURT. violative of that requirement. Limitations which muni- cipal authorities have placed upon the charges of quasi- public corporations have been sustained.^''^ It is, therefore, clear that judicial participation in the establishment of rates is not essential.^^ Indeed, the court has declared that "the function of rate-making is purely legislative in its character, and this is true, whether it is exercised directly by the legislature itself or by some subordinate or administrative body, to whom the power of fixing rates in detail has been delegated. The com- pleted act derives its authority from the legislature and must be regarded as an exercise of the legislative power. ' ' ^^ L. ed. 636; Stone v. Illinois C. R. Co. (1886) 116 U. S. 347, 6 Sup. Ct. 348, 388, 1191, 29 L. ed. 650, the court upheld rate regulations by state commis- sions, and in Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014; Reagan v. Mercantile T. Co. (1894) 154 U. S. 413, 418, 14 Sup. Ct. 1060, 1062, 38 L. ed. 1028, while the court decided that the schedules ordered by the commission were too low, it also decided that the commission might establish other schedules. See also Smyth v. Ames (1898) 171 U. S. 361, 18 Sup. Ct. 488, 43 L. ed. 197; Chicago, M. & St. P. Ry. Co. V. Tompkins (1900) 176 U. S. 167, 20 Sup. Ct. 336, 44 L. ed. 417; Interstate Com. Comn. v. Cincinnati, N. O. & T. P. Ry. Co. (1897) 167 U. S. 479, 494, 17 Sup. Ct. 896, 898, 42 L. ed. 243. In none of the above cases did the court discuss the bearing of the due process clauses upon pro- cedure. 37Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 29 Sup. Ct. 148, 53 L. ed. 371; Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 29 Sup. Ct. 50, 53 L. ed. 176; San Diego L. & T. Co. v. National City (1899) 174 U. S. 739, 19 Sup. Ct. 804, 43 L. ed. 1154; see also Burlington, C. R. & N. Ry. Co. V. Dey (1891) 82 Iowa, 312, 48 N. W. 98, 12 L. R. A. 436; People's G. L. & C. Co. v. Chicago (1904) 194 U. S. 1, 24 Sup. Ct. 620, 48 L. ed. 851; Owensboro v. Owensboro W. Co. (1903) 191 U. S. 358, 24 Sup. Ct. 82, 48 L. ed. 217. 38 Compare Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. ed. 970; Ex parte Young (1908) 209 U. S. 123, 147, 148, 166, 28 Sup. Ct. 441, 448, 449, 456, 52 L. ed. 714, 13 L. R. A. N. S. 932, 942, 950; Missouri P. Ry. Co. v. Tucker (1913) 230 U. S. 340, 33 Sup. Ct. 961, 57 L. ed. 1507, referred to in note 16 of Chapter 2, supra. But see note 51, infra. 39 Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 8, 29 Sup. Ct. 148, EXTENT OF THE RESTRAINT. 129 THE EXTENT OF THE RESTRAINT. The proper scope of the provision. 61. In a later chapter ^^ we shall see that there are not merely sufficient but abundant reasons for saying that the court should hold that the due process provision sim- ply requires that governmental commands be enforced only in the manner prescribed by the law of the land, and that the court should admit that the law of the land upon federal matters may be changed by the appropriate federal authorities, subject only to the provisions of the Federal Constitution, and that the law of the land upon state matters may be altered by the appropriate state au- thorities, subject only to the Federal Constitution, to laws and treaties made in accordance with that Constitution, and to the state constitution. In short, the court should hold that the provision applies merely to the manner of enforcing governmental commands, and it should hold that the provision does require that such commands be enforced only in the manner prescribed by the law of the land. 150, 53 L. ed. 371. See also Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 271, 278, 29 Sup. Ct. 50, 51, 54, 53 L. ed. 176; Prentis v. Atlan- tic C. L. Co. (1908) 211 U. S. 210, 29 Sup. Ct. 67, 53 L. ed. 150; Honolulu R. T. & L. Co. V. Hawaii ( 1908) 211 U. S. 282, 29 Sup. Ct. 55, 53 L. ed. 186; note 19 in Chapter 2, supra; Louisville & N. R. Co. v. Kentucky (1902) 183 U. S. 503, 515, 22 Sup. Ct. 95, 100, 46 L. ed. 298; Munn v. Illinois (1876) 94 U. S. 113, 133, 134, 24 L. ed. 77; Chesapeake & P. T. Co. v. Manning (1902) 186 U. S. 238, 244, 245, 22 Sup. Ct. 881, 884, 46 L. ed. 1144; Gilmore, Governmental Regulation of Prices, 17 Green Bag, 627; White, Government Control of Transportation Charges, 37 Am. L. Reg. N. S. 721, 729; Freund, Police Power, p. 382; Stimson, Federal and State Constitutions, book II, chap. 2; Code of Hammurabi, sees. 271, 272, 276, 277; and Spring V. W. V. San Francisco (1903) 124 Fed. 574; Western U. T. Co. v. Myatt (1899) 98 Fed. 335; Capital C. G. Co. v. Des Moines (1896) 72 Fed. 818, 822. 40 See Chapter 4, where these questions are discussed at length. 130 DUE PROCESS CLAUSES— POSITION OF COURT. The position of the court. 62. The court, however, does not take either of these positions. It takes a position which does not rest upon either history, sound logic or a literal interpretation of the terms of the provision.^ ^ The court says that the clauses relate not only to procedure but also to substan- tive law.^^ It does not regard them as requiring that governmental actions comply with the law of the land. And it practically regards the provision as authorizing the court to impose upon governmental actions such tests of fitness as the court itself may choose to impose. A suitable procedure. 63. The court has taken several inconsistent positions with regard to the procedural restraint which is imposed by the due process provision.^^ The position, however, 41 See Chapter 4, infra, where these questions are discussed at length. ^- See sec. 66, infra. 43 In Murray's Lessee v. Hoboken L. & I. Co. (1855) 18 How. 272, 276, 15 L. ed. 372, it is said, "It is manifest that it was not left to the legisla- tive power to enact any process which might be devised." On the other hand, in Walker v. Sauvinet (1875) 92 U. S. 90, 93, 23 L. ed. 678, it is said, "This requirement of the Constitution is met if the trial is had ac- cording to the settled course of legal proceedings. Due process of law is process due according to the law of the land. This process in the states is regulated by the law of the state." See also Missouri v. Lewis (1879) 101 U. S. 22, 31, 25 L. ed. 989; Hurtado v. California (1884) 110 U. S. 510, 535, 4 Sup. Ct. Ill, 292, 120, 28 L. ed. 232; In re Kemmler (1890) 136 U. S. 436, 448, 10 Sup. Ct. 930, 934, 34 L. ed. 519. In Arrowsmith v. Harmoning (1886) 118 U. S. 194, 6 Sup. Ct. 1023, 30 L. ed. 243, it is de- clared to be sufficient if the legislature prescribed a suitable procedure although the state court made a material departure from that procedure. See also Kenuard v. Louisiana (1875) 92 U. S. 480, 481, 23 L. ed. 478; Turpin v. Lemon (1902) 187 U. S. 51, 57, 23 Sup. Ct. 20, 23, 47 L. ed. 70. It is not clear that in Baltimore T. Co. v. Baltimore B. R. Co. (1894) 151 U. S. 137, 14 Sup. Ct. 294, 38 L. ed. 102, the Supreme Court took a posi- tion similar to that in Arrowsmith v. Harmoning, although the official re- norter thought that it did. On the other hand, in Home T. & T. Co. v. Los EXTENT OF THE RESTRAINT. 131 which is best supported by the trend of decisions is that which was taken by the court when it said that in cases arising under the Fourteenth Amendment "The only ques- tion for us is whether a state could authorize the course of proceedings adopted, if that course were prescribed by its constitution in express terms. " ^' In cases coming from Angeles (1908) 211 U. S. 265, 279, 29 Sup. Ct. 50, 54, 53 L. ed. 176; Paul- sen V. Portland (1893) 149 U. S. 30, 38, 13 Sup. Ct. 750, 752, 753, 37 L. ed. 637, it is held that if notice and hearing are given the fact that they are not required by statute is immaterial. With the cases last cited, con- trast the decision in Louisville & N. R. Co. v. Central S. Y, Co. (1909) 212 U. S. 132, 144, 29 Sup. Ct. 246, 248, 53 L. ed. 441, which did not deal with procedure, and expressions in opinions there cited, some of which did deal with procedure. It has been declared that when a state court is acting within its jurisdiction under a valid statute the Supreme Court will not consider whether the state court has followed the procedure prescribed by statute: see note 46, infra. In some cases, as in Arrowsmith v. Harmoning, the view is that the Amendment binds only the legislature; in other cases, as in Rawlins v. Georgia (1906) 201 U. S. 638, 639, 26 Sup. Ct. 560, 50 L. ed. 899, "If the state constitution and laws, as construed by the state court, are consistent with the Fourteenth Amendment, we can go no further. The only question for us is whether a state could authorize the course of proceedings adopted, if that course were prescribed by its con- stitution in express terms." In Lowe v. Kansas (1896) 163 U. S. 81, 85, 16 Sup. Ct. 1031, 1033, 41 L. ed. 78, where a procedure authorized by state statute is sustained, the court says, "Whether the mode of proceeding pre- scribed by this statute, and followed in this case, was due process of law, depends upon the question whether it was in substantial accord with the law and usage in England before the Declaration of Independence, and in this country since it became a nation, in similar cases," citing Murray's Lessee v. Hoboken L. & I. Co., supra, and Dent v. West Virginia (1889) 129 U. S. 114, 9 Sup. Ct. 231, 32 L. ed. 623. The latter case does not support this proposition. The former case refers to the Fifth Amend- ment, and, of course, the law and usage at the time of the adoption of the Fourteenth Amendment were not necessarily the same as the law and usage at the time of the adoption of the Fifth Amendment. On the subject of this note in general and more especially the language in Lowe v. Kansas, supra, see also Twining v. New Jersey (1908) 211 U. S. 78, 28 Sup. Ct. 14, 53 L. ed. 97, referred to on p. 169, infra. Compare the statement in Montana Co. v. St. Louis M. & M. Co. (1894) 152 U. S. 160, 168, 14 Sup. Ct. 506, 508, 38 L. ed. 398, that "the question whether a certain proceed- ing is due process of law is not determined by the matter of age." 44 Rawlins v. Georgia (1906) 201 U. S. 638, 640, 26 Sup. Ct. 560, 50 L. ed. 899. See also Lindsley v. Natural C. G. Co. (1911) 220 U. S. 61, 73, 132 DUE PROCESS CLAUSES— POSITION OF COURT. state courts the court does not inquire whether the action of an organ of state government conforms to the proced- ural requirements of the state constitution ^^ or to other valid procedural restraints upon the organs of govern- ment; ^^ and in cases arising in federal courts those courts 31 Sup. Ct. 337, 338, 55 L. ed. 369; Patterson v. Colorado (1907) 205 U. S. 454, 460, 27 Sup. Ct. 556, 557, 51 L. ed. 879; Ballard v. Hunter (1907) 204 U. S. 241, 260, 27 Sup. Ct. 261, 268, 51 L. ed. 461; Owensboro W. Co. V. Owensboro (1906) 200 U. S. 38, 47, 26 Sup. Ct. 249, 252, 50 L. ed. 361; Hammond P. Co. v. Arkansas (1909) 212 U. S. 322, 349, 350, 29 Sup. Ct. 370, 379, 53 L. ed. 530; St. Louis, I. M. & S. Ry. Co. v. Taylor (1908) 210 U. S. 281, 285, 28 Sup. Ct. 616, 617, 52 L. ed. 1061; People ex rel. New Y. C. & H. R. R. Co. V. Miller (1906) 202 U. S. 584, 595, 26 Sup. Ct. 714, 716, 50 L. ed. 1155; Soper v. Lawrence Bros. Co. (1906) 201 U. S. 359, 370, 26 Sup. Ct. 473, 475, 50 L. ed. 788; Portland Ry., L. & P. Co. v. Rail- road Comn. of Oregon (1913) 229 U. S. 397, 409, 410, 33 Sup. Ct. 820, 826, 57 L. ed. 1248; Selover, Bates & Co. v. Walsh (1912) 226 U. S. 112, 33 Sup. Ct. 69, 57 L. ed. 146. 45 Ensign v. Pennsylvania (1913) 227 U. S. 592, 33 Sup. Ct. 321, 57 L. ed. 658; Ross v. Oregon (1913) 227 U. S. 150, 33 Sup. Ct. 220, 57 L. ed. 458; West v. Louisiana (1904) 194 U. S. 258, 24 Sup. Ct. 650, 48 L. ed. 965; Brown v. New Jersey (1899) 175 U. S. 172, 20 Sup. Ct. 77, 44 L. ed. 119; Hallinger v. Davis (1892) 146 U. S. 314, 319, 13 Sup. Ct. 105, 107, 36 L. ed. 986; Smith v. Jennings (1907) 206 U. S. 276, 278, 27 Sup. Ct. 610, 611, 51 L. ed. 1061; and see Southern P. Co. v. Campbell (1913) 230 U. S. 537, 33 Sup. Ct. 1027, 57 L. ed, 1610; Graham v. West Virginia (1912) 224 U. S. 616, 32 Sup. Ct. 583, 56 L. ed. 917; Walker v. Sauvinet (1875) 92 U. S. 90, 23 L. ed. 678; Stickney v. Kel^ey (1908) 209 U. S. 419, 420, 28 Sup. Ct. 508, 509, 52 L. ed. 863; Patterson v. Colorado (1907) 205 U. S. 454, 27 Sup. Ct. 556, 51 L. ed. 879; Burt v. Smith (1906) 203 U. S. 129, 135, 27 Sup. Ct. 37, 39, 51 L. ed. 121; Forsyth v. Hammond (1897) 166 U. S. 506, 518, 17 Sup. Ct. 665, 670, 41 L. ed. 1095; Long L W. S. Co. V. Brooklyn (1897) 166 U. S. 685, 17 Sup. Ct. 718, 41 L. ed. 1165; Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 154, 155, 17 Sup. Ct. 56, 61, 62, 41 L. ed. 369; Missouri P. Ry. Co. v. Kansas (1910) 216 U. S. 262, 272, 30 Sup. Ct. 330, 333, 54 L. ed. 472; Twining v. New Jersey (1908) 211 U. S. 78, 91, 29 Sup. Ct. 14, 16, 53 L. ed. 97; Hunter v. Pittsburgh (1907) 207 U. S. 161, 170, 176, 28 Sup. Ct. 40, 44, 45, 52 L. ed. 151; Wilson v. North Carolina (1898) 169 U. S. 586, 593, 594, 18 Sup. Ct. 435, 438, 42 L. ed. 865; and note 47, infra. Compare the peculiar de- cision in Louisville & N. R. Co. v. Central S. Y. Co. (1909) 212 U. S. 132, 29 Sup. Ct. 246, 53 L. ed. 441, from which three justices dissented. 46 Watson v. Maryland (1910) 218 U. S. 173, 175, 30 Sup. Ct. 644, 645, EXTENT OF THE RESTRAINT. 133 follow the interpretations which have been given to the state constitutions and the state statutes by the state courts.^''^ 54 L. ed. 987; Rusch v. John Duncan L. & M. Co. (1909) 211 U. S. 526, 29 Sup. Ct. 172, 53 L. ed. 312; Castillo v. McConnico (1898) 168 U. S. 674, 683, 684, IS Sup. Ct. 229, 233, 42 L. ed. 622; Moore v. Missouri (1895) 159 U. S. 673, 16 Sup. Ct. 179, 40 L. ed. 301; Brinknieier v. Missouri P. Ry. Co. (1912) 224 U. S. 268, 32 Sup. Ct. 412, 56 L. ed. 758; Ballard v. Hunter (1907) 204 U. S. 241, 259, 260, 27 Sup. Ct. 261, 268, 51 L. ed. 461; French V. Taylor (1905) 199 U. S. 274, 277, 26 Sup. Ct. 76, 77, 50 L. ed. 189 Patterson v. Colorado (1907) 205 U. S. 454, 27 Sup. Ct. 556, 51 L. ed. 879 Rawlins v. Georgia (1906) 201 U. S. 638, 26 Sup. Ct. 560, 50 L. ed. 899 Long I. W. S. Co. V. Brooklyn (1897) 166 U. S. 685, 688, 17 Sup. Ct. 718, 719, 41 L. ed. 1165; Iowa C. Ry. Co. v. Iowa (1896) 160 U. S. 389, 394, 16 Sup. Ct. 344, 345, 40 L. ed. 467. See also Londoner v. Denver (1908) 210 U. S. 373, 379, 28 Sup. Ct. 708, 711, 52 L. ed. 1103 (the two reports last cited being more complete than that first cited) ; Barrington v. Missouri (1907) 205 U. S. 483, 27 Sup. Ct. 582, 51 L. ed. 890; National C. O. Co. V. Texas (1905) 197 U. S. 115, 130, 131, 25 Sup. Ct. 379, 382, 49 L. ed. 689; Forsyth v. Hammond (1897) 166 U. S. 506, 518, 519, 17 Sup. Ct. 665, 670, 41 L. ed. 1095; Olsen v. Smith (1904) 195 U. S. 332, 342, 25 Sup. Ct. 52, 54, 49 L. ed. 224; W. W. Cargill Co. v. Minnesota (1901) 180 U. S. 452, 466, 21 Sup. Ct. 423, 428, 45 L. ed. 619; Maiorano v. Baltimore & O. R. Co. (1909) 213 U. S. 268, 29 Sup. Ct. 424, 53 L. ed. 792; Boston Cham- ber of Com. V. Boston (1910) 217 U. S. 189, 194, 30 Sup. Ct. 459, 460, 54 L. ed. 725; Grenada L. Co. v. Mississippi (1910) 217 U. S. 433, 440, 30 Sup. Ct. 535, 538, 54 L. ed. 826; Standard Oil Co. v. Tennessee (1910) 217 U. S. 413, 422, 30 Sup. Ct. 543, 544, 54 L. ed. 817; Consolidated R. Co. v. Vermont (1908) 207 U. S. 541, 551, 28 Sup. Ct. 178, 180, 52 L. ed. 327; Gibson v. Mississippi (1896) 162 U. S. 565, 591, 16 Sup. Ct. 904, 910, 40 L. ed. 1075; Turpin v. Lemon (1902) 187 U. S. 51, 57, 23 Sup. Ct. 20, 23, 47 L. ed. 70; Hooker v. Los Angeles (1903) 188 U. S. 314, 319, 23 Sup. Ct. 395, 397, 47 L. ed. 487; Marchant v. Pennsylvania R. Co. (1894) 153 U. S. 380, 386, 14 Sup. Ct. 894, 896, 38 L. ed. 751; Hagar v. Reclamation Dist. (1884) 111 U. S. 701, 713, 4 Sup. Ct. 663, 670, 28 L. ed. 569. Compare 111 U. S. 708, 4 Sup. Ct. 667, 28 L. ed. 572; Cross v. North Carolina (1889) 132 U. S. 131, 140, 10 Sup. Ct. 47, 50, 33 L. ed. 287; Marx v. Hanthorn (1893) 148 U. S. 172, 180, 13 Sup. Ct. 508, 510, 37 L. ed. 410 (the last of which did not arise under the due process requirement ) . On this note see also cases in note 77, infra. 47 Peters v. Broward (1912) 222 U. S. 483, 492, sub nom. Peters v. Gil- christ, 32 Sup. Ct. 122, 124, 56 L. ed. 278 ; Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 154, 155, 17 Sup. Ct. 56, 61, 62, 41 L. ed. 369; Michigan C. R. Co. v. Powers (1906) 201 U. S. 245, 291, 26 Sup. Ct. 459, 461, 50 L. ed. 744; Palmer v. Texas (1909) 212 U. S. 118. 131. 20 Sup. Ct. 134 DUE PROCESS CLAUSES— POSITION OF COURT. Upon the same principle, the court would not regard the due process clause of the Fifth Amendment as one source of its authority to inquire whether the action of 230, 234, 53 L. ed. 435; and see authorities cited in Patterson, The United States and the States Under the Constitution, 2d ed., p. 282. — It may also be added that in a case coming from a state court the Federal Supreme Court would not inquire into the correctness of a decision of the state court that the action of an organ of state government conformed to re- quirements of the state constitution which were other than procedural: Old C. T. Co. V. Omaha (1913) 230 U. S. 100, 116, 33 Sup. Ct. 967, 971, 57 L. ed. 1410; City of Chicago v. Sturges (1911) 222 U. S. 313, 321, 32 Sup. Ct. 92, 56 L. ed. 215; Southwestern Oil Co. v. Texas (1910) 217 U. S. 114, 118, 119, 30 Sup. Ct. 490, 497, 54 L. ed. 688; Berea College v. Kentucky (1908) 211 U. S. 45, 29 Sup. Ct. 33, 53 L. ed. 81; Hairston v. Danville & W. Ry. Co. (1908) 208 U. S. 598, 605, 28 Sup. Ct. 331, 334, 52 L. ed. 637; Muller V. Oregon (1908) 208 U. S. 412, 417, 28 Sup. Ct. 324, 325, 52 L. ed. 551; Seaboard A. L. Ry. v. Seegers (1907) 207 U. S. 73, 76, 28 Sup. Ct. 28, 29, 52 L. ed. 108; Chanler v. Kelsey (1907) 205 U. S. 466, 27 Sup. Ct. 550, 51 L. ed. 882; Western T. Assn. v. Greenberg (1907) 204 U. S. 359, 27 Sup. Ct. 384, 51 L. ed. 520; St. Mary's F.-A. P. Co. v. West Virginia (1906) 203 U. S. 183, 192, 27 Sup. Ct. 132, 135, 51 L. ed. 144; Jack v. Kansas (1905) 199 U. S. 372, 26 Sup. Ct. 73, 50 L. ed. 234; Orr v. Oilman (1902) 183 U. S. 278, 283, 22 Sup. Ct. 213, 217, 46 L. ed. 213; Backus v. Fort S. U. D. Co. (1898) 169 U. S. 557, 566, 568, 18 Sup. Ct. 445, 449, 42 L. ed. 853; Merchants' & M. Bank v. Pennsylvania (1897) 167 U. S. 461, 17 Sup. Ct. 829, 42 L. ed. 230; Adams Ex. Co. v. Ohio State Auditor (1897) 165 U. S. 194, 219, 17 Sup. Ct. 305, 308, 41 L. ed. 683; Slaughter House Cases (1873) 16 Wall. 36, 66, 21 L. ed. 394. See also Bradley v. Richmond (1913) 227 U. S. 477, 33 Sup. Ct. 318, 57 L. ed. 603; Preston v. Chicago (1913) 226 U. S. 447, 450, 33 Sup. Ct. 177, 178, 57 L. ed. 293; Moffitt v. Kelly (1910) 218 U. S. 400, 405, 31 Sup. Ct. 79, 80, 81, 54 L. ed. 1086; Welch v. Swasey (1909) 214 U. S. 91, 104, 29 Sup. Ct. 567, 570, 53 L. ed. 923; Mobile, J. & K. C. R. Co. v. Mississippi (1908) 210 U. S. 187, 202, 28 Sup. Ct. 650, 655, 52 L. ed. 1016; Smithsonian Inst. v. St. John (1909) 214 U. S. 19, 29 Sup. Ct. 601, 53 L. ed. 892; Maiorano v. Baltimore & 0. R. Co. (1909) 213 U. S. 268, 272, 29 Sup. Ct. 424, 425, 53 L. ed. 792; Boston Chamber of Commerce v. Boston (1910) 217 U. S. 189, 194, 30 Sup. Ct. 459, 460, 54 L. ed. 725; and note 77, infra. Compare the peculiar decision in Louisville & N. R. Co. V. Central S. Y. Co. (1909) 212 U. S. 132, 29 Sup. Ct. 246, 53 L. ed. 441, from which three justices dissented. — On the question whether the state court may by any alteration by construction of the state consti- tution destroy any substantial rights which have accrued under a valid contract: see sec. 190, infra. Of course, until a state court decides whether a law is or is not in accordance with the state constitution, a federal court may pass upon the question in cases in which there is some other basis for EXTENT OF THE RESTEAINT. 135 an organ of the federal government complied with the procedural requirements of the Federal Constitution or a federal statute. As to both Amendments we may say that the general position of the court is expressed in the statement that ''consistently with the requirement of due process, no change in ancient procedure can be made which disre- gards those fundamental principles, to be ascertained from time to time by judicial action, which have rela- tion to process of law and protect the citizen in his pri- vate right, and guard him against the arbitrary action of the government. ' ' ^^ The propriety of this position will be considered in a later chapter.^^ Procedure in establishing limitations upon rates. 64. The Amendments obviously do not prescribe any course of legislative procedure,^" and it is not clear that the court to take jurisdiction: see Fallbrook Irr. Dist v. Bradley (1896) 164 U. S. 112, 155, 17 Sup. Ct. 56, 62, 41 L. ed. 369; Michigan C. R. Co. v. Powers (1906) 201 U. S. 245, 291, 26 Sup. Ct. 459, 461, 50 L. ed. 744. 48 Twining v. New Jersey (1908) 211 U. S. 78, 101, 29 Sup. Ct. 14, 20, 53 L. ed. 97. See also Hammond P. Co. v. Arkansas (1909) 212 U. S. 322, 349, 350, 29 Sup. Ct. 370, 379, 53 L. ed. 530. 49 Chapter 4, infra. 50 In Chesapeake & P. T. Cc. v. Manning (1902) 186 U. S. 238, 245, 22 Sup. Ct. 881, 884, 46 L. ed. 1144, the court said, "It is well-settled that the courts always presume that the legislature acts advisedly and with full knowledge of the situation. Such knowledge can be acquired in other ways than by the formal investigation of a committee, and courts cannot inquire how the legislature obtained its knowledge. They must accept its action as that of a body having full power to act, and only acting when it has acquired sufficient information to justify its action." The court also speaks of the conclusiveness of the authentication of the due passage of the act. See also St. Louis & S. F. R. Co. v. Hadley (1909) 168 Fed. 317, 353, 354. The position taken by the Supreme Court of the United States in the pas- sage quoted seems far more reasonable than that taken in Pennsylvania R. Co. v. Philadelphia County (1908) 220 Pa. 100, 115, 68 Atl. 676, 679, 15 L. R. A. N. S. 108, 117; Cumberland T. & T. Co. v. Railroad Comn. of 136 DUE PROCESS CLAUSES— POSITION OF COURT. they prescribe any course of procedure which must be fol- lowed by administrative bodies when establishing limita- tions upon rates.^^ Procedure in enforcing limitations upon rates. 65. The determination of the question whether or not the law has been complied with is, however, entrusted to La. (1907) L56 Fed. 823; Freund, Constitutional Limitations and Labor Legislation, 4 111. L. Rev. 609, 622. 51 In Mercantile T. Co. v. Texas & P. Ry. Co. (1892) 51 Fed. 529, 541, the circuit court criticized the procedure of the Texas commission, which promulgated schedules after a public hearing in which there was a general discussion of rates but apparently no systematic treatment of the several items in the schedules afterwards ordered; but, on appeal, Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014; Reagan v. Mercantile T. Co. (1894) 154 U. S. 413, 418, 14 Sup. Ct. 1060, 1062, 38 L. ed. 1028, the court of last resort decreed that while the schedules under review were unconstitutionally low, the commission might establish other schedules, and by silence the court sanctioned the pro- cedure of the commission. See also Home T. & T. Co. v. Los Angeles, infra; Bauman v. Ross (1897) 167 U. S. 548, 593, 17 Sup. Ct. 966, 983, 42 L. ed. 270; Southern P. Co. v. Board of R. Comrs. (1896) 78 Fed. 236, 258; con- curring opinion in Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 460, 10 Sup. Ct. 462, 703, 33 L. ed. 970. Compare opinion of court in latter case, 134 U. S. 457, 10 Sup. Ct. 467, 33 L. ed. 981; San Diego L. & T. Co. v. National City (1899) 174 U. S. 739, 19 Sup. Ct. 804, 43 L. ed. 1154. In Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 278, 29 Sup. Ct. 50, 54, 53 L. ed. 176, the court said, "Rate regulation is purely a legislative function and, even where exercised by a subordinate body upon which it is conferred, the notice and hearing essential in judi- cial proceedings and, for peculiar reasons, in some forms of taxation would not seem to be indispensable. It may be that the authority to regu- late rates, conferred upon the city council by sec. 31 of the charter, is not an authority, arbitrarily, and without investigation, to fix rates of charges, and that if charges were fixed in that manner the act would be beyond the authority of the council. It is not unlikely that the California courts would give this construction to the ordinance. Acting within the authority thus limited it would seem that the character and extent of the investigation made and notice and hearing afforded, in the exercise of this legislative function, would be left to the discretion of the body exercising it. . . . But we need not now decide whether notice and hearing were required. Both were given in this case. ... If notice and an opportunity to be heard were indispensable, which we do not decide, it is enough that, al- EXTENT OF THE RESTRAINT. 137 the courts.^^ "Due process requires that the court which assumes to detemiine the rights of parties shall have jur- isdiction,^^ and that there shall be notice and opportunity for hearing given the parties.^'* Subject to these two fun- damental conditions, which seem to be universally pre- scribed in all systems of law established by civilized coun- though the charter be silent, such notice and hearing were afforded by ordinance, as in this case." Consider note in 19 Harv. L. Rev. at 607. 52 Interstate Com. Comn. v. Brimson (1894) 154 U. S. 447, 485, 14 Sup. Ct. 1125, 1136, 38 L. ed. 1047; concurring opinion in Winchester & S. R. Co. V. Commonwealth (1906) 106 Va. 264, 281, 55 S. E. 692, 698. Compare discussion in Louisville & N. R. Co. v. Shiler (1911) 186 Fed. 176. 53Pennoyer v. Neff (1877) 95 U. S. 714, 733, 24 L. ed. 565; Scott v. Mc- Neal (1894) 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. ed. 896; Old W. M. L. Assn. V. McDonough (1907) 204 U. S. 8, 27 Sup. Ct. 236, 51 L. ed. 345. See also authorities cited in section 104, infra. 54Hovey v. Elliott (1897) 167 U. S. 409, 17 Sup. Ct. 841, 42 L. ed. 215; Roller V. Holly (1900) 176 U. S. 398, 20 Sup. Ct. 410, 44 L. ed. 520; and see Londoner v. Denver (1908) 210 U. S. 373, 28 Sup. Ct. 708, 52 L. ed. 1103. See also Ochoa v. Hernandez y Morales (1913) 230 U. S. 139, 33 Sup. Ct. 1033, 57 L. ed. 1427; United States ex rel. Turner v. Fisher (1911) 222 U. S. 204, 32 Sup. Ct. 37, 56 L. ed. 165; Garfield v. Goldsby (1908) 211 U. S. 249, 29 Sup. Ct. 62, 53 L. ed. 168 ; Central of Ga. Ry. Co. v. Wright (1907) 207 U. S. 127, 28 Sup. Ct. 47, 52 L. ed. 134; Wetmore v. Karrick (1907) 205 U. S. 141, 27 Sup. Ct. 434, 51 L. ed. 745. Compare Mover v. Peabody (1909) 212 U. S. 78, 29 Sup. Ct. 235, 53 L. ed. 410; Hammond P. Co. V. Arkansas (1909) 212 U. S. 322, 349-351, 29 Sup. Ct. 370, 379, 380, 53 L. ed. 530; Washington ex rel. Oregon R. & N. Co. v. Fairchild (1912) 224 U. S. 510, 32 Sup. Ct. 535, 56 L. ed. 863; American L. Co. v. Zeiss (1911) 219 U. S. 47, 71, 31 Sup. Ct. 200, 209, 55 L. ed. 82; North A. C. S. Co. V. Chicago (1908) 211 U. S. 306, 29 Sup. Ct. 101, 53 L. ed. 195; Home T. & T. Co v. Los Angeles (1908) 211 U. S. 265, 29 Sup. Ct. 50, 53 L. ed. 176; Jacob v. Roberts (1912) 223 U. S. 261, 265, 32 Sup. Ct. 303, 305, 56 L. ed. 429; Longyear v. Toolan (1908) 209 U. S. 414, 28 Sup. Ct. 506, 52 L. ed. 859; Ballard v. Hunter (1907) 204 U. S. 241, 262, 27 Sup. Ct. 261, 269, 51 L. ed. 461; Felts v. Murphy (1906) 201 U. S. 123, 26 Sup. Ct. 366, 50 L. ed. 689. "Even although the power of a state legislature to prescribe length of notice is not absolute, yet it is certain 'that only in a clear case will a notice authorized by the legislature be set aside as wholly ineffectual on account of the shortness of the time:'" Goodrich v. Fer- ris (1909) 214 U. S. 71, 81, 29 Sup. Ct. 580, 583, 53 L. ed. 914, citing Bellingham B. & B. C. R. Co. v. New Whatcom (1899) 172 U. S. 314, 318, 19 Sup. Ct. 205, 206, 43 L. ed. 460. 138 DUE PROCESS CLAUSES— POSITION OF COURT. tries, this court has up to this time sustained all state laws, statutory or judicially declared, regulatiug proced- ure, evidence and methods of trial, and held them to be consistent with due process of law."°^ ''The cases pro- ceed upon the theory that, given a court of justice which has jurisdiction, and acts, not arbitrarily, but in conform- ity with a general law, upon evidence, and after inquiry made with notice to the parties affected and opportunity to be heard, then all the requirements of due process, so far as it relates to procedure in court and methods of trial and character and effect of evidence, are complied with."5« Provision regarded as a substantive restraint. 66. As we have already said, the court holds that the due process provision relates not only to procedure but also to substantive law. It declares that men possess rights to life, liberty and property of which, by virtue of the due process clauses, they may not be deprived im- properly by any organ of state or federal govemment.^^ 55 Twilling V. New Jersey (1908) 211 U. S. 78, 110, 111, 29 Sup. Ct. 14, 24, 53 L. ed. 97, citing a number of authorities in support of the state- ment. See also Jordan v. Massachusetts (1912) 225 U. S. 167, 32 Sup. Ct. 651, 56 L. ed. 1038; Standard Oil Co. v. Missouri (1912) 224 U. S. 270, 287, 32 Sup. Ct. 406, 411, 56 L. ed. 760; American L. Co. v. Zeiss (1911) 219 U. S. 47, 71, 31 Sup. Ct. 200, 209, 55 L. ed. 82; Reetz v. Michigan (1903) 188 U. S. 505, 508, 23 Sup. Ct. 390, 392, 47 L. ed. 563; Ex parte Wall (1883) 107 U. S. 265, 289, 2 Sup. Ct. 569, 589, 27 L. ed. 552. 56 Twining v. New Jersey (1908) 211 U. S. 78, 111, 29 Sup. Ct. 14, 25, 53 L. ed. 97. The court then quotes from several opinions. See also Brad- ley V. Richmond (1913) 227 U. S. 477, 33 Sup. Ct. 318, 57 L. ed. 603, and editorial The Menace of Law, The Independent, Aug., 1912, 281. Com- pare Interstate Com. Comn. v. Louisville & N. R. Co. (1913) 227 U. S. 88, 33 Sup. Ct. 185, 57 L. ed. 431. 57 On the statement that the provision restricts all departments of gov- ernment see sec. 74, infra; Murray's Lessee v. Hoboken L. & I. Co. (1855) 18 How. 272, 276, 15 L. ed. 372; Chicago, B. & Q. R. Co. v. Chicago (1897) EXTENT OF THE RESTRAINT. 139 Its position is not merely that if there is any deprivation it must take place in a proper manner. The provision is not sufficiently complied with by a mere observance of formalities.^^ There must be a proper occasion for the 166 U. S. 226, 233, 234, 17 Sup. Ct. 581, 583, 41 L. ed. 979; Hovey v. El- liott (1897) 167 U. S. 409, 417, 17 Sup. Ct. 841, 844, 42 L. ed. 215; and also Westervelt v. Gregg (1854) 12 N. Y. 202, 212; Bank of Columbia v. Okely (1819) 4 Wheat. 235, 244, 4 L. ed. 559. Compare Walker v. Sauvi- net (1875) 92 U. S. 90, 93, 23 L. ed. 678. 58 See language used in Long I. W. S. Co. v. Brooklyn (1897) 166 U. S. 685, 695, 17 Sup. Ct. 718, 722, 41 L. ed. 1165; Loehner v. New York (1905) 198 U. S. 45, 56, 25 Sup. Ct. 539, 542, 49 L. ed. 937; Fayerweather v. Ritch (1904) 195 U. S. 276, 297, 298, 25 Sup. Ct. 58, 63, 64, 49 L. ed. 193; Simon v. Craft (1901) 182 U. S. 427, 436, 21 Sup. Ct. 836, 839, 45 L. ed. 1165; and also King v. Hatfield (1900) 130 Fed. 564, 582; Scott v. City of Toledo (1888) 36 Fed. 385, 393, 1 L. R. A. 688; decisions to the same effect in Eubank v. Richmond (1913) 226 U. S. 137, 33 Sup. Ct. 76, 57 L. ed. 156; Washington ex rel. Oregon R. & N. Co. v. Fairchild (1912) 224 U. S. 510, 32 Sup. Ct. 535, 56 L. ed. 863; Choate v. Trapp (1912) 224 U. S. 665, 32 Sup. Ct. 565, 56 L. ed. 941; Missouri P. Ry. Co. v. Nebraska (1910) 217 U. S. 196, 30 Sup. Ct. 461, 54 L. ed. 727; Western U. T. Co. V. Kansas (1910) 216 U. S. 1, 30 Sup. Ct. 190, 54 L. ed. 355; Pullman Co. V. Kansas (1910) 216 U. S. 56, 30 Sup. Ct. 232, 54 L. ed. 378; Ludwig v. Western U. T. Co. (1910) 216 U. S. 146, 30 Sup. Ct. 280, 54 L. ed. 423; Selliger v. Kentucky (1909) 213 U. S. 200, 29 Sup. Ct. 449, 53 L. ed. 761; Louisville & N. R. Co. v. Central S. Y. Co. (1909) 212 U. S. 132, 29 Sup. Ct. 246, 53 L. ed. 441; Adair v. United States (1908) 208 U. S. 161, 28 Sup. Ct. 277, 52 L. ed. 436; Raymond v. Chicago U. T. Co. (1907) 207 U. S. 20, 28 Sup. Ct. 7, 52 L. ed. 78; Buck v. Beach (1907) 206 U. S. 392, 27 Sup. Ct. 712, 51 L. ed. 1106; Otis Co. v. Ludlow M, Co. (1906) 201 U.S. 140, 26 Sup. Ct. 353, 50 L. ed. 696; Chicago, B. & Q. Ry. Co. v. People ( 1906) 200 U. S. 561, 26 Sup. Ct. 241, 50 L. ed. 596; Loehner v. New York (1905) 198 U. S. 45, 25 Sup. Ct. 539, 49 L. ed. 937; Dobbins v. Los Angeles (1904) 195 U. S. 223, 25 Sup. Ct. 18, 49 L. ed. 169; Prout v. Starr (1903) 188 U. S. 537, 23 Sup. Ct. 398, 47 L. ed. 584; Chicago, M. & St. P. Ry. Co. v. Tompkins (1900) 176 U. S. 167, 20 Sup. Ct. 336, 44 L. ed. 417; Green B. & M. C. Co. V. Patten P. Co. (1898) 172 U. S. 58, 82, 19 Sup. Ct. 97, 106, 43 L. ed. 364 (1899) 173 U. S. 179, 19 Sup. Ct. 316, 43 L. ed. 658; All- geyer v. Louisiana (1897) 165 U. S. 578, 17 Sup. Ct. 427, 41 L. ed. 832; Missouri P. Ry. Co. v. Nebraska (1896) 164 U. S. 403, 17 Sup. Ct. 130, 41 L. ed. 489; Kaukauna W. P. Co. v. Green B. & M. C. Co. (1891) 142 U. S. 254, 269, 271, 12 Sup. Ct. 173, 176, 177, 35 L. ed. 1004; Railroad Comn. of Louisiana v. Cumberland T. & T. Co. (1909) 212 U. S. 414, 29 Sup. Ct. 357, 53 L. ed. 577; and cases cited in notes 19 to 23, supra. But 140 DUE PROCESS CLAUSES— POSITION OF COURT. deprivation, of which a taking by way of punishment is one illustration, and if property is taken for public use there must, at least as a general rule, be just compensa- tion. And the court holds that, with limitations asserted in some cases, the propriety of the taking is subject to ju- dicial review. No complete general statement as to restraint. 67. But beyond those points the extent of the restraint which the clauses are said to impose is not altogether defi- nite. The court has not stated any clear general test of the existence of rights or the propriety of deprivations. It has not attempted to show the boundaries of the re- straint by any definite and comprehensive statement.^^ It has, instead, been content to mark the scope of the pro- vision by ''the gradual process of judicial inclusion and exclusion, " ^° in which the decisions certainly do not compare Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 157, 158, 17 Sup. Ct. 56, 62, 63, 41 L. cd. 369; Missouri P. Ry. Co. v, Humes, (1885) 115 U. S. 512, 520, 6 Sup. Ct. 110, 112, 29 L. ed. 463; Walker v. Sauvinet (1875) 92 U. S. 90, 93, 23 L. ed. 678; concurring opinion in Taylor and Marshall v. Beckham (1900) 178 U. S. 548, 585, 20 Sup. Ct. 890, 1009, 903, 904, 44 L. ed. 1187. 59 See Ballard v. Hunter (1907) 204 U. S. 241, 255, 27 Sup. Ct. 261, 266, 51 L. ed. 461; Holden v. Hardy (1898) 169 U. S. 366, 389, 18 Sup. Ct. 383, 387, 42 L. ed. 780; Eubank v. Richmond (1912) 226 U. S. 137, 143, 33 Sup. Ct. 76, 77, 57 L. ed. 156; Twining v. New Jersey (1908) 211 U. S. 78, 101, 29 Sup. Ct. 14, 20, 53 L. ed. 97; Orient Ins. Co. v. Daggs (1899) 172 U. S. 557, 563, 19 Sup. Ct. 281, 283, 43 L. ed. 552; Missouri P. Ry. Co. V. Humes (1885) 115 U. S. 512, 519, 6 Sup. Ct. 110, 112, 29 L. ed. 463. 60 Davidson v. New Orleans (1877) 96 U. S. 97, 104, 24 L, ed. 616; Hagar v. Reclamation Dist. (1884) 111 U. S. 701, 707, 4 Sup. Ct. 663, 667, 28 L. ed. 569. See also Twining v. New Jersey (1908) 211 U. S. 78, 100, 29 Sup. Ct. 14, 20, 53 L. ed. 97; Missouri P. Ry. Co. v. Humes (1885) 115 U. S. 512, 519, 6 Sup. Ct. 110, 112, 29 L. ed. 463; Noble State Bank v. Haskell (1911) 219 U. S. 104, 110, 112, 31 Sup. Ct. 186, 188, 55 L. ed. 112; Hudson C. W. Co. v. McCarter (1908) 209 U. S. 349, 355, 28 Sup. Ct. 529, 531, 52 L. ed. 828; Freeland v. Williams (1889) 131 U. S. 405, 418, 9 Sup. Ct. 763, 707, 33 L. ed. 193; Johnson v. United States (1913) EXTENT OF THE RESTKAINT. 141 show a thoroughly uniform tendency.*'^ And while it is possible to classify most of the decisions which have been based upon the provision and to state some definite rules, it is not yet possible to unify the several lines of decision and to draw from them a clear and complete statement of the general extent of the restraint.^^ 228 U. S. 457, 458, 33 Sup. Ct. 572, 57 L. ed. 919; St. Louis, I. M. & S. Ry. Co. V. Davis (1904) 132 Fed. 629, 633; Saxton Nat. Bank v. Carswell (1895) 126 Mo. 436, 442, 29 S. W. 279, 280; Mayor v. Scharf (1880) 54 Md. 499, 517; note 62, infra. 61 Observe the conflict in decisions in cases cited in note 43, supra; in section 68, infra; and in sees. 92-106, infra. See also, for example, the different tendencies shown in Bacon v. Walker (1907) 204 U. S. 311, 27 Sup. Ct. 289, 51 L. ed. 499; McLean v. Arkansas (1909) 211 U. S. 539, 29 Sup. Ct. 206, 53 L. ed. 315; Heath & Milligan Mfg. Co. v. Worst (1907) 207 U. S. 338, 357, 28 Sup. Ct. 114, 120, 52 L. ed. 236, where statutes were upheld; in Lochner v. New York (1905) 198 U. S. 45, 25 Sup. Ct. 539, 49 L. ed. 937, where, as Holmes, J., suggested, dissenting (198 U. S. 75, 25 Sup. Ct. 546, 49 L. ed. 949), the court seemed to regard the Fourteenth Amendment as an enactment of Herbert Spencer's Social Statics; and in the dissenting opinion of Brewer, J., in Budd v. New York ( 1892 ) 143 U. S. 517, 551, 12 Sup. Ct. 468, 478, 36 L. ed. 247. "In the line of decisions under the Fourteenth Amendment uncertainty has been the rule:" Col- lins, The Fourteenth Amendment and the States, 119. See also ibid, 117, 118, 120-124. That author discussss the question, especially comparing the decisions and the opinions in Gulf, C. & S. F. Ry. Co. v. Ellis (1897) 165 U. S. 150, 17 Sup. Ct. 255, 41 L. ed. 666, and Atchison, T. & S. F. R. Co. V. Matthews (1899) 174 U. S. 96, 19 Sup. Ct. 609, 43 L. ed. 909, saying (p. 124), "Each side — not of the attorneys — but of the members of the Supreme Court itself, cited numerous precedents. If precedents could es- tablish the law under the Amendment, both sides were right in each case." And see note 73, infra. 62 "Cases under the Amendment began coming before that tribunal as early as 1873, but the court thought it wiser to leave the definition of the scope and the meaning of its terms to the operation of the doctrine of stare decisis rather than to attempt a definition of the whole provision outright. Thus by the gradual process of judicial inclusion and exclusion it was in- tended that there should be accumulated in the course of time a long line of judicial precedents based on concrete cases presented for decision, which would in themselves define the terms of the Amendment. . . . From the adoption of the Amendment in 1868 to the close of the 1910-1911 Term of the Supreme Court, six hundred and four opinions have been delivered imder section one of that article. We have now a line of decisions run- 142 DUE PROCESS CLAUSES— POSITION OF COURT. Particular lines of decision. 68. The court has said broadly that the clauses forbid the deprivation of the substance of individual rights to life, liberty or property by any organ of government by any method whatever.®^ But in almost all of the cases which have arisen under the due process clauses the court has given to those clauses other interpretations, not avow- edly, at least, by way of elaboration or illustration of that indefinite statement but independently. Thus it has said that the clauses prohibit the taking of private property for public use without just compensation,^^ and, there- fore, prohibit the limiting of the charges of railroad com- panies to an improper extent.*'^ It has also said in other cases that the clauses forbid the enforcement of unrea- sonable regulations,^^ a regulation of railroad charges be- ing unreasonable if it does not yield a sufficient rate of re- ning back for forty-one years. Has the doctrine of stare decisis effected a definition of the Amendment? Is its sphere of operation now known? These questions must be answered in the negative. After forty years from the date of the adoption of the Amendment, Mr. Justice Moody, in deliv- ering the opinion of the court in a recent case, could say: 'The Four- teenth Amendment withdrew from the states powers theretofore enjoyed by them, to an extent not yet fully ascertained.' (Twining v. Xew Jersey (1908) 211 U. S. 78, 92, 29 Sup. Ct. 14, 16, 17, 53 L. ed. 97.) In a still more recent case, after five hundred and sixty-seven cases involving an interpretation of the 'due process of law' clause under the Amendment had been considered by the court, Mr. Justice Holmes, in delivering the opinion, said, 'What is due process of law depends on the circumstances.' (Meyer V. Peabody (1909) 212 U. S. 78, 84, 29 Sup. Ct. 235, 236, 53 L. ed. 410.) We have made but little progress in reaching even a working definition of section one of the Fourteenth Amendment under the principle of stare decisis:" Collins, The Fourteenth Amendment and the States, 112, 113, 114. "That clause is already a catch-all, overflowing with misplaced prin- ciples:" Wigmore, Evidence, p. 3102, note. See also notes 14, supra, and 73, infra. <>3 See sec. 72, infra. 64 See sec. 119, infra. G5 See notes 150, 165 in Chapter 4, infra. 66 See sec. 105, infra. EXTENT OF THE RESTRAINT. 143 turn to the carrier,^" or, apparently, if the court considers it unjustifiable for any other reason.^^ And, in cases in which railroad charges were not involved, the court has condemned regulations upon the ground that they were discriminatory; ^^ it has spoken of acts beyond the scope of governmental authority; '^^ and, while it does not in- quire whether legislators were influenced by improper motives,'^^ it has said that administrative decisions were final because fraud was not provedJ^ Therefore, instead of making a definite statement as to the general scope of the provision, it has been necessary for us to state a rather vague general proposition and then call attention to several narrower lines of decision which, unless with rare exceptions, have not avowedly been made by way of elaboration or illustration of any one underly- ing principle which is common to all the cases. "^ 67 See note 165 in Chapter 4, infra. 68 Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858. 69 See sec. 89, infra. 70 See sec. 104, infra. 71 See sec. 90, infra. 72 See sec. 90, infra. 73 See notes 14, 62, supra. "The modern concept of due process of law is not a legal concept at all; it comprises nothing more or less than a roving commission to judges to sink whatever legislative craft may appear to them to be, from the standpoint of vested interests, of a piratical tendency:" E. A. Corwin, book review in 6 Am. Pol. Sci. Rev. 271. "We have very effect- ually disposed of the last safeguard against the establishment of a judicial veto upon any and all acts of our legislative assemblies by discarding the rule that the courts must limit their inquiry to the question of the existence of the power which the legislature has undertaken to exercise, and that where the power exists its exercise is beyond the judicial sphere of in- fluence. The courts now openly review the use made by the legislature of its conceded powers, thus arrogating to themselves a distinctly legislative function. The result of all these changes may be summed up in a sentence. There are now no such 'plain and simple' rules of interpretation as Judge Lurton claims; on the contrary, there are now practically no rules at all. Each case is supposed to stand 'on its own merits,' which, translated into 144 DUE PROCESS CLAUSES— POSITION OF COURT. Detailed application of rules. 69. The application of the rules which have been set forth in this chapter to questions of procedure have al- ready been stated with sufficient fulness. The detailed application of the rules of substantive law so far as they relate to rate regulation will be considered at greater length in a subsequent chapter.'^^ Different tests of constitutionality. 70. In the cases which we have noted the court has con- sidered the effect of the governmental action or its pro- priety.'^^ But the court does not always give weight to such considerations. In other cases it has said that ques- tions of power do not depend upon the extent to which it may be exercised.'^ ^ And it has often held that an erron- ordinary English, simply means that each law is declared 'constitutional' or 'unconstitutional' according to the opinion the judges entertain as to its wisdom. This is another reason for the fact that almost all important constitutional cases are now decided by divided courts. Since there are no longer any set rules by which the judges can be guided, since they are left to determine the propriety or wisdom of laws according to the canons of politics and statesmanship, they naturally exhibit those differences of opin- ion which we expect to find in legislative bodies. This leads our Supreme Court as well as our other courts into the position — -anomalous and absurd for a court, though perfectly proper for a legislature — of deciding in dif- ferent ways cases similar in principle:" Boudin, Government by Judiciary, 26 Pol. Sci. Quar. 238, 267. Compare note 116 in Chapter 4, infra. 74 Chapter 6, infra. 75 See also St. Louis, I. M. & S. Ry. Co. v. Wynne (1912) 224 U. S. 354, 32 Sup. Ct. 493, 56 L. ed. 799. Compare Chin Yow v. United States (1908) 208 U. S. 8, 28 Sup. Ct. 201, 52 L. ed. 369, an immigration case, in which the court said that "unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open, and, we may add, the denial of a hearing cannot be estab- lished by proving that the decision was wrong." And compare note 61, supra; note 64 in Chapter 4, infra. 76 Brown v. Maryland (1827) 12 Wheat. 419, 439, 6 L. ed. 678; McCray V. United States (1904) 195 U. S. 27, 56, 24 Sup. Ct. 769, 776, 49 L. ed. 78, and cases there cited; Flint v. Stone Tracy Co. (1911) 220 U. S. 107, EXTENT OF THE RESTRAINT. 145 eous judicial action does not for that reason violate the due process provision,'^''^ and it has so decided even in 153, 154, 158, 31 Sup. Ct. 342, 350, 352, 55 L. ed. 389; Missouri P. Ry. Co. V. Kansas (1910) 216 U. S. 262, 282, 30 Sup. Ct. 330, 337, 54 L. ed. 472; Munn V. Illinois (1876) 94 U. S. 113, 134, 24 L. ed. 77; Sweet v. Rechel (1895) 159 U. S. 380, 393, 16 Sup. Ct. 43, 46, 40 L. ed. 188; United States V. Delaware & H. Co. (1909) 213 U. S. 366, 405, 29 Sup. Ct. 527, 535, 53 L. ed. 836; Moyer v. Peabody (1909) 212 U. S. 78, 29 Sup. Ct. 235, 53 L. ed. 410. See also Appleby v. Buffalo (1911) 221 U. S. 524, 31 Sup. Ct. 699, 55 L. ed. 838; McGovern v. City of New York (1913) 229 U. S. 363, 371, 33 Sup. Ct. 876, 877, 57 L. ed. 1228. Compare St. Louis, I. M. & S. Ry. Co. V. Wynne (1912) 224 U. S. 354, 32 Sup. Ct. 493, 56 L. ed. 799; Atlantic C. L. R. Co. V. North Carolina Corp. Comn. (1907) 206 U. S. 1, 20, 27 Sup. Ct. 585, 592, 51 L. ed. 933; McCray v. United States (1904) 195 U. S. 27, 56, 59-61, 64, 24 Sup. Ct. 769, 776, 778, 780, 49 L. ed. 78 ; and also Waters- Pierce 0. Co. V. Texas (1909) 212 U. S. 86, 29 Sup. Ct. 220, 53 L. ed. 417; Corwin, Due Process of Law Before the Civil War, 24 Harv. L. Rev. at 469; Corwin, The Supreme Court and the Fourteenth Amendment, 7 Mich. L. Rev. at 670; note 73, supra. 77Arrowsmith v. Harmoning (1886) 118 U. S. 194, 6 Sup. Ct. 1023, 30 L. ed. 243; In re Converse (1891) 137 U. S. 624, 11 Sup. Ct. 191, 34 L. ed. 796; Patterson v. Colorado (1907) 205 U. S. 454, 461, 27 Sup. Ct. 556, 557, 51 L. ed. 879; McGovern v. City of New York (1913) 229 U. S. 363, 371, 33 Sup. Ct. 876, 877, 57 L. ed. 1228; Bonner v. Gorman (1909) 213 U. S. 86, 91, 29 Sup. Ct. 483, 484, 53 L. ed. 709; Sauer v. City of New York (1907) 206 U. S. 536, 543, 545, 27 Sup. Ct. 683, 688, 689, 51 L. ed. 1176; Ballard v. Hunter (1907) 204 U. S. 241, 258, 27 Sup. Ct. 261, 267, 41 L. ed. 461 ; Howard v. Kentucky ( 1906) 200 U. S. 164, 26 Sup. Ct. 189, 50 L. ed. 421 ; Rogers v. Peck ( 1905 ) 199 U. S. 425, 26 Sup. Ct. 87, 50 L. ed. 256 ; Backus V. Fort S. U. D. Co. ( 1898) 169 U. S. 557, 576, 18 Sup. Ct. 445, 452, 42 L. ed. 853; Central L. Co. v. Laidley (1895) 159 U. S. 103, 16 Sup. Ct. 80, 40 L. ed. 91; Bergemann v. Backer (1895) 157 U. S. 655, 15 Sup. Ct. 727, 39 L. ed. 845; Baltimore T. Co. v. Baltimore B. R. Co. (1894) 151 U. S. 137, 14 Sup. Ct. 294, 38 L. ed. 102; Lent v. Tillson (1891) 140 U. S. 316, 331, 11 Sup. Ct. 825, 831, 35 L. ed. 419; Marrow v. Brinkley (1889) 129 U. S. 178, 9 Sup. Ct. 267, 32 L. ed. 954. See also Chin Yow v. United States (1908) 208 U. S. 8, 28 Sup. Ct. 201, 52 L. ed. 369; In re Manning (1891) 139 U. S. 504, 11 Sup. Ct. 624, 35 L. ed. 264; Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 157, 168, 17 Sup. Ct. 56, 62, 66, 67, 41 L. ed. 369; Lambert v. Barrett (1895) 157 U. S. 697, 15 Sup. Ct. 722, 39 L. ed. 865; Fidelity & C. Co. v. Southern Ry. N. Co. (1909) 214 U. S. 498, 29 Sup. Ct. 699, 53 L. ed. 1060; Delmar Jockey Club v. Missouri (1908) 210 U. S. 324, 335, 28 Sup. Ct. 732, 735, 52 L. ed. 1080; Metropolis T. Co. v. Chicago (1913) 228 U. S. 61, 70, 33 Sup. Ct. 441, 443, 57 L. ed. 730. But compare St. Louis, I. M. & S. Ry. Co. v. Taylor (1908) 210 U. S. 281, 292, 28 Sup. Ct. 146 DUE PROCESS CLAUSES— POSITION OF COURT. cases in which sentences of capital punishment have been pronounced. We shall not, however, attempt in the present chapter to reconcile these several lines of decision. A discussion of the purpose of those who placed the due process clauses in the Federal Constitution will require a separate chap- ter.'^s 616, 620, 52 L. ed. 1080; Green B. & M. C. Co. v. Patten P. Co. (1898) 172 U. S. 58, 82, 19 Sup. Ct. 97, 106, 43 L. ed. 364 (1899) 173 U. S. 179, 19 Sup. Ct. 316, 43 L. ed. 658; American Ex. Co. v. Mullins (1909) 212 U. S. 311, 29 Sup. Ct. 381, 53 L. ed. 525. 78 Chapter 4, infra. CHAPTER IV. THE DUE PROCESS CLAUSES— DISCUSSION. INTRODUCTORY. 71. Scope of chapter. IS THE PROVISION NECESSARILY A SUBSTANTIVE RESTRAINT? 72. Position taken in Hurtado v. California. 73. Are all organs of government necessarily restrained? 74. The significance of the word "state." 75. Is the restraint necessarily more than procedural ? THE LAW OF THE LAND. 76. "Due process" and "law of the land" provisions are akin. 77. The "law of the land" in England. 78. "Due process of law" in England. 79. The provisions compared. 80. The term "law of the land" sometimes used in broader sense. 81. Term has same general scope in America as in England. 82. How may the "law of the land" be changed? 83. The Constitution does not make the "law of the land" unchangeable. 84. The "law of the land" may be different in the several states. 85. Judicial alteration of the "law of the land." THE ARGUMENT CONCERNING REDUNDANCY. 86. The question stated. 87. The question elaborated. 88. Discussion of question of redundancy. DISCRIMINATION. 89. Position of court on discriminatory state action. 90. Position of court on fraud and improper motives. 91. Discussion. CONSTITUTIONAL AND EXTRA-CONSTITUTIONAL RESTRAINTS. 92. Inconsistent positions taken. 93. Power to declare governmental action unconstitutional. 94. General duty to enforce legislation. 95. Passing upon the wisdom or justice of governmental action. 96. The Ninth Amendment. 97. Rule stated in Twining v. New Jersey. 147 148 DUE PROCESS CLAUSES— DISCUSSION. 98. Extra-constitutional restraints and rights. 99. Inalienable rights. 100. Natural justice. 101. Fundamental rights. 102. "Essential nature of all free governments." 103. Discussion on inalienable rights, etc. 104. Scope of governmental authority. REASONABLENESS. 105. Unreasonable or arbitrary governmental action. 106. Unnecessary governmental action. 107. Nature of opinions upon these subjects. 108. Relevancy of decisions on reasonableness of ordinances. 109. Reasonable exercises of police power. 110. Meaning of term "police power." 111. Relevancy of decisions on police power. 112 Is a change of law a "deprivation?" 113. Summary as to police power. 114. Reasonableness and natural justice. 115. Massachusetts decisions. 116. Position of court as to arbitrary governmental action. 117. Discussion of position. 118. Reasonableness of rate regulations. JUST COMPENSATION. 119. The position of the court. 120. Dicta in earliest cases. 121. Chicago, M. & St. P. Ry. Co. v. Minnesota. 122. Kaukauna and Yesler cases. 123. Chicago, B. & Q. R. Co. v. Chicago. 124. The taking of property for private use. 125. Later cases. 126. General comment on position of court. TEXT AND CONTEXT. 127. The significance of tlie context. 128. The true meaning of the term "liberty." 129. The position of the court on the term "liberty." 130. Allgeyer v. Louisiana. CONCLUSION. 131. Position of court criticized. 132. Should the court now take the correct position? INTRODUCTORY. 149 INTRODUCTORY. Scope of chapter. 71. We have already noted that the United States Su- preme Court has not stated any clear general test of the compliance of governmental action with the requirement of the due process provision. We must now add that the court has not shown sufficiently the grounds for the de- cisions which it has rendered under that provision. It has given a number of reasons for its decisions, but it has not, unless in exceptional cases, shown how those reasons were derived from the provision which the court was called upon to interpret. In many cases it has not even at- tempted to show by what process of reasoning its de- cisions were derived from the terms of the due process clauses. In other cases it has not shown sufficiently the connection between its conclusions and the words of the Constitution upon which any conclusions must be based. And if the court has at any time shown clearly that the decisions were based upon a careful interpretation of the due process clauses, it certainly has not, by reference or otherwise, given to that demonstration the prominence which it deserved. Indeed, the reasons which the court has given for some of its decisions under the due process clauses are not con- sistent with reasons which the court has given for its de- cisions in other cases. We must, then, examine the funda- mental reasons for its decisions, in order to reconcile the cases if that can be done, or, if it cannot be done, in order to determine which line of decisions rests upon correct principles.^ For even if we do not go so far as the court 1 "We must, then, either reconcile the cases, or, if this cannot be done, determine which line rests upon the right principle; and having so deter- mined, overrule or qualify the others, and apply and enforce the correct doctrine. This is the ease, since to do otherwise would serve only to add 150 DUE PROCESS CLAUSES— DISCUSSION. itself has gone and say that the increasing frequency with which the clauses are invoked furnishes abundant evi- dence that there exists some strange misconception of the scope of the provision,^ we must at least realize that in view of the state of the authorities it will be necessary for us to do more than simply compile the results of the gradual process of judicial inclusion and exclusion. We shall, therefore, consider whatever reasons the court has given for declaring that the clauses established particular principles; we shall examine other lines of thought which, though not expressed so definitely, seem to have influenced the decisions; and we shall inquire whether further reasons may properly be urged in sup- port of or in opposition to those decisions. By so doing we shall obtain a clearer, more correct and more complete view of the general purpose of those who placed the due process clauses in the Federal Constitution than we could secure in any other manner. Such a discussion will nec- essarily be somewhat long. But the importance of the subject and the state of the authorities furnish an ample warrant for an extensive examination of fundamental principles. IS THE PROVISION NECESSARILY A SUBSTANTIVE RE- STRAINT? Position taken in Hurtado v. California. 72. The clearest reasoning in support of the position of the court that the due process clauses concern more than to the seeming confusion and increase the uncertainty in the future as to a question which it is our plain duty to make free from uncertainty:" Ex parte Harding (1911) 219 U. S. 363, 378, 31 Sup. Ct. 324, 329, 55 L. ed. 252. While this case does not turn upon the due process provision, the language quoted is pertinent. 2 See p. 119, supra. IS PROVISION A SUBSTANTIVE RESTRAINT? 151 procedure ^ seems to have been advanced in the opinion in Hurtado v. California,^ in which the court admitted that in England the legislative department of government was not in any respect whatever restricted by the consti- tutional provision, which the court has declared to be closely akin to the due process requirement,^ that no one should suffer named deprivations except in accordance with the law of the land. The court said that, although the provisions of Magna Carta were directed against the king and acts of Parliament were always regarded as con- sistent with the law of the land, yet in this country the provisions in our Bills of Rights are limitations upon all departments of government, and for that reason provi- sions taken from the English constitution have a broader meaning than they had in England and must be held to guarantee not particular forms of procedure but the very substance of individual rights to life, liberty and prop- erty.^ 3 See sec. 66, supra. 4 (1884) 110 U. S. 516, 4 Sup. Ct. Ill, 292, 28 L. ed. 232. 5 See cases in note 18, infra. 6 "The concessions of Magna Carta were wrung from the king as guaran- tees against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord Coke in Bonham's Case (1609) 8 Coke, 114a, 118a, the omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Carta were incorporated into Bills of Rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims 152 DUE PROCESS CLAUSES— DISCUSSION. We are not at present interested in the actual decision in that case, for the statute under consideration, which was sustained, dealt only with a question of procedure. But the opinion is important because it contains what is apparently the clearest reasoning which has been ad- vanced by the court in support of its position. The court practically assumed that all of the provisions in our Bills of Rights apply to all organs of government and said that for that reason the provision must relate to more than procedure. Are all organs of government necessarily restrained? 73. In saying that the provisions of our constitutions apply to all organs of government the court was probably influenced by the fact that our Bills of Rights do contain of liberty and justice held in oui* system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but, in that application, as it would be in- congruous to measure and restrict them by the ancient customary English law, they must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty and property:" Hurtado v. California (1884) 110 U. S. 516, 531, 532, 4 Sup. Ct. Ill, 292, 119, 28 L. ed. 232. See also 110 U. S. at 535-537, 4 Sup. Ct. at 120, 121; Davidson v. New Orleans (1877) 96 U. S. 97, 102, 24 L. ed. 616; and con- curring opinion in the latter case. Compare 96 U. S. at 103, 104, 24 L. ed. at 619. The court in the Hurtado case added, "Restraints that could be fastened upon executive authority with precision and detail, might prove obstruc- tive and injurious when imposed on the just and necessary discretion of legislative power; and while in every instance laws that violated express and specific injunctions and prohibitions might, without embarrassment, be judicially declared to be void, yet any general principle or maxim, founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions merely establishing forms and modes of attainment. Such regulations, to adopt a sentence of Burke's, 'may alter the mode and application but have no power over the substance of original justice.' " IS PROVISION A SUBSTANTIVE EESTEAINT? 153 some provisions which restrict our legislative bodies. Yet obviously it does not follow therefrom that all of the pro- visions restrain our legislatures. The fact that a constitu- tion restrains each of the departments of government no more makes every restraint which that constitution places upon one department binding upon the rest than the fact that the Federal Constitution restrains the federal gov- ernment and restrains the states makes every restraint which that Constitution places upon the one binding upon the other. And certainly it is not self-evident that every restraint set forth in our constitutions is necessarily directed against every department of government, especially where the provision is not unlimited in its terms. The require- ment that no taxes shall be levied except in accordance with a law which originated in the House of Representa- tives does not constitute any restraint upon the House of Eepresentatives. And so also if when the due process provision was placed in the Federal Constitution it meant that no person should be deprived of life, liberty or prop- erty except in the manner prescribed by the law of the jurisdiction, the court cannot properly say that the pro- vision restricts a department of government which was authorized to change procedure in making such changes, and that if the original meaning of the tenn "due pro- cess of law" does not fit in with the assumption that all portions of the Constitution apply to all departments of government the meaning of the term must be changed rather than the assumption that the provision restrains all departments of government. We shall not pause here to consider the actual meaning of the term ' ' due process of law. " It is sufficient for our present purpose to point out that the court is not war- ranted in slurring over the particular provisions without 154 DUE PROCESS CLAUSES— DISCUSSION. careful examination and assuming that all of the pro- visions in our Bills of Rights necessarily restrain all de- partments of government and that the meanings of the provisions must be such as will correspond with this as- sumption. It will be obser\^ed that the court did not merely say that a provision of the Constitution restricts all depart- ments of government to which, regardless of its original application, it might be applied without changing its orig- inal meaning. The court went further than that : it went further than it would have gone if it had said, for in- stance, that, while in England a provision in the constitu- tion for trial by jury would not have been a restraint upon legislative regulation of judicial procedure, in this coun- try such a provision would limit the activity of the legisla- ture in that respect; for, regardless of the effect of such a provision in the mother country, there is nothing in the nature or terms or history of that provision which would make it inapplicable as a restraint upon legislation. But the court has gone even further than the assumption that our legislatures are restrained by all of the provisions of the constitutions which, regardless of their original appli- cations, might be treated as restraints upon legislation without changing their original meanings, and has prac- tically assumed that all of the provisions in our Bills of Rights necessarily restrain all of the departments of gov- ernment. And such an assumption, it is submitted, is not justifiable. The significance of the word ''state." 74. In interpreting the due process clause of the Four- teenth Amendment, the court in some cases has laid stress upon the fact that the requirement is that no "state" IS PROVISION A SUBSTANTIVE RESTRAINT? 155 shall deprive without due process of law, and has said that the word ''state" must necessarily cover all organs of state government/ Those who adopted the Fourteenth Amendment, by the language which they used, showed unquestionably that they intended to provide that organs of the state govern- ments should be bound by the due process requirement which had theretofore bound only organs of the federal government, and that if an organ of the federal govern- ment was bound by the due process clause of the Fifth Amendment the similar organ of state government should be bound by the provision of the Fourteenth Amendment. Yet it is not clear that they intended that their use of the word "state" should have any greater significance than this.^ Of course, if the due process clause had been the only provision which was placed in the Constitution in Recon- struction times, it might possibly be said that to decide that any organ of state government was not restrained by it would be to make that sole protection for the freed- men so inadequate that it could hardly be supposed that those who amended the Constitution in those stirring times intended that the provision should have simply that restraining force. But that is not the situation. The due process clause is only one out of a number of provisions which were placed in the Constitution at the same per- 7 Ex parte Virginia (1879) 100 U. S. 339, 347, 25 L. ed. 676; Neal v. Delaware (1880) 103 U. S. 370, 397, 26 L. ed. 567; Chicago B. & Q. R. Co. v. Chicago (1897) 166 U. S. 226, 233, 234, 17 Sup. Ct. 581, 583, 41 L. ed. 979; and see Lochner v. New York (1905) 198 U. S. 45, 56, 25 Sup. Ct. 539, 542, 49 L. ed. 937; Davidson v. New Orleans (1877) 96 U. S. 97, 102, 24 L. ed. 616; dissenting opinion in Taylor and Marshall v. Beckham (1900) 178 U. S. 548, 599, 600, 20 Sup. Ct. 904, 1014, 44 L. ed. 1187; sec. 58, supra. 8 See note 8 in Chapter 3, supra. 156 DUE PROCESS CLAUSES— DISCUSSION. iod.^^ For example, slavery was forbidden and legislation against the freedmen was prevented in large measure by provisions concerning the suffrage and representation. And so there is no such reason as that which has just been suggested for saying that the due process clause must be regarded as a restraint upon all organs of government. Still less can any one go on to claim that any particular clause of the Amendments must, of necessity, have been so framed as to meet every emergency; for that claim could not be made even for the Reconstruction Amend- ments as a whole. Nor is there anything in the conten- tion that unless all organs of government are restrained the provision is useless.^ By the Federal Constitution the federal government is prevented from doing some things which a state government may do, and vice versa. It is not said that because a provision applies to only one gov- ernment it does not amount to any restraint whatever; and so also it cannot be said that if a provision applies to only one department of government it has no re- straining force. ^*^ And it certainly cannot be contended that a provision must have as extensive an effect as those who interpret it may consider desirable. Is the restraint necessarily more than procedural? 75. Yet even if it were clearly shown that the due pro- cess provision constituted an independent restriction upon legislative regulation of procedure, it certainly would not follow that the provision related also to substantive law. The Amendments concerning jury trials limit the power 8a See 7 Mich. L. Eev. at 644 and note. 9 See cases in note 7, supra. 10 The weakness of the contention is also shown by a consideration of the language of the Constitution of Massachusetts, Part I, Articles 10 and 30. And see 24 Harv. L. Rev. at 369, 372. IS PROVISION A SUBSTANTIVE RESTRAINT? 157 of Congress over judicial procedure; but no one would think of contending that those provisions deal with any- thing except jury trials ; and in the argument in the opin- ion in the Hurtado case ^^ the court does not show any stronger reason for saying that the due process clauses must relate to more than procedure. Of course, our constitutions do in places deal with sub- stantive law. The provisions relating to religious free- dom and the provisions relating to slavery are instances of such provisions. But it is also clear beyond dispute that those who adopted our constitutions at other times sought to secure good government indirectly, and only in- directly, by provisions concerning governmental methods. The men who adopted the Fifth Amendment were men who placed a large amount of dependence upon forms and institutions.^^ They relied largely upon what they con- 11 See sec. 72, supra. 12 Sir Frederick Pollock speaks of "the very common error, especially- prevalent in the eighteenth century, of attributing a constant and in- fallible efficacy to the forms of government:" Pollock's Maine's Ancient Law, 175. Professor Thayer says, "The chief protections were a wide suf- frage, short terms of office, a double legislative chamber, and the so-called executive veto. There was, in general, the greatest unwillingness to give the judiciary any share in the law-making power." "The judiciary may well reflect that if they had been regarded by the people as the chief pro- tection against legislative violation of the constitution, they would not have been allowed merely this incidental and postponed control It was, then, all along true, and it was foreseen, that much which is harm- ful and unconstitutional may take effect without any capacity in the courts to prevent it, since their whole power is a judicial one. Their in- terference was but one of many safeguards, and its scope was narrow:" The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 137, note, 136, 137; Thayer, Legal Essays, 11, note, 11, 12. Chief Justice Marshall says, "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for ex- ample, of declaring war, the sole restraints on which they have relied, to se- cure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments:" Gibbons v. Ogden (1824) 9 Wheat. 1, 197, 6 L. ed. 23. See also Oceanic N. Co. v. Stranahan 158 DUE PROCESS CLAUSES— DISCUSSION. sidered an appropriate distribution and separation of the powers of government, npon popular representation in the legislature, and upon trial by jury. In conformity with these views they were unwilling that the judiciary should pass upon the desirability of legislation; ^^ and they were so well satisfied with trial by jury that by the Seventh Amendment, which was adopted at the same time as the Fifth Amendment, they were careful to provide that no appellate federal tribunal should consider whether the verdict of a jurj^ in a trial at common law were against the weight of the evidence. ^^ Moreover, in the Eecon- struction Amendments provisions concerning elections and office-holding take up fully one-half of the space and show that when that portion of the Constitution was adopted a large amount of reliance was placed upon the organization of the state governments for the securing of fair treatment to the freedmen. In short, it is clear that those who adopted the first ten Amendments and those who adopted the Recon- struction Amendments believed that by providing care- fully as to the agencies of government they were doing much towards securing good government. Such provi- sions cannot by any flight of the imagination be con- (1909) 214 U. S. 320, 340, 29 Sup. Ct. 671, 676, 53 L. ed. 1013; Twining V. New Jersey (1908) 211 U. S. 78, 106, 114, 29 Sup. Ct. 14, 22, 26, 53 L. ed. 97; McCray v. United States (1904) 195 U. S. 27, 55, 24 Sup. Ct. 769, 776, 49 L. ed. 78; Lottery Case— Champion v. Ames (1903) 188 U. S. 321, 363, 23 Sup. Ct. 321, 329, 330, 47 L. ed. 492; Missouri, K. & T. Ry. Co. v. May (1904) 194 U. S. 267, 270, 24 Sup. Ct. 638, 639, 48 L. ed. 971; County of Mobile v. Kimball (1880) 102 U. S. 691, 704, 26 L. ed. 238; Martin v. Mott (1827) 12 Wheat. 19, 32, 6 L. ed. 537; Dorman v. State (1859) 34 Ala. 216, 235; Kent, Commentaries, IT, *11; 9 Mich. L. Rev. 108, 109; Pollock's Maine's Ancient Law, xvii. 13 Elliot's Debates, V, 151, 155, 164, 166, 344, 428; notes 12, supra, and 81, infra; and see McMurtrie, The Jurisdiction to Declare Void Acts of Legislation, 32 Am. L. Reg. N. S. 1094, 1100, 1103. 14 See authorities cited in notes 45, 46 in Chap. 9, infra. THE LAW OF THE LAND. 159 stmed as relating directly to substantive law; and there are other provisions of the United States Constitution which are unquestionably strictly procedural. Therefore, we cannot say that a clause of the Constitution necessar- ily "must be held to guarantee not particular forms of procedure, but the very substance of individual rights to life, liberty and property," ^^ but we must, instead, in- quire as to the particular clause whether it has in fact that effect. THE LAW OF THE LAND. "Due process" and "law of the land" provisions are akin. 76. As already pointed out,^^ the court has said that the due process provision is akin to the provision in chapter 39 of Magna Carta ^'^ that "no free- man shall be arrested, or detained in prison, or de- prived of his freehold, or outlawed, or banished, or in any way molested ; and we will not set forth against him, nor send against him, unless by the lawful judgment of his peers and by the law of the land." In some cases it has said that the provision in the American Constitution is equivalent to the one in Magna Carta,^^ and in other cases 15 See Hurtado v. California, quoted in note 6, supra. 16 Sec. 72, supra. 17 The language quoted in the text is from the Magna Carta of 1215. On the translation see McKechnie, Magna Carta, 436, 442. Coke and others have followed the phraseology of the reissue of the Charter by Henry III in 1225, where the wording is somewhat different and where diflferent chap- ter-numbers prevail. See McKechnie, op. cit., 183. While the printed texts of Magna Carta are divided into numbered chapters, such an arrangement is simply a modern invention made for convenience of reference. The original is not divided into chapters: McKechnie, op. cit., 200. 18 Twining v. New Jersey (1908) 211 U. S. 78, 100, 105, 108, 29 Sup. Ct. 14, 20, 22, 23, 53 L. ed. 97; Missouri P. Ry. Co. v. Humes (1885) 115 U. S. 512, 519, 6 Sup. Ct. 110, 112, 29 L. ed. 463; Murray's Lessee v. Hoboken 160 DUE PROCESS CLAUSES— DISCUSSION. it lias said that while the clauses are akin the due process requirement must be given a more comprehensive inter- pretation in this country than that to which the require- ment of Magna Carta would have been entitled in Eng- land.^^ Both of these positions will be considered. The "law of the land" in England. 77. When the provision for the law of the land was used in Magna Carta it referred largely if not exclusively to procedure;-*^ indeed, it seems that in the chapter under consideration it must have referred to procedure exclu- sively. As Dr. Bigelow says, ' ' The expression ' per legem L. & I. Co. (1855) 18 How. 272, 276, 15 L. ed. 372; and see Walker v. Sauvinet (1875) 92 U. S. 90, 93, 23 L. ed. 678; Davidson v. New Orleans (1877) 96 U. S. 97, 101, 102, 24 L. ed. 616; Hurtado v. California (1884) 110 U. S. 516, 535, 4 Sup. Ct. Ill, 292, 120, 28 L. ed. 232; In re Keramler (1890) 136 U. S. 436, 448, 10 Sup. Ct. 930, 934, 34 L. ed. 519; French v. Barber A. P. Co. (1901) 181 U. S. 324, 333, 21 Sup. Ct. 625, 628, 45 L. ed. 879; Dent v. West Virginia (1889) 129 U. S. 114, 123, 124, 9 Sup. Ct. 231, 234, 32 L. ed. 623; 7 Harv. L. Eev. at 474. 19 See note 6, supra. 20 This procedure is dealt with by Thayer, Preliminary Treatise on Evi- dence, 198, and McKechnie, Magna Carta, circ. 102. The latter says that in those days the chief or medial judgment "came before the proof or trial, not after it. It consisted indeed in decreeing whether or not, on the strength of the previous procedure, the defendant should be put to his proof at all; and if so, what 'proof should be demanded. Now, the exact test to be appointed by the court varied somewhat, according to circumstances, but long-established custom had laid down with some exactitude a rule applicable to every case likely to occur; and, further, the possible modes of proof were limited to four or five at the outside. . . . The 'proof,' of whatever kind it might be, thus appointed by the 'judges' for the de- fendant's performance was technically known as a 'law' (Latin lex) in the sense of a 'test' or 'trial' or 'task', according to his success or failure in which his case should stand or fall. . . . The ancient 'trial' was merely a formal test, wliich was, except in the case of battle, entirely one- sided." It consisted simplj' in the performance by the party of the test which had been set for him. Those who gave final sentence were mere umpires. They "could scarcely be said to decide the case, since this had already been practically decided by the success or failure of the party on whom the proof had been laid." THE LAW OF THE LAND. 161 terrae' simply required judicial proceedings according to the nature of the case; the duel, ordeal or compurgation in criminal cases, the duel, witnesses, charters or recogni- tion in property cases." ^^ And there are other authori- ties to the same effect.^" It is possible that the provision for the law of the land referred merely to the particular forms of procedure which were lawful in the year 1215, but there is room for doubt whether it sought to make it impossible to change those forms of procedure.^^ 21 Bigelow, History of Procedure in England, 155, note. 22 See Thayer, Preliminary Treatise on Evidence, 199-201 ; Baldwin, The Courts as Conservators of Social Justice, 9 Col. L. Rev. 567, 571. In Mc- Kechnie, Magna Carta, 437, 441, 442, it is said that Magna Carta "sought the reform of a specific and clearly defined group of abuses. Its main object was to prohibit John from resorting to what is sometimes whimsi- cally known in Scotland as 'Jeddart justice.' It forbade him for the future to place execution before judgment. . . . The Great Charter promised that no plea, civil or criminal, should henceforth be decided against any freeman until he had failed in the customary 'proof — whether battle, or ordeal, or otherwise. . . . The words of John's charter promised a threefold security to all the freemen of England. Their persons and prop- erty were protected from the king's arbitrary will by the rule that execu- tion should be preceded by a judgment— by a judgment of peers — by a judg- ment according to the appropriate time-honored 'test,' battle, compurga- tion, or ordeal." In Eeeves, History of the English Law (in Finlason's ed., II, 43) "per legem terrae" is rendered ''by some other legal process or proceeding adapted by law to the nature of the case." 23 McKeclinie says, "The stress placed on the accused's right to the time- honored forms of lex is well illustrated by the difficulty of substituting jury trial for ordeal. . . . The right of 'standing mute,' that is, vir- tually, of demanding ordeal, was only abolished in 1772. . . . Five and a half centuries were thus allowed to pass before the criminal law wa? bold enough, in defiance of a fundamental principle of Magna Carta, to deprive accused men of their 'law:'" Magna Carta, p. 441, note. But any one who considers how ancient customs are retained long after the reasons for those customs have disappeared, and on this point see Lucy, Diary of the Salisbury Parliament, 196 et seq. ; may well doubt whether there is any force in the contention that the right of standing mute was retained because it was thought that a change would be in violation of Magna Carta. Mc- Kechnie, however, also says that "lex terrae" gradually changed its mean- ing and that this change was reflected in subsequent statutes reaffirming, expanding or explaining Magna Carta: p. 441; see also p. 442. He calls 162 DUE PROCESS CLAUSES— DISCUSSION. "Due process of law" in England. 78. By later statutes a provision for due process of law was gradually substituted for tlie law of the land provi- sion,-^ and in view of the wording of those statutes it attention (p. 208) to the fact that Coke "reads into Magna Carta the entire body of the common law of the seventeenth century," that "the various clauses of Magna Carta are thus merely occasions for expounding the law as it stood, not at the beginning of the thirteenth century, but in his own day." Has the learned author also erred in reading into the Great Charter the law of the thirteenth century? Or can he say that as for that period it is not possible to distinguish between the meaning of the term "the law of the land" and the contents of the law of the land? On the distinction see p. 168, infra. 24 By 9 Hen. Ill, cap. 29, confirmed 25 Edw. I, it was provided that "no freeman shall be arrested or imprisoned or deprived of his freehold or liberties or free customs or be outlawed or banished or in any way molested, and we will not set forth against him nor send against him unless bj' the lawful judgment of his peers and by the law of the land. To no man will we sell or deny or defer right and justice." By 5 Edw. Ill cap. 9, it was "accorded and established, that no man henceforth may be attached by any accusation nor forejudged of life or limb, nor his lands, tenements, goods nor chattels seized into the hands of the king against the form of the Great Charter and the law of the land." By 25 Edw. Ill, stat. 5, cap. 4, it was provided that "whereas it is contained in the Great Charter of the Fran- chises of England that no one may be taken nor imprisoned nor deprived of his freehold nor of his franchises nor his free customs unless it be by the law of the land, it is accorded, assented and established that from henceforth none may be taken by petition or suggestion made to our lord the king or to his council unless it be by indictment or presentment of good and lawful men of the neighborhood where such deeds be done, in due man- ner or by process made upon original writ at the common law; nor shall any one be deprived of his franchises or his freehold unless he be himself placed duly in response and judged of those things by the course of the law; and if anything shall be done to the contrary let it be redressed and held for naught." See also Rot. Pari., II, 239. By 28 Edw. Ill, cap. 3, it was provided that "no man, of whatever estate or condition he may be, may be put out of his land or tenement, nor taken, nor imprisoned, nor dis- inherited nor put to death without being brought in answer by due process of law." By 37 Edw. Ill, cap. 18, it was declared that "though it be con- tained in the Great Charter that no man be taken, nor imprisoned, nor put out of his freehold, without process of the law, nevertheless divers people make false suggestion to the king himself, as well for malice as otherwise, whereof the king is often grieved, and divers of the realm put in damage, against the form of the same charter; wherefore it is ordained THE LAW OF THE LAND. 163 seems clear that the desire related simply to procedure, and it seems that the desire was for the procedure which was lawful at the time of the proceeding. Of course, if there was any difference in meaning between the two pro- visions the provision for due process of law supplanted the provision for the law of the land. The provisions compared. 79. But the two provisions apparently had the same meaning, or, rather, whatever may have been the mean- ing of the law of the land provision when it was placed in Magna Carta, when that provision was supplanted by the due process provision the two clauses were apparently re- garded as synonymous. It is probable that the law of the land provision was understood to be merely a requirement that there should be a procedure which was in accordance with the law of the land and that the due process provision in the later statutes was intended merely as a requirement of a procedure which was made due by the law of the land. Such interpretations are decidedly plausible. And that all they that make suggestions be sent with the suggestions before the chancellor, treasurer and his council, and that they there find surety to pursue their suggestions, and incur the same pain that the other would have had if he were attainted, in case his suggestion be found evil; and that then process of the law be made against them, without being taken or im- prisoned against the form of the said charter and other statutes." And by 42 Edw. Ill, cap. 3, it was declared that "at the request of the commons by their petition set forth in that parliament to do away with the mis- chiefs and damages done to many of the said commons by false accusers who often have made their accusations more for revenge and private gain than for the benefit of the king or of his people, which accused persons have been sometimes taken and at other times made to come before the council of the king by writ or otherwise under grievous pain and against the law, it is assented and accorded for the good government of the commons that no man may be put to answer without presentment before justices or mat- ter of record or by due process and writ original according to the old law of the land, and if anything henceforth be done to the contrary it shall be void in law and held for error." 164 DUE PROCESS CLAUSES— DISCUSSION. the two provisions must be so understood if Coke was jus- tified in declaring that the law of the land provision was to be interpreted (as intervening generations had appar- ently interiDreted it) by the due process provision,^^ and if the Supreme Court is correct in saying that, conversely, the requirement of due process of law is equivalent to the earlier requirement of the law of the land. Those state- ments are correct only if we may say, as the court said in Walker v. Sauvinet,-® that due process of law means the process which is due according to the law of the land. If the meaning of one provision was different from that of the other, if its scope was either broader or narrower, then, of course, one provision may not be interpreted by the other, and, as already pointed out, we must remember that the due process provision supplanted the provision for the law of the land. The term "law of the land" sometimes used in broader sense. 80. Before we consider the position of the court that the due process provision has a more extensive meaning in this country than the provision for the law of the land had in England, we must observe that the term "the law of the land" is sometimes used in the present day in a sense which is broader than that which has just been consid- ered. It is sometimes used as meaning the law of the state or the law of the country and as relating to more than procedure.^'^ 25 Coke, Institutes, II, 50. See also Baldwin, The Courts as Conservators of Social Justice, 9 Col. L. Rev. 567, 571; Corwin, Due Process of Law Be- fore the Civil War, 24 Harv. L. Rev. 369, 371, 372; Reeves, History of the English Law, quoted at end of note 22, supra. Reeves's book was pub- lished before the adoption of the Fifth Amendment. 26 (1875) 92 U. S. 90, 93. 27 For example, in Article VI of the Federal Constitution, where, how- THE LAW OF THE LAND. 165 But while the provision for the law of the land, as that term was used in early times, was quite possibly intended simply as a requirement of what was later called due pro- cess of law, it certainly does not follow that, on the other hand, the provision for due process of law is equivalent to a provision for the law of the land when the latter term is used in its broadest sense— as relating to more than pro- cedure. This point must be carefully borne in mind. Term has same general scope in America as in England. 81. And yet, even if we assume that ''due process of law" means ''the law of the land" in the broadest sen&e of the latter term, we must note that such a requirement would have in general the same effect in this country as it would have in England. Of course, we have in this country a supreme law of the land and when it speaks it must be obeyed by the organ or organs of government to which it speaks. But not all of the law of the jurisdiction is contained in the constitu- tions. This truth is elementary. And that portion of the law of the jurisdiction which is not contained in the con- stitutions is, in this country as in England, changeable by the appropriate authorities, although only the appropri- ate authorities may change or disregard it. How may the "law of the land" be changed? 82. In England the Parliament, subject to a veto power which has not been exercised since 1707,"^ may change the law in any respect,^*^ while the king has not for cen- turies had the power to disregard the law or to change the ever, there is a qualifying adjective which limits its meaning. On the phraseology of this article see Thayer, John Marshall, 64. 28 Anson, The Law and Custom of the Constitution, 3d ed., I, 301. 29 See note 9 in Chapter 2, supra. 166 DUE PROCESS CLAUSES— DISCUSSION. law without the consent of Parliament. ^'^ And in this country the legislative department of government has a power to change the law which is different from the power of a president or governor. The state legislatures, over subject-matters not withdrawn from their control, and Congress over subject-matters entrusted to it, have all governmental powers which are not entrusted by the con- stitutions to other organs of government and which are not withdrawn from the control of those legislative bodies by other provisions of the constitutions, while the execu- tive department of government, on the other hand, pos- sesses only powers which are granted to it by law, and those powers must be exercised in a manner recognized by law.^^ In other words, we have profited by the struggles which our ancestors had with their kings and, by the distribu- tion of governmental powers in our constitutions, we have made it clear that our executives are without power to act contrary to the law and have not that power to change the law which our legislatures do possess. The various departments of government stand in the same relation to each other as regards the law of the state or the law of the country in the United States as they did in England. To say, then, that all parts of the law of the land are equally unchangeable, or to say that that part of the law of the land which is not the supreme law of the land is unchangeable by the legislature because unchangeable by the executive, would be to disregard thoroughly estab- lished distinctions. While other departments of govern- so bhi of Rights (1689); The Case of Captain Streater (1653) 5 How. State Trials, 365, 368. And see Pollock and Maitland, History of English Law, I, 1st ed., 152, 2d ed., 173; Anson, The Law and Custom of the Consti- tution, 3d ed., I, chap. 9, II, pp. 33, 34 ; Lowell, The Government of England, I, 22; 12 Coke, 76 (1611). Compare Lowell, op. cit., I, 23, 24. 31 See authorities cited in sees. 31, 33, 37, supra. THE LAW OF THE LAND. 167 ment are restrained by the law of the land, only that part of the law of the land which the constitution makes the supreme law of the land is unchangeable by legislation."^- The Constitution does not make the * 'law of the land' ' un- changeable. 83. One point more remains to be noticed. It might be claimed that a requirement in a constitution that the law of the land should be observed would require the observ- ance of the law of the jurisdiction as it stood at the time when the provision was placed in the constitution.^^ And in support of that contention it might be said with truth that in interpreting a provision of a constitution it must be given the meaning which it had at the time of its adop- 32 See also Sumpter v. State (1906) 81 Ark. 60, 62, 98 S. W. 719, 720; Mayo V. Wilson (1817) 1 N. H. 53, 57; State v. (1794) 1 Hayw. (N. C.) 28. "Did, then, the phrase, 'law of the land,' which is the xiniversal form in these [early state] constitutions, import any limitation upon leg- islative power? There are three good reasons for thinking not. In the first place, 'the judgment of peers,' signifying in our constitutional usage trial by jury, which is usually alternative to 'law of the land' and therefore apparently displaceable by it, is often further safeguarded by a clause rendering it inviolable in all cases in which it had hitherto been used, a clause to which the members of the legislature were sometimes required to take special oaths of fidelity. In the second place, moreover, if 'law of the land' meant something else than statutory enactment, that something could have been only the common law, which, however, is adopted in these same constitutions, when specific mention is made of it, only until the legisla- ture may choose to alter it. Finally, in the early days of judicial review, a number of cases arose in which the Law of the Land clause would cer- tainly have been brought forward had it been deemed available as a con- stitutional restriction upon legislative power. The argument from silence is often of dubious value, but in a case of this sort it is almost conclu- sive:" Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 370, 371. See also 24 Harv. L. Eev. at 372. 33 Consider Twining v. New Jersey (1908) 211 U. S. 78, 100, 101, 29 Sup. Ct. 14, 20, 53 L. ed. 97; Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 373; note 23, supra; and also Montana Co. v. St. Louis M. & M. Co. (1894) 152 U. S. 160, 168, 14 Sup. Ct. 506, 508, 38 L. ed. 398. 168 DUE PROCESS CLAUSES— DISCUSSION. tion.^* No organ of govemmeiit can change that mean- ing. Such a change can be made only by constitutional amendment. But while the meaning which the term ' ' the law of the land" had when placed in the constitution might not be changed, it certainly does not follow that the contents of the law of the land, except so much of it as is the supreme law of the land, might not be changed by oifdinary legisla- tion. The distinction will be shown best by referring to a case which seems to be analogous. Congi'ess cannot so narrow the meaning of the word ''crimes" in the second clause of Article III of the Federal Constitution as to al- low the infliction of heavy penalties where the gnilt of the person convicted has not been determined by a jury; yet, while it cannot change the meaning of the word ' * crimes, ' ' it can unquestionably increase or diminish the" number of crimes.^^ The Constitution did not crystallize and render unchangeable the criminal law of a hundred and twenty- five years ago. And so also the fact that the meaning of the term ''the law of the land" might not be altered by legislation does not show that the provisions of the law of the land might not be changed in that manner. The "law of the land" may be different in the several states. 84. Moreover, just as the meaning of the due process provision of the Fourteenth Amendment remains the same from year to year, so also it doubtless has the same mean- ing in one state as it has in another.^^ But it does not 34 See authorities cited at beginning of note 11 in Chapter 3, supra. 35 See Schick v. United States (1904) 195 U. S. 65, 24 Sup. Ct. 826, 49 L. ed. 99; and also The Lottawanna (1874) 21 Wall. 558, 576, 22 L. ed. 654. 36 See King v. Mullins (1898) 171 U. S. 404, 422, 18 Sup. Ct. 925, 932, 43 L. ed. 214. THE LAW OF THE LAND. 169 follow from this that the court should hold that the pro- vision has the same ultimate legal effect in all states, or, in other words, that a procedure which must be observed in one state in order to afford due process of law there must be observed in another state in order to afford due process of law in the latter state. Just as, as previously pointed out, there may be changes in the law from time to time, so also it seems clear that the court has decided correctly when it has held that the law may be different in different states.^^ Judicial alteration of the "law of the land." 85. The statements which have just been made as to the alterability of the law of the land may seem to be inconsis- tent with the decision in Twining v. New Jersey,^^ one of the few cases in the United States Supreme Court in which the proposition that the due process provision is equivalent to the provision for the law of the land has been expressly made the basis of the decision,^^ and appar- ently the only recent one of those cases. In that case the court hovered around the thought that the procedure which existed when the due process clause was adopted has some bearing upon the constitutionality of procedure to-day,^** and while the court conceded that the early pro- 37 See Walker v. Sauvinet (1875) 92 U. S. 90, 93, 23 L. ed. 678; Missouri V. Lewis (1879) 101 U. S. 22, 31, 25 L. ed. 989; Sauer v. New York (1907) 206 U. S. 536, 548, 27 Sup. Ct. 686, 690, 51 L. ed. 1176. 38 (1908) 211 U. S. 78, 29 Sup. Ct. 14, 53 L. ed. 97. 39 211 U. S. at 100, 106, 108, 29 Sup. Ct. at 20, 22, 23, 53 L. ed. 107. 40 It said that "WTiat is due process of law may be ascertained by an ex- amination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country:" 211 U. S. at 100, 29 Sup. Ct. at 20, 53 L. ed. at 107. (Compare 24 Harv. L. Rev. 373; 21 Harv. L. Rev. 495, 496, 497.) But the court, instead of stand- 170 DUE PROCESS CLAUSES— DISCUSSION. cedure is subject to some changes,^ ^ it said that ''consis- tently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government. ' ' ^^ But we must note that in that case, which involved sim- ply the constitutionality of the decision of a state court upon a question of evidence and in which that decision was sustained, it was not shown that the state court had power to make material alterations in the law of the land as it existed at the time of the adoption of the due process provision or that that law had been changed by legislation or by amendment of the state constitution. For that rea- son an inquiry into the requirements of the law of the land as it stood at the time of the adoption of the due process provision was entirely proper.^^ And although this point was not brought out by the court, it marks the ing squarely on the proposition that the due process clause requires the observance of the particular procedure which was in accordance with the law of the land at the moment when the due process clause was placed in the Constitution, then marked the limits of the statement which it had just made by restating it in the following quotation from Hurtado v. Cali- fornia (1884) 110 U. S. 516, 528, 4 Sup. Ct. Ill, 292, 117, 28 L. ed. 232, " 'A process of law, . . . which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and this country:'" 211 U. S. at 101, 29 Sup. Ct. at 20, 53 L. ed. at 107. 41 "It does not follow, however, that a procedure settled in English law at the time of the emigration, and brought to this country and practiced by our ancestors, is an essential element of due process of law. If that were so the procedure of the first half of the seventeenth century would be fastened upon the American jurisprudence like a straight jacket, only to be unloosed by constitutional amendment:" 211 U. S. at 101, 29 Sup. Ct. at 20, 53 L. ed. at 107. See also cases there cited. 42 211 U. S. at 101, 29 Sup. Ct. at 20, 53 L. ed. at 107. 43 See p. 105, supra. ARGUMENT CONCERNING REDUNDANCY. 171 extent to which the decision may be relied upon in the in- terpretation of the provision for due process of law. It will be necessary later in this chapter to refer more fully to the expressions of the court which have just been quoted and to other expressions in that opinion.^^ They involve questions which require extended treatment. But it seems desirable, before doing so, to consider one other argument which might be advanced in support of the pro- position that the due process clauses restrain Congress and the state legislatures and which may be examined more briefly. THE ARGUMENT CONCERNING REDUNDANCY. The question stated. 86. The Constitution does not declare what constitutes a ' ' due ' ' process. Yet, reading the words in their natural sense, it seems clear that it means simply the process which the person involved is entitled to receive. The pro- vision does not say that there must be a suitable process or a desirable process. It does not purport to create any new rights. It simply says that the person involved shall receive the process which is due to him. The dueness of the process is left to depend upon tests which are extrinsic to that provision of the Constitution. Now, if it were held that ' ' due process of law is process due according to the law of the land" ^^ and that so much of the law of the land as is not contained in the Constitu- tion may be changed by the appropriate authorities,^*^ the provision would be superfluous in the Fifth Amendment, 44 See sees. 92, 97, infra. 45 Walker v. Sauvinet (1875) 92 U. S. 90, 93, 23 L. ed. 678. 46 See sees. 31, 33, supra, 97, infra. 172 DUE PROCESS CLAUSES— DISCUSSION. although, for reasons which will be pointed out, it would not be superfluous in the Fourteenth Amendment. And it may be urged that an interpretation of a clause of the Constitution under which that clause must be considered useless is necessarily unsound and that, therefore, the pro- vision must have some other meaning. '^b' The question elaborated. 87. If the due process clause of the Fifth Amendment were held to require merely that the procedure followed when a person is deprived of life, liberty or property must be that procedure which has been prescribed by the gov- ernmental organ which has authority to prescribe the pro- cedure, the clause would be unnecessary, since the same restraint is contained in those clauses of the Constitution which distribute governmental powers among three de- partments of government. The due process clause of the Fifth Amendment would still be superfluous even though it were held to require also that the procedure do not violate procedural rights which are secured by other provisions of the Federal Con- stitution; and so also would the clause in the Fourteenth Amendment be superfluous if it referred merely to those procedural rights which are secured by other provisions of the Federal Constitution, such as the prohibition of bills of attainder and the full faith and credit clause. The due process clause of the latter Amendment could not be regarded as superfluous if it were held to include in its protection procedural rights secured by the respec- tive state constitutions or by statutes or subordinate regu- lations*''' in those states, inasmuch as questions of com- pliance with the procedural requirements would thus be 47 As rules of court, ordinances, administrative regulations. ARGUMENT CONCERNING REDUNDANCY. 173 made federal questions. But, as a matter of fact, the United States Supreme Court in cases coming from state courts does not inquire whether the action of an organ of state government conforms to the procedural require- ments of the state constitution ^^ or to other valid proced- ural restraints upon the organs of government;'*^ and in cases arising in federal courts those courts follow the in- terpretations which have been given to the state constitu- tions and the state statutes by the state courts.^" Now, unless the United States Supreme Court has de- cided incorrectly when it declared that the Fourteenth Amendment "did not radically change the whole theory of the relations of the state and federal governments to each other, and of both governments to the people," ^^ the federal courts unquestionably ought, as a general rule, to 48 See note 45 in Chapter 3, supra. 49 See note 46 in Chapter 3, supra. 50 See note 47 in Chapter 3, supra. 51 Felts V. Murphy (1906) 201 U. S. 123, 129, 26 Sup. Ct. 366, 368, 50 L. ed. 689; Orr v. Gilman (1902) 183 U. S. 278, 286, 22 Sup. Ct. 213, 216, 46 L. ed. 213; Maxwell v. Dow (1900) 176 U. S. 581, 593, 20 Sup. Ct. 448, 494, 453, 44 L. ed. 597; McPherson v. Blacker (1892) 146 U. S. 1, 39, 13 Sup. Ct. 3, 12, 36 L. ed. 869; In re Kemmler (1890) 136 U. S. 436, 448, 10 Sup. Ct. 930, 934, 34 L. ed. 519. See also Slaughter House Cases (1872) 16 Wall. 36, 78, 21 L. ed. 394; Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 157, 17 Sup. Ct. 56, 62, 41 L. ed. 369; Giozza v. Tiernan (1893) 148 U. S. 657, 662, 13 Sup. Ct. 721, 723, 37 L. ed. 599; Davidson v. New Orleans (1877) 96 U. S. 97, 103, 104, 24 L. ed. 616; Hodges v. United States (1906) 203 U. S. 1, 16, 27 Sup. Ct. 6, 8, 51 L. ed. 65; Robertson v. Bald- win (1897) 165 U. S. 275, 281, 17 Sup. Ct. 326, 329, 41 L. ed. 715; the quotation of Providence Bk. v. Billings (1830) 4 Pet. 514, 563, 7 L. ed. 939, with apparent approval in Michigan C. R. Co. v. Powers (1906) 201 U. S. 245, 296, 26 Sup. Ct. 459, 463, 50 L. ed. 744; and the language of Holmes, J., in Interstate C. S. Ry. Co. v. Commonwealth (1907) 207 U. S. 79, 87, 28 Sup. Ct. 26, 28, 52 L. ed. Ill; Otis Co. v. Ludlow M. Co. (1906) 201 U. S. 140, 154, 26 Sup. Ct. 353, 355, 50 L. ed. 696; Paddell v. City of New York (1908) 211 U. S. 446, 448, 29 Sup. Ct. 139, 53 L. ed. 275; Laurel Hill Cemetery v. San Francisco (1910) 216 U. S. 358, 366, 30 Sup. Ct. 301, 302, 54 L. ed. 515. Compare 32 Am. L. Reg. N. S. 1096, 1097. 174 DUE PROCESS CLAUSES— DISCUSSION. follow the decisions of state courts in matters of state law. But, in view of tlie due process clause, it is quite possible that they would be justified in going so far as to inquire into the observance of procedural requirements; and the failure of the federal courts to make such inquiries may be due to the fact that they have never considered suffi- ciently the propriety of doing so.^^ Still, under any of the interpretations of the due pro- cess provision which have just been suggested, the clause in the Fifth Amendment must be regarded as superfluous. Discussion of question of redundancy. 88. But it is not self-evident that there can be no repe- tition of thought in the Constitution, and while the fact that under a particular interpretation a provision of the Constitution would be superfluous is entitled to weight,^^ it is not sufficient to prove that that interpretation is in- correct. Certainly if the provision had that meaning be- fore it was placed in the Constitution, or if there is a suffi- cient explanation of its insertion, although superfluous, in 52 Professor Henry Schofield, in 3 111. L. Rev. 195, contends that the United States Supreme Court should inquire whether state courts clearly disregard or misapply the laws of their respective states. He does not, how- ever, limit his contention to laws dealing with procedure. See latter part of note 47 in Chapter 3, supra, on the position of the Supreme Court on this question. SSHurtado v. California (1884) 110 U. S. 51G, 534, 4 Sup. Ct. Ill, 292, 120, 28 L. ed. 232; Marbury v. Madison (1803) 1 Cranch, 137, 174, 2 L. ed. 60. See also Davidson v. New Orleans (1877) 96 U. S. 97, 105, 24 L. ed. 616; Twining v. New Jersey (1908) 211 U. S. 78, 110, 29 Sup. Ct. 14, 24, 53 L. ed. 97; Mackin v. United States ( 1886) 117 U. S. 348, 351, 352, 6 Sup. Ct. 777, 778, 779, 29 L. ed. 909; Minor v. Happersett (1874) 21 Wall. 162, 175, 22 L. ed. 627; In re Kemmler (1890) 136 U. S. 436, 448, 10 Sup. Ct. 930, 934, 34 L. ed. 519; HalHnger v. Davis (1892) 146 U. S. 314, 323, 13 Sup. Ct. 105, 108, 36 L. ed. 986; 4 Harv. L. Rev. at 381; Western U. T. Co. V. Railroad Comn. of La. (1908) 120 La. 758, 45 So. 598. Compare Yesler v. Washington H. L. Comrs. (1892) 146 U. S. 646, 655, 13 Sup. Ct. 190, 194, 36 L. ed. 1119. AUGUMENT CONCERNING EEDUNDANCY. 175 the Constitution, or if a different interpretation would require an exercise by the courts of a power which was not granted to them by the Constitution— such circum- stances must outweigh any argument concerning redund- ancy. The due process provision did not make its first appear- ance in the Fifth Amendment.^^ It had an English origin. The meaning which the provision possessed before it was placed in the Federal Constitution may properly be con- sidered by the court; and for that reason when the court declared in Walker v. Sauvinet^" that ''due process of law is process due according to the law of the land" its statement is plausible, and that statement must be ac- cepted unless it can be shown to be incorrect or unless the validity of some different statement can be established. The provision occurs in the Federal Constitution ap- parently as a survival from earlier times. Those who adopted the Fifth Amendment probably did not realize when they placed the due process provision in the Consti- tution that those clauses of the Constitution which dis- tribute governmental powers among three departments of government by necessary implication provide that the procedure followed must be one which has been prescribed by the governmental organ which has authority to pre- scribe the procedure and that it was unnecessary for them to follow precedent and insert the same restraint also in the form in which it appeared in the English constitution. Or they may have desired, even at the expense of repeti- tion, to make this restraint perfectly clear, through fear that there might some day come into power a president who would not have a scrupulous regard for the constitu- tional limitations upon his authority. 54 See note 24, supra. 55 (1875) 92 U. S. 90, 93, 23 L. ed. 678. 176 DUE PROCESS CLAUSES— DISCUSSION. And, finally, there is no other natural meaning of the words "due process of law" than 'Hhe process to which the person involved is entitled under the law of the land. ' ' The Constitution simply says that he shall receive the pro- cess which is due to him. There is nothing in the pro- vision to show that those who adopted the Fifth Amend- ment intended to create any other test of dueness than that which would have existed if the provision had never been placed in the Constitution. There is nothing in the Constitution which so perpetuates the law of the land as it existed when the provision was adopted as to interfere with its alteration by the appropriate authorities.^^ And for the courts to declare tests of dueness which are not authorized by the Federal Constitution is to exercise a veto-power which it was never intended that they should exercise,^'^ and is judicial usurpation of the most serious character.^ ^ DISCRIMINATION. Position of court on discriminatory state action. 89. In a case in which no objection was made to the method of adoption or enforcement of an ordinance sus- tained by state authority, the court of last resort has de- clared that, under the due process clause of the Four- teenth Amendment, the discriminatory character of the ordinance was an objection to its validity.^^ In a case in 56 See sees. 31, 33, supra, 97, infra. 57 See authorities cited in note 13, supra. 58 For instance of comments by recent writers see Boudin, Government by Judiciary, 26 Pol. Sci. Quar. 238, 264, 266, 267 et seq. 59 Dobbins v. Los Angeles (1904) 195 U. S. 223, 25 Sup. Ct. 18, 49 L. ed. 169. The city had fixed limits within which gas works might be built. An individual had promptly bought land within that district, secured a permit and spent thousands of dollars on the erection of a plant. Shortly there- DISCRIMINATION. 177 which a state board discriminated in the assessment of taxes upon property of the same class, the action of the state board was also held to be in violation of the Four- teenth Amendment.^" And the court has declared that ar- bitrary exercises of the power of a state over an individ- ual would violate the due process requirement, apparently using the word ''arbitrary," in some instances, at least, as meaning "not in accordance with fixed rules," ^^ al- after the city so changed the limits as to exclude the new structure from the privileged district. The state court upheld the latter ordinance, but the court of last resort reversed that judgment, saying that where an ordinance oppresses or discriminates against a class or an individual the courts may consider the purpose of the ordinance. "We think the allegations of the bill disclose such character of territory, such, sudden and unexplained change of its limits after the plaintiff in error had purchased the property and gone forward with the erection of the works, as to bring it within that class of cases wherein the court may restrain the arbitrary and discrimina- tory exercise of the police power which amounts to a taking of property without due process of law and an impairment of property rights protected by the Fourteenth Amendment:" 195 U. S. 240, 241, 25 Sup. Ct. 22, 49 L. ed. 177. Compare Patterson v. Colorado (1907) 205 U. S. 454, 461, 27 Sup. Ct. 556, 557, 51 L. ed. 879; Yick Wo v. Hopkins (1886) 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. ed. 220, cited in Dobbins v. Los Angeles, was decided under the equal protection provision. 60 Raymond v. Chicago U. T. Co. (1907) 207 U. S. 20, 28 Sup. Ct. 7, 52 L. ed. 78. The court speaks of both the due process and the equal protec- tion provision of the Fourteenth Amendment, so that it is not entirely clear under which clause the court held the action of the state board to be un- constitutional; but the opinion may be read in the light of the dissenting opinion, which refers only to the due process provision. — On the bearing of the due process clause on discrimination, see also Hibben v. Smith (1903) 191 U. S. 310, 326, 24 Sup. Ct. 88, 92, 48 L. ed. 195; Lake S. & M. S. Ry. Co. V. Smith (1899) 173 U. S. 684, 691, 19 Sup. Ct. 565, 568, 43 L. ed. 858; Eldridge v. Trezevant (1896) 100 U. S. 452, 468, 16 Sup. Ct. 345, 349, 40 L. ed. 490; Marchant v. Pennsylvania R. Co. (1894) 153 U. S. 380, 386, 14 Sup. Ct. 894, 896, 38 L. ed. 751; In re Converse (1891) 137 U. S. 624, 632, 11 Sup. Ct. 191, 193, 34 L. ed. 796; In re Kemmler (1890) 136 U. S. 436, 448, 449, 10 Sup. Ct. 930, 934, 34 L. ed. 519; Hurtado v. California (1884) 110 U. S. 516, 535, 4 Sup. Ct. Ill, 292, 121, 28 L. ed. 232; Bacon v. Walker (1907) 204 U. S. 311, 27 Sup. Ct. 289, 51 L. ed. 499; New York ex rel. Hatch v. Reardon (1907) 204 U. S. 152, 27 Sup. Ct. 188, 51 L. ed. 415; People v. Van de Carr (1905) 199 U. S. 552, 26 Sup. Ct. 144, 50 L. ed. 305. 61 See Twining v. New Jersey (1908) 211 U. S. 78, 111, 113, 29 Sup. Ct. 178 DUE PROCESS CLAUSES— DISCUSSION. though the court concedes that such fixed rules may be limited in their scope, saying that *'If an evil is specially experienced in a particular branch of business, the Con- stitution embodies no prohibition of laws confined to the evil, or doctrinaire requirement that they should be couched in all-embracing terms. It does not forbid the cautious advance, step by step, and the distrust of gener- alities which sometimes have been the weakness, but often the strength, of English legislation. ' ' ^^ Position of court on fraud and improper motives. 90. Possibly it is on the same or a similar ground that the court has suggested that a deprivation of property by an administrative authority would be without due process 14, 25, 53 L. ed. 97; Dobbins v. Los Angeles (1904) 195 U. S. 223, 241, 25 Sup. Ct. 18, 22, 49 L. ed. 169; People v. Van de Carr (1905) 199 U. S. 552, 558, 560, 26 Sup. Ct. 144, 145, 146, 50 L. ed. 305 ; Jacobson v. Massa- chusetts (1905) 197 U. S. 11, 28, 25 Sup. Ct. 358, 362, 49 L. ed. 643; Hib- ben V. Smith (1903) 191 U. S. 310, 325, 24 Sup. Ct. 88, 92, 48 L. ed. 195; Hodgson V. Vermont (1897) 168 U. S. 262, 272, 18 Sup. Ct. 80, 83, 42 L. ed. 461; Giozza v. Tiernan (1893) 148 U. S. 657, 662, 13 Sup. Ct. 721, 724, 37 L. ed. 599; Leeper v. Texas (1891) 139 U. S. 462, 468, 11 Sup. Ct. 577, 579, 35 L. ed. 225; Caldwell v. Texas (1891) 137 U. S. 692, 697, 698, 11 Sup. Ct. 224, 226, 34 L. ed. 816; In re Converse (1891) 137 U. S. 624, 631, 632, 11 Sup. Ct. 191, 193, 34 L. ed. 796; Dent v. West Virginia (1889) 129 U. S. 114, 123, 124, 9 Sup. Ct. 231, 234, 32 L. ed. 623; Hurtado v. Cali- fornia (1884) 110 U. S. 516, 536, 4 Sup. Ct. Ill, 292, 121, 28 L. ed. 232; and also Quong Wing v. Kirkendall (1912) 223 U. S. 59, 62, 32 Sup. Ct. 192, 193, 56 L. ed. 350; Kentucky U. Co. v. Kentucky (1911) 219 U. S. 140, 161, 31 Sup. Ct. 171, 180, 55 L. ed. 137; Bacon v. Walker (1907) 204 U. S. 311, 27 Sup. Ct. 289, 51 L. ed. 499; Missouri P. Ry. Co. v. Humes (1885) 115 U. S. 512, 519, 6 Sup. Ct. 110, 112, 29 L. ed. 463; dissenting opinion in Fong Yue Ting v. United States (1893) 149 U. S. 698, 763, 13 Sup. Ct. 1016, 1041, 37 L. ed. 905; 24 Harv. L. Rev. 476, note.— On the word "arbitrary" as used in another sense, see sees. 105, 116, 117, infra. 02 Carroll v. Greenwich I. Co. (1905) 199 U. S. 401, 411, 26 Sup. Ct. 66, 67, 50 L. ed. 246. See also Lindsley v. Natural C. G. Co. ( 1911 ) 220 U. S. 61, 81, 31 Sup. Ct. 337, 341, 55 L. ed. 369; Sperry & Hutchinson Co. v. Rhodes (1911) 220 U. S. 502, 505, 31 Sup. Ct. 490, 491, 55 L. ed. 561; Johnson v. United States (1913) 228 U. S. 457, 458, 33 Sup. Ct. 572, 57 L. ed. 919. DISCRIMINATION. 179 of law if it were the result of fraud.^^ The court has, how- ever, declared that it cannot inquire whether a legislature acted corruptly.^^ ''The decisions of this court from the 63 For declarations on the finality of administrative decisions in tlie absence of fraud see Chicago, B. & Q. Ry. Co. v. Babcock (1907) 204 U. S. 585, 598, 27 Sup. Ct. 326, 329, 51 L. ed. 636; People v. New Y. S. B. of T. Comrs. (1905) 199 U. S. 48, 52, 25 Sup. Ct. 713, 715, 50 L. ed. 79; Field V. Barber A. P. Co. (1904) 194 U. S. 618, 624, 625, 24 Sup. Ct. 784, 787, 48 L. ed. 1142; San Diego L. & T. Co. v. Jasper (1903) 189 U. S. 439, 441, 23 Sup. Ct. 571, 572, 47 L. ed. 892 (where water rates were involved); Louisville & N. R. Co. v. Kentucky (1902) 183 U. S. 503, 515, 516, 22 Sup. Ct. 95, 100, 46 L. ed. 298; Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 168, 169, 17 Sup. Ct. 56, 66, 67, 41 L. ed. 369; Pittsburgh, C, C. & St. L. Ry. Co. V. Backus (1894) 154 U. S. 421, 434, 14 Sup. Ct. 1114, 1120, 38 L. ed. 1031; and also Coulter v. Louisville & N. R. Co. (1905) 196 U. S. 599, 25 Sup. Ct. 342, 49 L. ed. 615; City of Seattle v. Kelleher (1904) 195 U. S. 351, 359, 25 Sup. Ct. 44, 45, 49 L. ed. 232 ; California R. Co. v. Sanitary R. Works (1905) 199 U. S. 306, 320, 26 Sup. Ct. 100, 104, 50 L. ed. 204; Adams Ex. Co. V. Ohio (1897) 165 U. S. 194, 229, 17 Sup. Ct. 305, 312, 41 L. ed. 683; United States v. California & O. L. Co. (1893) 148 U. S. 31, 43, 13 Sup. Ct. 458, 463, 37 L. ed. 354. In Dobbins v. Los Angeles (1904) 195 U. S. 223, 240, 25 Sup. Ct. 18, 22, 49 L. ed. 169, the court said, "Whether, when it appears that the facts would authorize the exercise of the power, the courts will restrain its exercise because of alleged wrongful motives inducing the passage of an ordinance is not a question necessary to be determined in this case, but where the facts as to the situation and conditions are such as to establish the exercise of the police power in such manner as to oppress or discriminate against a class or an individual the courts may consider and give weight to such purpose in considering the validity of the ordinance." See also Henderson B. Co. v. Henderson City (1899) 173 U. S. 592, 614, 616, 19 Sup. Ct. 553, 562, 43 L. ed. 823; Backus v. Fort S. U. D. Co. (1898) 169 U. S. 557, 576, 18 Sup. Ct. 445, 452, 42 L. ed. 853; Vicksburg v. Vicks- burg W. Co. (1907) 206 U. S. 498, 27 Sup. Ct. 762, 51 L. ed. 1155; quota- tions in French v. Barber A. P. Co. (1901) 181 U. S. 324, 336, 337, 340, 21 Sup. Ct. 625, 629, 630, 631, 45 L. ed. 879; latter part of note 64, infra. With cases in this note compare Spring V. W. v. San Francisco (1903) 124 Fed. 574, 584-588. 64 This was asserted in Angle v. Chicago, St. P., M. & 0. Ry. Co. (1894) 151 U. S. 1, 18, 14 Sup. Ct. 240, 247, 38 L. ed. 55, where, however, no refer- ence was made to the due process provision, and in concurring opinion in Taylor and Marshall v. Beckham (1900) 178 U. S. 548, 585, 20 Sup. Ct. 890, 1009, 903, 44 L. ed. 1187, where the due process clause was directly involved. See also Calder v. Michigan (1910) 218 U. S. 591, 598, 31 Sup, Ct. 122, 123, 54 L. ed. 1163; United States v. Des Moines N. & Ry. Co. (1892) 142 U. S. 510, 545, 12 Sup. Ct. 308, 318, 35 L. ed. 1099; United 180 DUE PROCESS CLAUSES— DISCUSSION. beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or mo- tive has caused the power to be exerted. . . . No case can be found announcing such a doctrine, and on the contrary the doctrine of a number of cases is inconsistent with its existence. ' ' ^^ Discussion. 91. On the other hand, the court has declared once or twice that Congress is not forbidden by the Constitution to enact discriminatory legislation.^^ Now, as the due States V. Old Settlers (1893) 148 U. S. 427, 466, 13 Sup. Ct. 650, 666, 37 L. ed. 509; The Chinese Exclusion Case (1889) 130 U. S. 581, 603, 9 Sup. Ct. 623, 629, 32 L. ed. 1068; Soon Hing v. Crowley (1885) 113 U. S. 703, 711, 5 Sup. Ct. 730, 734, 28 L. ed. 1145; 6 A. & E. Enc. of L., 2d ed., 1087; Wigmore on Evidence, p. 1656; Sutherland, Statutory Construction, sec. 84; Cooley, Constitutional Limitations, 7th ed., p. 258; Dillon, Municipal Corporations, 5th ed., p. 1157; Willoughby on the Constitution, p. 18; Polk V. Mutual R. F. L. Assn. (1907) 207 U. S. 310, 326, 28 Sup. Ct. 65, 71, 52 L. ed. 222; Red "C" O. Co. v. Board of Agriculture (1912) 222 U. S. 380, 392, 32 Sup. Ct. 152, 154, 56 L. ed. 240; Hammond P. Co. v. Arkansas (1909) 212 U. S. 322, 343, 29 Sup. Ct. 370, 377, 53 L. ed. 530; Ellis v. United States (1907) 206 U. S. 246, 256, 27 Sup. Ct. 600, 601, 51 L. ed. 1047; separate opinion of Taney, C. J., in License Cases (1847) 5 How. 504, 583, 12 L. ed. 256. Compare Dillon, Municipal Corporations, 5th ed., pp. 1157, 1158; and also the case of Lochner v. New York (1905) 198 U. S. 45, 63, 25 Sup. Ct. 539, 545, 49 L. ed. 937, where the motive of the legislature is considered, although fraud is not charged, and the comments on this case in Green Bag, 1905, p. 414. — On proving improper motives see Coulter v. Louisville & N. R. Co. (1905) 196 U. S. 599, 610, 25 Sup. Ct. 342, 345, 49 L. ed. 615, and Soon Hing v. Crowley (1885) 113 U. S. 703, 711, 5 Sup. Ct. 730, 734, 28 L. ed. 1145, which arose under the equal protection pro- vision; and see Fayerweather v. Ritch (1904) 195 U. S. 276, 307, 26 Sup. Ct. 58, 67, 68, 49 L. ed. 193; Chicago, B. & Q. R. Co. v. Babcock (1907) 204 U. S. 585, 593, 27 Sup. Ct. 326, 327, 51 L. ed. 636, on proving the reasons for a decision. 65McCray v. United States (1904) 195 U. S. 27, 56, 24 Sup. Ct. 769, 776, 49 L. ed. 78. 66 United States v. Delaware & H. Co. (1909) 213 U. S. 366, 417, 29 Sup. Ct. 527, 539, 53 L. ed. 836. See also District of Columbia v. Brooke (1909) DISCRIMINATION. 181 process clause of the Fifth Amendment applies to Con- gress,^^ and as we may assume that that clause has in general the same meaning as the due process clause of the Fourteenth Amendment,''^ these statements seem to be in- consistent with the other decisions which we have con- sidered under this topic. In the effort to harmonize the statements it may be said with truth that in deciding cases which arose under the Fourteenth Amendment the court has not always been careful to specify the provision of the Fourteenth Amend- ment under which the case was decided ; that the court has in some respects regarded the due process provision and the equal protection provision as almost interchangeable ; and it may, therefore, be thought that the decisions may be harmonized by saying that discriminatory govern- mental action is forbidden by the equal protection provi- sion rather than by the due process provision. There is some force in this explanation of the decisions, but it is not sufficient. The decisions are also probably based in large measure upon an interpretation of the due process provision which if correct should apply to both the state and the federal governments. It may be said that the provision for due process of law is equivalent to a pro- vision for the law of the land, that the law of the land must be a law which applies uniformly throughout the entire land, and that, therefore, discriminatory governmental action must be in violation of the due process provision.^^ 214 U. S. 138, 149, 29 Sup. Ct. 560, 563, 53 L. ed. 941. Compare 13 Law Notes, 81, with 43 Am. L. Rev. 926. 67 See note 1 in Chapter 3, supra. 68 See note 6 in Chapter 3, supra. 69 See argument of counsel in Dartmouth College v. Woodward (1819) 4 Wheat. 518, 581, 4 L. ed. 629; McGehee, Due Process of Law, 60, 61; Cor- win, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 382, 383; Freund, Police Power, pp. 632, 633. 182 DUE PROCESS CLAUSES— DISCUSSION. The weakness of such a contention lies simply in the fact that it has not been shown that for a law to be the law of the land it must apply uniformly throughout the jurisdic- tion."^^ And, of course, until that is shown the court is not justified in declaring governmental action unconstitu- tional upon any such ground. Thus far the court has not applied to legislation the principle that governmental action which is discrimina- tory violates the due process provision. And while we have seen strong reasons for doubting whether that pro- vision forbids such action by an administrative body, such action may at times be held illegal or unconstitutional upon other grounds. It may be illegal because inconsis- tent with legislation, or if based upon a broad grant of dis- cretion that grant of discretion may be unconstitutional because it constitutes a delegation of legislative power. But we are now considering simply the question whether discriminatory governmental action is forbidden by the due process provision, and there does not seem to be a sufficient justification for saying that the court should hold that such action is forbidden by the requirement of due process of law. CONSTITUTIONAL AND EXTRA-CONSTITUTIONAL RE- STRAINTS. Inconsistent positions taken. 92. In deciding cases which arose under the due pro- cess clauses the Supreme Court has at different times taken two positions concerning the powers of government 70 See argument on "lex terrae" in State v. (1794) I Hayw. (N. C.) 28, 32; Corwin, ubi supra, 24 Harv. L. Rev. at 476, note; Missouri v. Lewis (1879) 101 U. S. 22, 31, 32, 25 L. ed. 989; note 20 in Chapter 2, supra; note 17 in Chapter 5, infra. EXTRA-CONSTITUTIONAL RESTRAINTS. 183 which are unquestionably inconsistent with each other. According to one position the state legislatures over sub- ject-matters not withdrawn from their control, and Con- gress over subject-matters entrusted to it, have all gov- ernmental powers which are not entrusted by the constitu- tions to other organs of government and which are not withdrawn from the control of those legislative bodies by other provisions of the constitutions. This position is supported by the vast weight of direct authority. We have already noted a number of the authorities,''^^ and we shall soon note further authorities in its support. According to the other position, there are restraints which, although not contained in the constitutions, apply to all organs of government, there are rights which, al- though not supported by the constitutions, no organ of government may violate; and those restraints, or those rights, are to be ascertained by judicial action. That po- sition is expressed in several ways, so that it will be nec- essary for us to observe the decisions and dicta under sev- eral heads, but there is the common thought which under- lies those several lines of cases that there are fundamental rights, inalienable rights, which have an existence inde- pendent of any provision of the constitutions but which the courts may recognize and may compel all organs of government to observe. That thought furnishes the real basis of some of the decisions in cases which arise under the due process provision. As we have already said, those two positions are un- questionably inconsistent with each other. And yet the court has given such inadequate attention to their incon- sistency that each position has been expressed by the Su- preme Court frequently, and in several cases, of which ' 231 dicta in which no reference was made to the due process clause as a basis for the statement.^^^ It was apparently made because of the existence of a just compensation pro- vision in the Fifth Amendment, which, of course, is not a restraint upon state action, or because of the existence of just compensation provisions in state constitutions, provisions with which the Supreme Court cannot properly concern itself in cases coming from state courts.^ ^^ Chicago, M. & St. P. Ry. Co. v. Minnesota. 121. Then followed a case under the due process clause in which it was held that a non-judicial body cannot limit the charges of railroads to an unreasonable extent. ^®^ 414; but in the latter case the Supreme Court does not quote any of the language cited in the Norwood case, it does not quote all of the language cited in the Toledo case, and its approval is of a portion of the language actually quoted which relates strictly to procedure. 163 Justice Field, who subsequently declared in a dissenting opinion in O'Neil V. Vermont (1892) 144 U. S. 323, 363, 12 Sup. Ct. 693, 708, 36 L. ed. 450, that the states may not abridge rights of person which the first eight Amendments protect against infringement by the federal government, de- clared in a dissenting opinion in Spring V. W. v. Schottler (1884) 110 U. S. 347, 377, 4 Sup. Ct. 48, 63, 28 L. ed. 173, a case coming from a state court, that a state may not take private property without just compensation. See also Munn v. Illinois (1876) 94 U. S. 113, 145, 24 L. ed. 77. In Stone v. Farmers' L. & T. Co. (1886) 116 U. S. 307, 331, 6 Sup. Ct. 334, 345, 29 L. ed. 636, Waite, C. J., declared in a dictiun that a state may not so take private property. This dictiun was cited in dicta in Dow v. Beidelman (1888) 125 U. S. 680, 689, 8 Sup. Ct. 1028, 1030, 31 L. ed. 841; Georgia R. & B. Co. V. Smith (1888) 128 U. S. 174, 179, 9 Sup. Ct. 47, 48, 32 L. ed. 377; Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 456, 10 Sup. Ct. 462, 466, 33 L. ed. 970 (see also dissenting opinion, 134 U. S. 465, 10 Sup. Ct. 705, 33 L. ed. 984) ; Budd v. New York (1892) 143 U. S. 517, 547, 12 Sup. Ct. 468, 477, 33 L. ed. 247. Compare Corwin, The Supreme Court and the Fourteenth Amendment, 7 Mich. L. Rev. 643, 658; Smalley, Railroad Rat« Control (Publications of the American Economic Assn.) 25 et seq. 164 See notes 45, 47 in Chapter 3, supra. 165 Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. ed. 970. The court rested its decision almost en- 232 DUE PROCESS CLAUSES— DISCUSSION. The decision related to the method of regulating railroad rates. This case has been cited in some later opinions in company with cases to which we have already referred which contained dicta on just compensation. In some instances the phrases ''reasonable rates" and ''just com- pensation" are intermingled in the same opinions.^ '^^ tirely on the matter of procedure, although it did make a brief reference to the equal protection provision. See also Ex parte Young (1908) 209 U. S. 123, 147, 148, 166, 28 Sup. Ct. 441, 448, 449, 456, 52 L. ed. 714, 13 L. E. A. N. S. 932, 942, 950; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 397, 14 Sup. Ct. 1047, 1054, 38 L. ed. 1014; Missouri P. Ry. Co. v. Tucker (1913) 230 U. S. 340, 33 Sup. Ct. 961, 57 L. ed. 1507, and comments on po- sitions taken in these cases expressed in section 60, supra; authorities cited in note 16 of Chapter 2, supra; note 150 of Chapter 4, supra; and Smalley, Railroad Rate Control (Publications of the American Economic Assn.) 25, 32 et seq., 119, 120; Corwin, The Supreme Court and the Fourteenth Amend- ment, 7 Mich. L. Rev. 643, 660, 661; sections 111, 112, supra. On the method followed by the commission in C, M. & St. P. Ry. Co. v. Minnesota see Chi- cago, B. & Q. Ry. Co. V. Babeock (1907) 204 U. S. 585, 598, 27 Sup. Ct. 326, 329, 51 L. ed. 636, quoted in note 149, supra; Home T. & T. Co. v. Los An- geles (1908) 211 U. S. 265, 278, 29 Sup. Ct. 50, 54, 53 L. ed. 176, quoted in note 51 of Chapter 3, supra; and also Chesapeake & P. T. Co. v. Manning (1902) 186 U. S. 238, 245, 22 Sup. Ct. 881, 884, 46 L. ed. 1144, quoted in note 50 of Chapter 3, supra. On the suggestion that the commission was ex- ceeding the power granted to it by the statute, it may be thought that the cases in note 147 of Chapter 2, supra, sustain the position taken by the court, but this seems to be incorrect in view of the cases cited in the latter part of note 47 of Chapter 3, supra. 166 In Chicago & G. T. Ry. Co. v. Wellman (1892) 143 U. S. 339, 344, 12 Sup. Ct. 400, 402, 30 L. ed. 176, the court says, "The legislature has power to fix rates, and the extent of judicial interference is protection against un- reasonable rates," citing Stone v. Farmers' L. & T. Co. (see note 163, supra) and Chicago, M. & St. P. Ry. Co. v. Minnesota (see note 165, supra) and thus blending two ideas. In Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 398, 399, 14 Sup. Ct. 1047, 1054, 1055, 38 L. ed. 1014, these two cases are cited as authorities for the proposition that the judiciary may restrain any regulation of rates "which operates to deny to the owners of property invested in the business of transportation that equal protection which is the constitutional right of all owners of other property." See also St. Louis & S. F. Ry. Co. v. Gill (1895) 156 U. S. 649, 658, 15 Sup. Ct. 484, 488, 39 L. ed. 567; Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 592, 597, 17 Sup. Ct. 198, 204, 205, 41 L. ed. 560; Smyth v. Ames (1898) 169 U. S. 466, 523, 18 Sup. Ct. 418, 425, 42 L. ed. 819; Louisville & N. R. Co. v. JUST COMPENSATION. 233 Kaukauna and Yesler cases. 122. Then followed Kaukauna W. P. Co. v. Green B. & M. C. Co.i^'' and Yesler v. Washington H. L. Comrs.,^^^ in which the court declared that the taking of property without compensation constitutes a deprivation without due process of law. In the opinion in the former case there was no discussion of the question and no authorities were cited in support of the position taken.^^^ In Yesler V. Washington H. L. Comrs., while the court did not de- cide that the action of the state took any of the relator's property or so injuriously affected it as to be unconstitu- tional, the court said that it assumed its "jurisdiction to revise the judgment of a state tribunal upholding a law authorizing the taking of private property without com- Kentucky (1902) 183 U. S. 503, 511, 22 Sup. Ct. 95, 99, 46 L. ed. 298. In Smyth V. Ames (1898) 171 U. S. 361, 18 Sup. Ct. 488, 43 L. ed. 197; Lake S. & M. S. Ry. Co. V. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858; San Diego L. & T. Co. v. National City (1899) 174 U. S. 739, 754, 19 Sup. Ct. 804, 810, 43 L. ed. 1154; Chicago, M. & St. P. Ry. Co. v. Tompkins (1900) 176 U. S. 167, 20 Sup. Ct. 336, 44 L. ed. 417, the phrases "reason- able rates" and "just compensation" are intermingled in the same opinions. 167 (1891) 142 U. S. 254, 12 Sup. Ct. 173, 35 L. ed. 1004. 168 (1892) 146 U. S. 646, 13 Sup. Ct. 190, 36 L. ed. 1119. 169 In that case the court said, "It is evident that the court could not have reached a conclusion adverse to the defendant company without hold- ing, either that none of its property had been taken, or that it was not en- titled to compensation therefor, which is equivalent to saying that it had not been deprived of its property without due process of law." "We think these facts and allegations are sufficient to raise the constitutional ques- tion whether the property of the Water Power Company had been taken without compensation, and that the motion to dismiss should, therefore, be denied:" 142 U. S. at 269, 271, 12 Sup. Ct. at 176, 177, 35 L. ed. at 1009. The decree of the state court was affirmed. The court cited no authority for the position stated in the language quoted above. Counsel had cited (142 U. S. at 268) the concurring opinion of one justice in an earlier case, a part of whose language, had it been that of the court, would have directly supported the position taken in the Kaukauna case; and he had cited an opinion of the court which quoted with approval another part of that con- curring opinion which was not so clearly in point. 234 DUE PROCESS CLAUSES— DISCUSSION. pensation to he unquestionable," ^''^ citing in support of that assumption simply the Kaukauna case, in which, as already pointed out, there was no discussion of the ques- tion and no citation of authorities in support of the posi- tion. The court said in the Yesler case that the provision forbidding the federal government to take private prop- erty for public use without just compensation, ' ' expressed in the Fifth Amendment, is to be read with the Fourteenth Amendment, prohibiting the states from depriving any person of property without due process of law, and from denying to any person within their jurisdiction the equal protection of the laws. The Amendment undoubtedly forbids any arbitrary deprivation of life, liberty or prop- erty, and secures equal protection to all under like cir- cumstances in the enjoyment of their rights." ^"^^ The statement that a provision of the Fifth Amend- ment which is not repeated in the Fourteenth Amend- ment should be read with the latter Amendment obviously adds nothing to the value of the opinion. If the court might say that, because the Fifth Amendment provides for due process and just compensation, the Fourteenth Amendment which speaks merely of due process of law provides also for just compensation, the court might say with equal propriety that because Section 10 of Article I of the Constitution declares that no state shall pass any bill of attainder, ex post facto law or law impairing the obligation of contracts, therefore the provision of Section 9 of that Article that Congress shall not pass any bill of attainder or ex post facto law includes a prohibition upon Congress to pass any law which impairs the obligation of 170 146 U. S. at 655, 13 Sup. Ct. at 194, 30 L. ed. at 1122. 171 146 U. S. at 655, 13 Sup. Ct. at 194, 36 L. eJ. 1122. JUST COMPENSATION. 235 contracts. To that extent at least the position of the court is clearly unsonnd.^'^^* We have already considered the question whether the due process provision prohibits governmental action which is arbitrary.^ ^2 Chicago, B. & Q. R. Co. v. Chicago. 123. Several years later, without referring to the two cases which we have just noted, the court, in Chicago, B. & Q. R. Co. V. Chicago,^' ^ declared that the payment of just compensation when private property is taken for public use is essential to due process of law. The court, however, affirmed the judgment of the state court. It dis- cussed the question at some length and gave a number of citations, but its reasons, with but one exception, ^^^ may be dismissed without further consideration. In support of its position the court referred to decis- ions, dicta and statements of text-writers that the legisla- tive customs of England,^^^ natural justice,^'^ common law, ^^' principles of universal law,^^^ and principles of iTiaSee note 201, infra. 172 See sees. 89, 91, 105, 116, 117, supra. 173 (1897) 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979. 174 See sec. 124, infra. 175 Blackstone, Commentaries, I, *138, *139. (See also note 100, supra. Compare discussion in text on that page.) 176 Story, Const., sec. 1790, which deals with the provision for just com- pensation in the Fifth Amendment; Bradshaw v. Rogers (1822) 20 Johns. 103, 106; Martin et al., Ex parte (1853) 13 Ark. 198, 206 et seq.; Johnston V. Rankin (1874) 70 N. C. 550, 555; Gardner v. Newburgh (1816) 2 Johns. Ch. 162. See also Monongahela N. Co. v. United States (1893) 148 U. S. 312, 325, 13 Sup. Ct. 622, 626, 37 L. ed. 463. (And see discussion in sees. 92-104, 113, supra.) 177 Story, Const., sec. 1790; Parham v. The Justices (1851) 9 Ga. 341, 348; Sinnickson v. Johnson (1839) 17 N. J. L. 129, 145. See also Scott v. City of Toledo (1883) 36 Fed. 385, 394. (Compare note 16 in Chapter 2, supra. The New Jersey case was cited in Pumpelly v. Green B. & M. C. Co. 236 DUE PROCESS CLAUSES— DISCUSSION. general constitutional law/'^ require tlie payment of just compensation when property is taken for public use. We have already examined these propositions and we have seen that they do not justify the decision. The court also referred to decisions on provisions for just compensation in state constitutions,^^" to a decision on the provision for just compensation in the Fifth Amendment,^^^ and to a decision that the impairment of contract clause prevents deprivation without just com- pensation.^ ^^ Those decisions obviously have no bearing upon the question under consideration. (1871) 13 Wall. 166, 178, 20 L. ed. 557, mainly for the purpose of showing what constitutes a taking.) 178 Story, Const., sec. 1790; Petition of Mt. Washington Road Co. (1857) 35 N. H. 134, 142. (See also dissenting opinion in Chicago, B. & Q. Ry. Co. V. People (1906) 200 U. S. 561, 598, 26 Sup. Ct. 341, 352, 50 L. ed. 596. Such principles cannot have any greater weight on constitutional questions than have "principles of general constitutional law," discussed in note 179, infra.) 179 Cooley, Constitutional Limitations, *559, 7th ed., 812. See also ibid. *356, *357, 7th ed., 505, 506, 507; and Fletcher v. Peck (1810) 6 Cranch, 87, 135, 136, 3 L. ed. 162; Loan Assn. v. Topeka (1874) 20 Wall. 655, 663, 22 L. ed. 455; Cole v. La Grange (1885) 113 U. S. 1, 5 Sup. Ct. 416, 28 L. ed. 396; Searl v. School Dist. (1890) 133 U. S. 553, 560, 562, 10 Sup. Ct. 374, 376, 377, 33 L. ed. 740, cases which arose in federal courts. (When the validity of a law under the state constitution is involved, such principles, it is said, may be considered in a case arising in a federal court unless a state court has already passed upon the question — but only under such cir- cumstances: see Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 155, 17 Sup. Ct. 56, 62, 41 L. ed. 369; Davidson v. New Orleans (1877) 96 U. S. 97, 105, 24 L. ed. 616; Satterlee v. Matthewson (1829) 2 Pet. 380, 413, 414, 7 L. ed. 458; and note 47 in Chapter 3, supra.) iSOPmnpelly v. Green B. & M. C. Co. (1871) 13 Wall. 166, 20 L. ed. 557; Searl v. School Dist. (1890) 133 U. S. 553, 560, 562, 10 Sup. Ct. 374, 376, 377, 33 L. ed. 740; Sweet v. Reehel (1895) 159 U. S. 380, 392, 398, 399, 16 Sup. Ct. 43, 45, 48, 40 L. ed. 188. 181 Monongahela N. Co. v. United States (1893) 148 U. S. 312, 13 Sup. Ct. 622, 37 L. ed. 463. (Compare Barron v. Baltimore (1833) 7 Pet. 243, 8 L. ed. 672.) 182 People V. Piatt (1819) 17 Johns. 195, 215. JUST COMPEXSATION. 237 The court cited a decision of a state court that the tak- ing of property without just compensation is forbidden by the state constitution and by the Fourteenth Amendment to the Federal Constitution.^^^ The provision of the state constitution which was referred to^^^ clearly covers the question, so that reference to the Federal Constitution was unnecessary^, and, moreover, the state court did not say that it is the due process provision of the Fourteenth Amendment which requires compensation. The court referred to a decision, a dictum and state- ments by text-writers that not all legislative action, nor all procedure prescribed by the legislature, would satisfy the constitutional requirement.^^^ We have already ex- amined these indefinite propositions ^^^ and we have seen that their validity is questionable. But even if the propo- sitions were clearly established it would not necessarily 183 Proprietors of Mt. Hope Cemetery v. Boston (1893) 158 Mass. 509, 519, 33 N. E. 695, 698. 184 "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this pro- tection, to give his personal service, or an equivalent, when necessary; but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the rep- resentative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitu- tional representative body have given their consent. And whenever the pub- lic exigencies require that the property of any individual should be appro- prated to public uses, he shall receive a reasonable compensation therefor:" Declaration of Eights, Article X. 185 Scott V. City of Toledo (1888) 36 Fed. 385, 393, 1 L. R. A. 688; David- son v. New Orleans (1877) 96 U. S. 97, 102, 24 L. ed. 616; Cooley, Constitu- tional Limitations, *3o6, *357, 7th ed., 505-507 ; Story, Const., II, sec. 1956. (And see Lochner v. New York (1905) 198 U. S. 45, 56, 25 Sup. Ct. 539, 542, 49 L. ed. 937; Murray's Lessee v. Hoboken L. & I. Co. (1855) 18 How, 272, 276, 15 L. ed. 372; Cooley, Const. Lim., *354, 7th ed., 503; and cases in note 58 of Chapter 3, supra.) 186 See Topics Is Provision Necessarily a Substantive Restraint and The Law of the Land, supra. 238 DUE PROCESS CLAUSES— DISCUSSION. follow that the due process clauses ordained the particular substantive restraint which is now under consideration. The court cites two decisions by federal circuit courts that just compensation for property taken for public use is required b}^ the due process clause of the Fourteenth Amendment.^^^ Those decisions are based to a consider- able extent upon misstatements as to the position of the Supreme Court in one case, ^^^ and upon a dictum in an- other case which is fully counter-balanced by another dictum in that same earlier case which is more directly in point. ^^^ The taking of property for private use. 124. There remains for our consideration but one ground for the decision in the Chicago case. The court also based that decision upon earlier statements that the taking of property from one individual without his con- sent and giving it to another would be a deprivation 187 Scott V. City of Toledo (1888) 36 Fed. 385, 1 L. R. A. 688, followed in Baker v. Village of Norwood (1896) 74 Fed. 997. 188 See comment on tlie above cases in note 162, supra. 189 In the Toledo case the court says, "It involves no forced or unreason- able construction to hold that this Fourteenth Amendment, as applied to the appropriation of private property for public uses, was clearly intended to place the same limitation upon the power of the states which the Fifth Amendment had placed upon the authority of the federal government:" 36 Fed. 395, 1 L. R. A. 695. Compare page 234, supra; note 53, supra, and cases in note 201, infra.) "There is no difference in principle between the case put by Mr. Justice Miller, as an illustration, in Davidson v. New Or- leans (1877) 96 U. S. 97, 102, 24 L. ed. 616, viz., the taking of property from A. and vesting it in B., and the taking of property from an individual and vesting it in the public:" 36 Fed. 396, 1 L. R. A. 395. (Compare David- son V. New Orleans (1877) 96 U. S. 97, 105, 24 L. ed. 616, 620; Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 158, 17 Sup. Ct. 56, 63, 41 L. ed. 369; 21 Harv. L. Rev. at 392, 393.) Scott v. City of Toledo is measurably supported by Henderson v. Central P. Ry. Co, (1884) 21 Fed. 358, 365. See also Story, Const., sec. 1956. JUST COMPENSATION. 239 without due process of law.^®° There are later decisions and statements to the same effect.^^^ The rule seems to be desirable, although the court has usually found it im- possible to be strict in passing upon the question whether the use for which the property was taken was public or private.^ *^^ But the court has not in a single case in which it has taken that position shown that such a rule can be properly based upon the due process provision.^^^ 190 Missouri P. Ry. Co. v. Nebraska (1896) 164 U. S. 403, 17 Sup. Ct. 130, 41 L. ed. 489. (In Fallbrook Irr. Dist. v. Bradley ( 1896) 164 U. S. 112, 158, 17 Sup. Ct. 56, 63, 41 L. ed. 369, the court apparently concedes that the just compensation provision does not apply to the states. In Cole v. La Grange (1885) 113 U. S. 1, 5 Sup. Ct. 416, 28 L. ed. 396, cited at 164 U. S. 161, 17 Sup.Ct. 64, 41 L. ed. 390; Parkersburg v. Brown (1883) 106 U. S. 487, 501, 1 Sup. Ct. 442, 453, 27 L. ed. 238; Loan Assn. v. Topeka (1874) 20 Wall. 655, 22 L. ed. 455, three cases in which it was declared that the state legislatures could not authorize the taking of private property for private uses, the court was interpreting state constitutions. The cases arose in federal courts.) In Chicago, B. & Q. R. Co. v. Chicago the court also cited a dictum in Davidson v. New Orleans (1877) 96 U. S. 97, 102, 24 L. ed. 616, 619, and might have referred to 96 U. S. 107, 24 L. ed. 621, (see note 162, supra) but omitted reference to 96 U. S. 105, 24 L. ed. 620. 191 Cleveland E. Ry. Co. v. Cleveland & F. C. Ry. Co. (1907) 204 U. S. 116, 27 Sup. Ct. 202, 51 L. ed. 399 (with which compare Offield v. New Y., N. H. & H. R. Co. (1906) 203 U. S. 372, 27 Sup. Ct. 72, 51 L. ed. 231) ; Madisonville T. Co. v. St. Bernard M. Co. (1905) 196 U. S. 239, 251, 25 Sup. Ct. 251, 256, 49 L. ed. 462. See also Missouri P. Ry. Co. v. Nebraska (1910) 217 U. S. 196, 30 Sup. Ct. 461, 54 L, ed. 727; Louisville & N. R. Co. v. Cen- tral S. Y. Co. (1909) 212 U. S. 132, 29 Sup. Ct. 246, 53 L. ed. 441; Holden v. Hardy (1898) 169 U. S. 366, 390, 18 Sup. Ct. 383, 387, 42 L. ed. 780; King V. Hatfield (1900) 130 Fed. 564; and cases in note 192, infra. i92Hairston v. Danville & W. Ry. Co. (1908) 208 U. S. 598, 607, 28 Sup. Ct. 331, 335, 52 L. ed. 637; Offield v. New Y., N. H. & H. R. Co. (1906) 203 U. S. 372, 27 Sup. Ct. 72, 51 L. ed. 231; Otis Co. v. Ludlow M. Co. (1906) 201 U. S. 140, 26 Sup. Ct. 353, 50 L. ed. 696 ; Strickley v. Highland B. G. M. Co. (1906) 200 U. S. 527, 26 Sup. Ct. 301, 50 L. ed. 581; Clark v. Nash (1905) 198 U. S. 361, 25 Sup. Ct. 676, 49 L. ed. 1085. And see Noble State Bk. V. Haskell (1911) 219 U. S. 104, 110, 575, 31 Sup. Ct. 186, 187, 188, 299, 55 L. ed. 112; Bacon v. Walker (1907) 204 U. S. 311, 27 Sup. Ct. 289, 51 L. ed. 499; Dickinson T. R. (1903) 23 Pa. Super. 34; 5 Harv. L. Rev. 30. Com- pare Cleveland E. Ry. Co. v. Cleveland & F. C. Ry. Co. (1907) 204 U. S. 116, 27 Sup. Ct. 202, 51 L. ed. 399. 193 See dissenting opinion in Madisonville T. Co. v. St. Bernard M. Co. 240 DUE PROCESS CLAUSES— DISCUSSION. Whether a similar rule might be properly based upon the provision for the equal protection of the laws is a ques- tion which we need not consider in the present chapter. Later cases. 125. We have noted at some length the reasons given for the decision in Chicago, B. & Q. E. Co. v. Chicago/''^ because that case is frequently cited in later cases as the authority for the proposition that the payment of just compensation when private property is taken for public use is essential to due process of law. In Chicago, B. & Q. Ry. Co. V. People,^^^ however, in support of the state- ment that ' ' The constitutional requirement of due process of law, which embraces compensation for private prop- erty taken for public use, applies in every case of the ex- ertion of governmental power. If, in the execution of any power, no matter what it is, the government, federal or state, finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just compensation to the owner," the court cites merely three cases which relate strictly to the just compensation provision of the Fifth Amendment and one case which involves a provision for just compensa- tion in a state constitution. Those cases obviously do not justify the making of such a statement by the court. ^^^ (1905) 196 U. S. 239, 260, 25 Sup. Ct. 251, 259, 49 L. ed. 462; 32 Am. L. .'Reg. N. S. 1, 7; 24 Harv. L. Rev. 378; 21 Harv. L. Rev. 277; Hairston v. Danville & W. Ry. Co. (1908) 208 U. S. 598, 606, 28 Sup. Ct. 331, 334, 52 L. ed. 637. 104 (1897) 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979. 195 (1906) 200 U. S. 561, 593, 26 Sup. Ct. 341, 350, 50 L. ed. 596. 196 See also note 198, infra; and see reference in Willcox v. Consolidated G. Co^ (1909) 212 U. S. 19, 44, 29 Sup. Ct. 192, 196, 53 L. ed. 382, to Mon- ongahela N. Co. v. United States (1893) 148 U. S. 312, 13 Sup. Ct. 622, 37 L. ed. 463, which arose under the Fifth Amendment. JUST COMPENSATION. 241 General comment on position of court. 126. The opinions in a number of the cases in which the court has declared that the due process clause of the Four- teenth Amendment requires the payment of just compen- sation when private property is taken for public use ^^"^ were written by a justice who declared repeatedly in dis- senting- opinions in other cases that the Fourteenth Amendment imposed upon the states the restraints which the first eight Amendments had imposed upon the federal government,^ ^^ a position which the majority of the court has repeatedly repudiated. ^^^ And against the decisions which we have been consid- ering under the present topic there may also be brought the further criticism that when the court declares that the due process provision of the Fourteenth Amendment in- cludes a requirement of just compensation, then, unless that provision differs in meaning from the provision in the Fifth Amendment,-*^ *^ the court necessarily assumes that the framers of the Fifth Amendment made an un- necessary provision when they secured due process and just compensation in separate terms, and that when the former provision was transferred to the Fourteenth Amendment and the latter was not the adopters of that 197 E. g., Chicago, B. & Q. R. Co. v. Chicago (1897) 166 U. S. 226, 17 Sup. Ct. 581, 41 L. ed. 979; Chicago, B. & Q. Ry. Co. v. People (1906) 200 U. S. 561, 26 Sup. Ct. 341, 50 L. ed. 596; Smyth v. Ames (1898) 171 U. S. 361, 18 Sup. Ct. 488, 43 L. ed. 197, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Norwood V. Baker (1898) 172 U. S. 269, 19 Sup. Ct. 187, 43 L. ed, 443. 198 See, e. g., Hurtado v. California (1884) 110 U. S. 516, 4 Sup. Ct. Ill, 292, 28 L. ed. 232; O'Neil v. Vermont (1892) 144 U. S. 323, 370, 12 Sup. Ct. 693, 711, 36 L. ed. 450; Maxwell v. Dow (1900) 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. ed. 597; Patterson v. Colorado (1907) 205 U. S. 454, 27 Sup. Ct. 556, 51 L. ed. 879. See also note 163, supra. 199 See, e. g.. Twining v. New Jersey (1908) 211 U. S. 78, 29 Sup. Ct. 14, 53 L. ed. 97. 200 On this point see sees. 54, 55, supra. i6 242 DUE PROCESS CLAUSES— DISCUSSION. Amendment tliought that they were securing the full pro- tection of both provisions. And while the court has not considered it necessary to state these assumptions in ex- press terms, much less to defend them, their validity is decidedly questionable.^"^ TEXT AND CONTEXT. The significance of the context. 127. On looking at the context of the due process clause of the Fifth Amendment it will be observed that the pre- ceding clauses and the succeeding Amendment deal ex- clusively with the conduct of criminal trials, thus tending to show by mere association that the clause deals solely with procedure. Indeed, the only apparent objection to deriving this interpretation from the context lies in the fact that the due process clause is immediately followed by a provision that private property shall not be taken for public use without just compensation. And at first glance the presence of the just compensation provision seems to make it impossible to draw an interpretation of the due process clause from its context. But if we consider the probability of some logical con- nection between contiguous clauses of the same Amend- ment and examine the provisions more closely with this thought in mind we shall see that the apparent difficulty is not a real one. If the due process clause, like the pre- ceding clauses of the Fifth Amendment, deals with the conduct of criminal trials and with a taking by the pub- 201 See cases in note 53, supra, and also Fallbrook Irr. Dist. v. Bradley (1896) 164 U. S. 112, 158, 17 Sup. Ct. 56, 63, 41 L. ed. 369; dissenting opin- ion in Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 465, 10 Sup. Ct. 462, 705, 33 L. ed. 970. In this connection, however, consider end of note 160, supra, with cases in note 158, supra. TEXT AND CONTEXT. 243 lie in order to punish, it may be naturally followed by a provision relating to a taking by tbe public, not in order to punish but because the public wants the thing taken. There is just such a contrast in thought between the two clauses as to make it natural to place them together. And we must notice that only on that interpretation of the due process clause does it belong logically in that portion of the Constitution in which it was placed; and only on that interpretation of the due process clause was it logical to place the just compensation provision immediately after the due process provision. Moreover, it is significant that it is not only in the Fed- eral Constitution that the due process clause is so placed, but, as an able writer in the Harvard Law Review has declared with reference to the state constitutions also, the provision with which we are dealing is "in almost every instance inserted in a section of the constitution dealing exclusively with the conduct of criminal trials. "^"^^ And the reference to the deprivation of life in the due process clause shows clearly that the clause is one which relates to the enforcement of law. The true meaning of the term "liberty." 128. The author whom we have just quoted has pointed out steps by which the provision of Magna Carta that "no freeman shall be taken or imprisoned .... un- less by the lawful judgment of his peers and^*^^ by the 202 Shattuck, The True Meaning of the Term "Liberty" in Those Clauses in the Federal and State Constitutions Which Protect "Life, Liberty and Property," 4 Harv. L. Rev. 365, at 369. See also Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, at 372; Boudin, Government by Judiciary, 26 Pol. Sci. Quar. 238, 265; Green County V. Quinlan (1909) 211 U. S. 582, 594, 29 Sup. Ct. 162, 167, 53 L. ed. 335. 203 On this word see McKechnie, Magna Carta, 436, 442, 443. 244 DUE PROCESS CLAUSES— DISCUSSION. law of the land" has become our due process provision and shown that the term "liberty" when used in connec- tion with the due process requirement means "nothing- more or less than freedom of the person from restraint,— the great Habeas Corpus principle of Anglican liberty,— a right the illegal invasion of which gives rise to an ac- tion of false arrest or imprisonment. ' ' ^^'^ And he has, by an examination of other provisions of our constitutions, shown abundant reasons for saying that the term "lib- erty" was so understood when placed in this portion of the Federal Constitution.-"^ 204 Ubi supra, 4 Harv. L. Rev. at 382; and see ibid. 376; Corwin, ubi supra, 24 Harv. L. Rev. 366, 372, 467, 468, 474; Hand, Due Process of Law and the Eight Hour Day, 21 Harv. L. Rev. 495. 205 Ubi supra, 4 Harv. L. Rev. at 369, 380-382. And on the meaning of the term "liberty" see also book review in 12 Harv. L. Rev. at 440; Ex parte Boyce (1904) 27 Nev. 299, 354, 75 Pac. 1, 12, 65 L. R. A. 47, 64; Baldwin, The Courts as Conservators of Social Justice, 9 Col. L. Rev. 567, 569. Compare Prentice, Congress and the Regulation of Corporations, 19 Harv. L. Rev. at 180 et seq.; Mitchel v. Reynolds (1711) 1 P. Williams, 181, 188; Coke, Institutes, II, *47; Corwin, The Supreme Court and Uncon- stitutional Acts of Congress, 4 Mich. L. Rev. at 626. The term "liberty" is also used in a different sense in English law as meaning a franchise or privilege: see McKechnie, Magna Carta, 445; Dominus Rex v. Kilderby (1671) 1 Saund. 312; Ritchie, Natural Rights, 7; 4 Harv. L. Rev. 372, note; ibid. 375. The meanings should no more be confused than should the general power of Congress to lay duties be construed as a general power to say what it shall be the duty of men to do. Nor should either meaning be confuped with that which has been given to the term by the United States Supreme Court and which we shall consider at once. If the word "liberty" had a definite meaning when used in a due process provision, meanings which it had in other connections are irrelevant. — The connec- tion in which a term is used is important. It is said that Dean Swift once based a sermon against the style of hair-dressing in favor with the women of his day upon that part of Matt, xxiv, 17 ("Let him which is on the house-top not come down to take anything out of his house") which reads "top-knot come down." So also a biographer of the great Chief Justice might say that Magna Carta was granted on the advice of John Marshall, and his statement would be literally true. On this see Green County v. Quinlan (1909) 211 U. S. 582, 594, 29 Sup. Ct. 162, 167, 53 L. ed. 335; 24 Harv. L. Rev. at 474. TEXT AND CONTEXT. 245 The position of the court on the term * 'liberty." 129. The United States Supreme Court, however, in re- cent cases has given a far different interpretation to that term, and incidentally to the entire due process provision, both in the Fifth Amendment ^^^ and in the Fourteenth Amendment,^ °'^ the court saying in Allgeyer v. Louisi- 206 Adair v. United States (1908) 208 U. S. 161, 28 Sup. Ct. 277, 52 L. ed. 436. Compare Second Employers' Liability Cases — Mondou v. New Y., N. H. & H. E. Co. (1912) 223 U. S. 1, 52, 32 Sup. Ct. 169, 176, 56 L. ed. 327; Baltimore & 0. K Co. v. Interstate Com. Comn. (1911) 221 U. S. 612, 619, 31 Sup. Ct. 621, 625, 55 L. ed. 878; Lottery Case— Champion v. Ames (1903) 188 U. S. 321, 357, 23 Sup. Ct. 321, 327, 47 L. ed. 492; Addy- ston P. & S. Co. V. United States (1899) 175 U. S. 211, 228, 229, 20 Sup. Ct. 96, 103, 44 L. ed. 136; United States v. Joint T. Assn. (1898) 171 U. S. 505, 572, 19 Sup. Ct. 25, 33, 43 L. ed. 259 ; and also Buttfield v. Stranahan (1904) 192 U. S. 470, 493, 24 Sup. Ct. 349, 354, 48 L. ed. 252. 207 Allgeyer v. Louisiana (1897) 165 U. S. 578, 589, 17 Sup. Ct. 427, 431, 41 L. ed. 832; Lochner v. New York (1905) 198 U. S. 45, 53, 25 Sup. Ct. 539, 541, 49 L. ed. 937; and see Chicago, B. & Q. E. Co. v. McGuire (1911) 219 U. S. 549, 567, 31 Sup. Ct. 259, 262, 55 L. ed. 328; Brodnax v. Missouri (1911) 219 U. S. 285, 293, 31 Sup. Ct. 238, 240, 55 L. ed. 219; House V. Mayes (1911) 219 U. S. 270, 284, 31 Sup. Ct. 234, 237, 55 L. ed. 213; Grenada L. Co. v. Mississippi (1910) 217 U. S. 433, 442, 30 Sup. Ct. 535, 539, 54 L. ed. 826; Williams v. Arkansas (1910) 217 U. S. 79, 30 Sup. Ct. 493, 54 L. ed. 673; McLean v. Arkansas (1909) 211 U. S. 539, 545, 29 Sup. Ct. 206, 207, 53 L. ed. 315; Muller v. Oregon (1908) 208 U. S. 412, 421, 28 Sup. Ct. 324, 326, 52 L. ed. 551; Jacobson v. Massachusetts (1905) 197 U. S. 11, 26, 29, 25 Sup. Ct. 358, 361, 362, 49 L. ed. 643; Smiley v. Kansas (1905) 196 U. S. 447, 456, 25 Sup. Ct. 289, 291, 49 L. ed. 546; Booth V. Illinois (1902) 184 U. S. 425, 428, 22 Sup. Ct. 425, 426, 46 L. ed. 623; W. W. Cargill Co. v. Minnesota (1901) 180 U. S. 452, 467, 21 Sup. Ct. 423, 429, 45 L. ed. 619; Williams v. Fears (1900) 179 U. S. 270, 274, 21 Sup. Ct. 128, 129, 45 L. ed. 186; Mutual L. Co. v. Martell (1911) 222 U. S. 225, 235, 32 Sup. Ct. 74, 75, 56 L. ed. 175; dissenting opinion in Taylor and Marshall v. Beckham (1900) 178 U. S. 548, 603, 20 Sup. Ct. 890, 1016, 44 L. ed. 1187. Compare Northwestern N. L. I. Co. v. Eiggs (1906) 203 U. S. 243, 255, 27 Sup. Ct. 126, 129, 51 L. ed. 168; Berea Col- lege V. Kentucky (1908) 211 U. S. 45, 29 Sup. Ct. 33, 53 L. ed. 81; Heath & Milligan Mfg. Co. v. Worst (1907) 207 U. S. 338, 357, 28 Sup. Ct. 114, 120, 52 L. ed. 236; Western T. Assn. v. Greenberg (1907) 204 U. S. 359, 27 Sup. Ct. 384, 51 L. ed. 520; Schmidinger v. Chicago (1913) 226 U. S. 578, 589, 33 Sup. Ct. 182, 185, 57 L. ed. 364; Atlantic C. L. E. Co. v. Eiverside Mills (1911) 219 U. S. 186, 202, 31 Sup. Ct. 164, 169, 55 L. ed. 167; Noble 246 DUE PROCESS CLAUSES— DISCUSSION. ana^^* that the liberty mentioned ''means not only the right of the citizen to be free from the mere physical re- straint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties ; to be free to use them in all lawful ways; to live and work where he will; to earn, his livelihood by any lawful calling; to pursue any liveli- hood or avoeation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned." While later decisions have made somewhat clearer the effect which the court gives to the term "liberty," the opinions usually refer back to the Allgeyer case. Allgeyer v. Louisiana. 130. The importance of that decision, however, is weak- ened by the character of the opinion. The language which we have quoted shows confusion of thought. The court alternates between the omission and the use of the word "lawful" in the several phrases. The unqualified state- state Bank v. Haskell (1911) 219 U. S. 104, 110, 111, 31 Sup. Ct. 186, 187, 188, 55 L. ed. 112. — Of decisions which were similar to that in Lochner V. New York, supra, Professor Seager has said that they have "implanted in the minds of workingmen a thorough distrust of the courts:" The At- titude of American Courts Towards Restrictive Labor Laws, 19 Pol. Sci. Quar. 589. See also G. W. Alger, Moral Overstrain, essay entitled "Some Equivocal Rights of Labor;" Seager, Introduction to Economics, sec. 236; Roe, Our Judicial Oligarchy, 10, 11, 15, 37; Pound, Liberty of Contract, 18 Yale L. Jour. 454, 487; Pound, Common Law and Legislation, 21 Harv. L. Rev. 383, 384; Alger, The Old Law and the New Order, 166, 167, 253, 254; Alger, The Law and Industrial Inequality, 7 The Brief, 1, 10, 11; White, Government Control of Transportation Charges, 38 Am. L. Reg. N. S. at 296; book review 24 Pol. Sci. Quar. 318, 319; Boudin, Government by Judiciary, 26 Pol. Sci. Quar. 238, 265, 266; editorial The Menace of Law, The Independent, Aug., 1912, 281. 208 (1897) 165 U. S. 578, 589, 17 Sup. Ct. 427, 431, 41 L. ed. 832. TEXT AND CONTEXT. 247 ments of freedom from restraint are certainly incorrect, for it is clear that some restraints may constitutionally be imposed. And, on the other hand, the statement that men may do anything which is lawful, while obviously correct, does not solve the question under consideration, for it does not show what are the limitations upon the re- straining power of the law-making department of govern- ment. The decision in the Allgeyer case was based upon the language of Justice Bradley in Butchers' U. Co. v. Cres- cent C. Co.^°^ in an opinion which did not receive the approval of a majority of the court and which if approved would have meant the reversal of an earlier decision of the court from which Justice Bradley had dissented,^ ^^ and upon a dictum which a justice who had concurred in Justice Bradley's opinion in the Butchers' Union case had placed in the opinion in Powell v. Pennsylvania.^^ ^ The bulk of the language quoted above was copied almost ver- batim from an opinion of the New York Court of Ap- peals ^^^ which in turn refers approvingly to the before- 209 (1884) 111 U. S. 746, 764, 765, 4 Sup. Ct. 652, 657, 658, 28 L. ed. 585. The use in the Declaration of Independence of the terms "liberty" and "pursuit of happiness" together certainly does not show that the mean- ing of the latter term, which is omitted from the due process clause, is in- cluded in the meaning of the former term. — It is not clear that the attitude towards government when the Fifth Amendment or the Fourteenth Amend- ment was adopted was precisely the same as that which from a few pre- fatory words in the Declaration of Independence we may possibly think was taken in 1776. Did the people who adopted those Amendments show no paternalistic sentiments through their representatives in Congress? 210 Part of the language quoted in the Allgeyer case was directly in con- flict with the decision in the Slaughter House Cases (1872) 16 Wall. 36, on a point concerning which the court said in Twining v. New Jersey (1908) 211 U. S. 78, 96, 29 Sup. Ct. 14, 18, 53 L. ed, 97, "This part at least of the Slaughter House Cases has been steadily adhered to by this court." 211 (1888) 127 U. S. 678, 684, 7 Sup. Ct. 992, 1257, 995, 32 L. ed. 253. 212 In re Jacobs (1885) 98 N. Y. 98. On the disastrous effect of the de- cision in the New York case see Kelley, Some Ethical Gains Through Leg- 248 DUE PKOCESS CLAUSES— DISCUSSION. mentianed opinion of Justice Bradley in the Butchers' Union case, to an opinion by the same justice in circuit court which declared unconstitutional a law which the Supreme Court afterwards declared constitutional, and to a dissenting opinion by Justice Field. No other re- marks by justices of the United States Supreme Court on * ' liberty ' ' are referred to in the opinion of the New York court."^^ There is, therefore, but little basis in precedent for the decision in the Allgeyer case. CONCLUSION. Position of the court criticised. 131. In reaching the interpretation which the court has given to the due process clauses it has been necessary for the court to ignore the presence in those clauses of the words ''without due process of law," although the very phraseology of the provision shows that it was the inten- tion of those who adopted the Amendments to permit the deprivation by due process of law of rights of which no person might be deprived otherwise.^^^ islation, 253. See also Alger, The Old Law and the New Order, 166, 167; Roe, Our Judicial Oligarchy, 10, 11; Alger, The Law and Industrial Equal- ity, 69 Alb. L. J. 121, 126. 213 It may be added that the court does quote federal authorities on judicial inquiry, not into the exercise of the enumerated powers of Con- gress, but into the exercise of what are called the implied powers — inquiry whether powers which it is claimed are impliable from the enumerated powers of Congress are in reality so impliable. But it does not appear how the question, which is sometimes raised by federal statutes, can be raised by state legislation. Unless New York is different from most states, its •legislature is unlike Congress in that the legislature has all powers which are not denied to it expressly or by necessary implication from grants to other departments of government. The bearing of those quotations upon state legislation is not apparent. — On implied powers see also note 119, supra. 214 See Corwin, The Doctrine of Due Process of Law Before the Civil CONCLUSION. 249 Moreover, its interpretation was given without any consideration of the context of the due process provision. The court approached the question in dealing with the Fourteenth Amendment, where the context is not instruc- tive. But as the context of the provision in the Four- teenth Amendment does not show that its meaning there is different from its meaning in the Fifth Amendment, it seems clear that any light which the context casts upon the meaning in the earlier Amendment should apply to the meaning in the subsequent Amendment, for the court in- terprets the clauses in both Amendments alike.^^^ And not only has the court not considered the context of the due process provision, but it has not considered the his- torical meaning of the provision or even some of the earlier decisions of the court itself.^ ^^ It is possible that if such matters were properly brought to the attention of the court the question would be re- examined. Certainly it is the duty of the court, when in- War, 24 Harv. L. Rev. at 467, 468, 474; Missouri P. Ry. Co. v. Humes (1885) 115 U. S. 512, 520, 6 Sup. Ct. 110, 112, 29 L. ed. 463. 215 See sec. 54, supra. 216 See comment of C. E. Shattuck, in 4 Harv. L. Rev. at 386, on the de- cision in the Slaughter House Cases (1872) 16 Wall. 36: "The court did not, apparently, consider it even arguable that the restraint upon follow- ing their lawful calling was a deprivation of 'liberty.' Moreover, the de- cision does not rest, so far as this clause is concerned, upon the ground that the act was a fair exercise of the police power, and so was due process of law. It proceeds on the ground that the Fourteenth Amendment has no application whatever to such a right as that contended for, namely, the right of every man to pursue a lawful occupation. So that the actual de- cision in the case is against, rather than in favor of, the broad construc- tion of the term 'liberty.' " See also the comment of that author on the decision in Bradwell v. State (1872) 16 Wall. 130, 21 L. ed. 442.— Mc- Gehee, Due Process of Law, 138 et seq., quotes in the text two passages from opinions of Justice Field which the notes show to be dissenting opin- ions; and Stimson, Federal and State Constitutions of the United States, 32, quotes from a dissenting opinion of Justice Field with the misstate- ment that it was the opinion of the court. The position which the court has taken in recent cases was not taken by the court in earlier cases. 250 DUE PROCESS CLAUSES— DISCUSSION. tei*preting provisions of the Constitution, to ascertain whether the terms had established meanings when placed in the Constitution and, if so, to apply them in accordance with those meanings.-^"^ And it seems clear that when the due process provision was placed in the Federal Con- stitution it referred simply to those deprivations which are usually made by way of punishment and that it refer- red simply to the procedure which must be observed in determining whether the law has been violated. Should the court now take the correct position? 132. One point remains for our final consideration. It may be admitted that when the due process provision was placed in the Federal Constitution it did not refer to sub- stantive law. It may be admitted that upon every occa- sion upon which the Supreme Court nullifies a law by de- claring that the provision does deal with substantive law it assumes a power which those who adopted the provi- sion never intended to bestow upon the court. And yet it may be claimed that the interpretation of the due process provision has been settled by repeated judicial decisions and that a change in its interpretation would result in a large amount of confusion. In reply it is sufficient to point to the present state of the decisions concerning the due process clauses.^^^ Would the law become more confused if the clauses were inter- preted correctly? Or has ''the gradual process of judicial inclusion and exclusion" along present lines already wov- en a tangled web of inconsistent decisions, which shows every sign of becoming more and more tangled as time goes on? 217 See note 11 in Chapter 3, supra. 218 See, e. g., sees. 70, 67, 63, 71, 92, 105, 106, supra. CHAPTER V. THE EQUAL PROTECTION PROVISION. INTRODUCTORY. 133. The clause stated. 134. The organs of government restrained. 135. The "persons" protected. GENERAL EXTENT OF RESTRAINT. 136. Clause forbids some state actions as well as omissions to act. 137. Discrimination which is forbidden. 138. Illustrations. 139. Classification which is permitted. 140. Wide range of legislative discretion. BEARING OF PROVISION ON RATE REGULATION. 141. In general. 142. Power to limit rates. 143. Classification of railroads for rate regulation. 144. Other regulations of railroads. 145. EXCESSIVE PENALTIES. 146. REASONABLENESS AND JUST COMPENSATION. INTRODUCTORY. The clause stated. 133. The Fourteenth Amendment provides that no state shall ' ' deny to any person within its jurisdiction the equal protection of the laws. ' ' The organs of government restrained. 134. Tliis provision obviously relates to the state gov- ernments and does not restrain the federal government.^ 1 See sec. 53, supra. 251 252 THE EQUAL PROTECTION PROVISION. It applies to action by the state itself through its consti- tution and it applies to action by any organ of state gov- ernment. This is true whether the action is by the legisla- ture or the judiciarj^ or the officers of the central admin- istration, although acts by municipalities or subordinate officers or private individuals, unless authorized or until supported by the state authorities, do not come within the purview of the Constitution.^ The "persons" protected. 135. The term "persons" in the equal protection pro- vision includes natural persons as a matter of course. The court has also decided repeatedly that the term in- cludes within its scope corporations, both domestic and foreign, although the rights of those corporations may be in some respects less than the rights of natural persons.^ GENERAL EXTENT OF RESTRAINT. Clause forbids some state actions as well as omissions to act. 136. The main purpose of those who adopted the Four- teenth Amendment was doubtless to make sure that the states would give tO' the freedmen the same protection as it gave to other persons against oppression by their fel- low-citizens.^ And in one respect this main purpose has 2 The word "state" unquestionably has the same meaning in the equal protection clause as it has in the due process clause of the Fourteenth Amendment. Decisions showing its meaning in the latter clause are cited in section 58, supra. 3 See note 2, supra, and cases in section 57, supra. 4 See Slaughter House Cases (1872) 16 Wall. 36, 81, 21 L. ed. 394; Ex parte Virginia (1879) 100 U. S. 339, 344, 345, 25 L. ed. 676; Plessy v. Fer- guson (1896) 163 U. S. 537, 543, 544, 16 Sup. Ct. 1138, 1140, 41 L. ed. 256; and also Collins, The Fourteenth Amendment and the States, 126, 127. It is true, however, that "of the six hundred and four cases involving the GENERAL EXTENT OF RESTRAINT. 253 been strictly observed. Wlien, soon after the adoption of the Amendment, Congress, under color of its author- ity to enforce the provision by appropriate legislation, attempted to forbid discriminator}^ action by individ- uals, that legislation was declared unconstitutional. The court decided that the Amendment relates to the states and that it has no direct bearing upon the conduct of in- dividuals.^ But in another direction the Amendment has been given a very sweeping effect. It has been held that the Amendment not only forbids the state to refuse to pro- tect all persons equally against the misdeeds of their fel- low-citizens but that it also forbids the state itself to take positive action which bears unequally upon those who are subject to its jurisdiction. This position has not al- ways been stated felicitously. Thus it has been said that the equal protection of the laws means the protection of equal laws *'— a statement which makes the position of the court depend upon a distortion of the wording of the Amendment. The same result, however, could be reached by a more correct course if we said that the state must not only afford to all persons equal protection against the acts of other persons but that it must also afford to all persons equal protection against the acts of its own rep- resentatives. Fourteenth Amendment in which the Supreme Court has delivered opin- ions since 1868, only twenty-eight deal with questions involving the negro race; that is to say, less than five per cent of the total litigation under the Amendment:" Collins, ubi supra, 46, 47. "What positive gain has the operation of the Fourteenth Amendment been to the negro race? We can point to nothing:" Ibid. 76; see also 112, 129. 5 See note 25 in Chapter 3, supra. Compare Corwin, The Supreme Court and the Fourteenth Amendment, 7 Mich. L. Rev. 643, 645. 6 See German A. Ins. Co. v. Hale (1911) 219 U. S. 307, 319, 31 Sup. Ct. 246, 249, 55 L. ed. 229; Southern Ry. Co. v. Greene (1910) 216 U. S. 400, 412, 30 Sup. Ct. 287, 289, 54 L. ed. 536. 254 THE EQUAL PROTECTION PROVISION. Still, however the position of the court is stated, but few cases have arisen under the equal protection provi- sion in which it has been contended that a state had vio- lated the provision by a discrimination in the protection afforded against the actions of private individuals, and many cases have arisen in which it has been contended that organs of state government had by positive action injured some persons by improperly discriminating against them and had for that reason violated the equal protection provision, and in a number of cases such con- tentions have been sustained. Discrimination which is forbidden. 137. We have, then, the general proposition that the equal protection provision forbids governmental action which discriminates unjustifiably against particular per- sons or classes of persons. Equal security must be given to all persons under like circumstances in the enjoyment of their personal and civil rights.'^ It is true, as we shall see later on,^ that the legislature may enact legislation which is limited in its scope. It may classify the objects of legislation. But arbitrary se- lection can never be justified by calling it classification. The classification must be one which is based upon some difference which bears a proper relation to the attempted 7 Southern ily. Co. v. Greene (1910) 216 U. S. 400, 412, 30 Sup. Ct. 287, 289, 54 L. ed. 536; Raymond v. Chicago T. Co. (1907) 207 U. S. 20, 28 Sup. Ct. 7, 52 L. ed. 78; Connolly v. Union S. P. Co. (1902) 184 U. S. 540, 22 Sup. Ct. 431, 46 L. ed. 679; Cotting v. Kansas C. S. Y. Co. (1901) 183 U. S. 79, 102, 22 Sup. Ct. 30, 40, 46 L. ed. 92; Holden v. Hardy (1898) 169 U. S. 366, 398, 18 Sup. Ct. 383, 390, 42 L. ed. 780; Gulf, C. & S. F. Ry. Co. v. Ellis (1897) 165 U. S. 150, 159, 165, 17 Sup. Ct. 255, 258, 261, 41 L. ed. 666. 8 Sees. 139, 140, 143, infra. GENEEAL EXTENT OF RESTRAINT. 255 classification.^ It must not be a mere excuse for the op- pression or spoliation of a particular class.^*' Illustrations. 138. Thus, as was pointed out in a case which was cited with approval by the Supreme Court, "The legislature may fix the age at which persons shall be deemed compe- tent to contract for themselves, but no one will claim that competency to contract can be made to depend upon stat- ure, or color of the hair." ^^ So also, for example, it has been held that a state may not require a negro prisoner to submit to a trial by a jury from which negroes are ex- cluded by reason of their race; ^^ and a municipality may 9 Gulf, C. & S. F. Ry. Co. v. Ellis (1897) 165 U. S. 150, 159, 165, 17 Sup. Ct. 255, 258, 261, 41 L. ed. 666; Cotting v. Kansas C. S. Y. Co. (1901) 183 U. S. 79, 102, 22 Sup. Ct. 30, 40, 46 L. ed. 92. See also Magoun v. Illinois T. & S. Bank (1898) 170 U. S. 283, 294, 18 Sup. Ct. 594, 599, 42 L. ed. 1037. Compare sec. 140, infra. lOHolden v. Hardy (1898) 169 U. S. 366, 398, 18 Sup. Ct. 383, 390, 42 L. ed. 780. See also cases in note 7, supra. nSee State v. Loomis (1892) 115 Mo. 307, 314, 22 S. W. 350, 351, 21 L. R. A. 789, cited in Gulf, C. & S. F. Ry. Co. v. Ellis (1897) 165 U. S. 150, 156, 17 Sup. Ct. 255, 257, 41 L. ed. 666. l2Strauder v. West Virginia (1879) 100 U. S. 303, 25 L. ed. 664; Bush V. Kentucky (1882) 107 U. S. 110, 1 Sup. Ct. 625, 27 L. ed. 354; Carter v. Texas (1900) 177 U. S. 442, 20 Sup. Ct. 687, 44 L. ed. 839; Rogers v. Ala- bama (1904) 192 U. S. 226, 24 Sup. Ct. 257, 48 L. ed. 417. See also Ex parte Virginia (1879) 100 U. S. 339, 25 L. ed. 676; Brownsfield v. South Carolina (1903) 189 U. S. 426, 23 Sup. Ct. 513, 47 L. ed 882. The pris- oner, however, cannot go further than this and insist that the jury be com- posed, either in part or in whole, of men of his own race: Martin v. Texas (1906) 200 U. S. 316, 26 Sup. Ct. 338, 50 L. ed. 497; Virginia v. Rives (1879) 100 U. S. 313, 25 L. ed. 667; Bush v. Kentucky (1882) 107 U. S. 110, 1 Sup. Ct. 625, 27 L. ed. 354; In re Shibuya Jugiro (1891) 140 U. S. 291, 297, 11 Sup. Ct. 770, 772, 35 L. ed. 510; Gibson v. Mississippi (1896) 162 U. S. 565, 16 Sup. Ct. 904, 40 L. ed. 1075. See also Franklin v. South Carolina (1910) 218 U. S. 161, 30 Sup. Ct. 640, 54 L. ed. 980; Thomas v. Texas (1909) 212 U. S. 278, 29 Sup. Ct. 393, 53 L. ed. 512; Tarrance v. Florida (1903) 188 U. S. 519, 23 Sup. Ct. 402, 47 L. ed. 572; Williams v. Mississippi (1898) 170 U. S. 213, 18 Sup. Ct. 454, 42 L. ed. 1012. 256 THE EQUAL PROTECTION PROVISION. not, in regulating business, make discriminations which are founded on differences of race.^^ A classification for taxation which divides corporations doing exactly the same business with the same kind of property into for- eign and domestic and subjects the foreign corporations to higher taxation denies to the foreign corporations the equal protection of the laws.^^ And, to cite the cases in which we are most interested, a state may not require railroad companies to transport passengers or freight at rates which are unreasonably low, for in so far as such corporations are denied the right, while others are per- mitted, to receive reasonable profits upon their invest- ments, those corporations are deprived of the equal pro- tection of the laws.^^ Classification which is permitted. 139. But while the provision forbids governmental ac- iSYick Wo V. Hopkins (1886) 118 U. S. 356, 6 Sup. Ct. 1064, "^0 L. ed. 220. 14 Southern Ry. Co. v. Greene (1910) 216 U. S. 400, 412, 30 Sup. Ct. 287, 289, 54 L. ed. 536. Compare Darnell v. Indiana (1912) 226 U. S. 390, 398, 33 Sup. Ct. 120, 121, 57 L. ed. 267; Selover, Bates & Co. v. Walsh (1912) 226 U. S. 112, 125, 33 Sup. Ct. 69, 72, 57 L. ed. 146; Aluminum Co. V. Ramsey (1911) 222 U. S. 251, 256, 32 Sup. Ct, 76, 77, 56 L. ed. 185. 15 Ex parte Young (1908) 209 U. S. 123, 28 Sup. Ct. 441, 52 L. ed. 714, 13 L. R. A. N. S. 932; Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858; Smyth v. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014; Reagan v. Mercantile T. Co. (1894) 154 U. S. 413, 418, 14 Sup. Ct. 1060, 1062, 38 L. ed. 1028; Chicago, M. & St. P. Ry. Co. V. Minnesota (1890) 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. ed. 970; Montana, W. & S. R. Co. v. Morley (1912) 198 Fed. 991. See also Railroad Comn. of La. v. Cumberland T. & T. Co. (1909) 212 U. S. 414, 29 Sup. Ct. 357, 53 L. ed. 577. Compare Louisville & N. R. Co. V. Kentucky (1902) 183 U. S. 503, 22 Sup. Ct. 95, 46 L. ed. 298; Minne- apolis & St. L. R. Co. V. Minnesota ( 1903 ) 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151; and also Norfolk & S. T. Co. v. Virginia (1912) 225 U. S. 264, 32 Sup. Ct. 828, 56 L. ed. 1082, the last of which arose under the due process clause of the Fourteenth Amendment. GENERAL EXTENT OF RESTRAINT. 257 tion which discriminates unjustifiably against particular persons or classes of persons, it does not limit the state to governmental action which affects alike all persons who are subject to its jurisdiction.^*' It does not prohibit leg- islation which is limited either in the objects to which it is directed or by the territory within which it is to op- erate/"^ if within the sphere of its operation the legisla- 16 It does "not radically change the whole theory of the relation of the state and federal governments to each other, and of both governments to the people:" see note 51, in Chapter 4, supra. On the power to enact special legislation see Magouu v. Illinois T. & S. Bank (1898) 170 U. S. 283, 294, 18 Sup. Ct. 594, 599, 42 L. ed. 1037; Central L. Co. v. South Dakota (1912) 226 U. S. 157, 161, 33 Sup. Ct. 66, 67, 57 L. ed. 164. iTMagoun v. Illinois T. & S. Bank (1898) 170 U. S. 283, 293, 294, 18 Sup. Ct. 594, 598, 599, 42 L. ed. 1037. See also Patterson, The United States and the States Under the Constitution, 2d ed., p. 314. The Amend- ment does not compel the legislature "to run all its laws in the channels of general legislation:" Bachtel v. Wilson (1907) 204 U. S. 36, 41, 27 Sup. Ct. 243, 245, 51 L. ed. 357. "When there is a difference it need not be great or conspicuous in order to warrant classification : " Keeney v. New York (1912) 222 U. S. 525, 537, 32 Sup. Ct. 105, 107, 55 L. ed. 299. "If an evil is specially experienced in a particular branch of business, the Constitution embodies no prohibition of laws confined to the evil, or doc- trinaire requirement that they should be couched in all-embracing terms. It does not forbid the cautious advance, step by st«p, and the distrust of generalities which sometimes have been the weakness, but often the strength, of English legislation:" Carroll v. Greenwich Ins. Co. (1905) 199 U. S. 401, 411, 26 Sup. Ct. 66, 67, 50 L. ed. 246; see also Lindsley v. Natural C. G. Co. (1911) 220 U. S. 61, 81, 31 Sup. Ct. 337, 341, 55 L. ed. 369. "We must be cautious about pressing the broad words of the Four- teenth Amendment to a drily logical extreme. Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guar- antees in the Bill of Rights:" Noble State Bank v. Haskell (1911) 219 U. S. 104, 110, 31 Sup. Ct. 186, 187, 55 L. ed. 112. "You cannot carry a con- stitution out with mathematical nicety to logical extremes:" Paddell v. City of New York (1908) 211 U. S. 446, 450, 29 Sup. Ct. 139, 140, 53 L. ed. 275. "Tradition and the habits of the community count for more than logic:" Laurel Hill Cemetery v. San Francisco (1910) 216 U. S. 358, 366, 30 Sup. Ct. 301, 302, 54 L. ed. 515. "The general expressions of the Amend- ment must not be allowed to upset familiar and long-established methods and processes by a formal elaboration of rules which its words do not im- port:" Hatch v. Reardon (1907) 204 U. S. 152, 158, 27 Sup. Ct. 188, 189, 17 258 THE EQUAL PROTECTION PROVISION. tion affects alike all persons and property similarly situ- ated. ^^ The Amendment does not forbid the state legis- latures to classify the objects of legislation. Wide range of legislative discretion. 140. And in making classilfications a wide scope of leg- islative discretion may be exerted.^^ The provision does not restrain the normal exercise of governmental power, and, therefore, even if some inequality results a law is not for that reason unconstitutional.^" If the classifica- tion rests upon some reasonable consideration of differ- ence or policy there is no denial of the equal protection of 51 L. ed. 415; see also Louisville & N. R. Co. v. Barber A. P. Co. (1905) 197 U. S. 430, 434, 25 Sup. Ct. 466, 467, 49 L. ed. 819; Southern I. Ry. Co. v. Railroad Comn. (1909) 172 Ind. 113, 127, 87 N. E. 966, 971. And see note 24, infra; Sperry & Hutchinson Co. v. Rhodes (1911) 220 U. S. 502, 505, 31 Sup. Ct. 490, 491, 55 L. ed. 561; Denver v. New Y. T. Co. (1913) 229 U. S. 123, 143, 33 Sup. Ct. 657, 666, 57 L. ed. 1101; Citizens' T. Co. v. Fuller (1913) 229 U. S. 322, 33 Sup. Ct. 833, 57 L. ed. 1206; Chicago D. & C. Co. V. Fraley (1913) 228 U. S. 680, 686, 33 Sup. Ct. 715, 716, 57 L. ed. 1022; Schmidinger v. Chicago (1913) 226 U. S. 578, 586, 33 Sup. Ct. 182, 183, 57 L. ed. 364; Rosenthal v. New York (1912) 226 U. S. 261, 271, 33 Sup. Ct. 27, 30, 57 L. ed. 212; Kentucky U. Co. v. Kentucky (1911) 219 U. S. 140, 161, 31 Sup. Ct. 171, 180, 55 L. ed. 137; Ozan L. Co. v. Union C. N. Bk, (1907) 207 U. S. 251, 256, 28 Sup. Ct. 89, 91, 52 L. ed. 195; State V. Sutton (1912) 84 N. J. L., 84 Atl. 1057, 1059. 18 German A. Ins. Co. v. Hale (1911) 219 U. S. 307, 310, 31 Sup. Ct. 246, 249, 55 L. ed. 229; Williams v. Arkansas (1910) 217 U. S. 79, 90, 30 Sup. Ct. 493, 495, 54 L. ed. 673; Barbier v. Connolly (1885) 113 U. S. 27, 32, 5 Sup. Ct. 357, 360, 28 L. ed. 923. 19 Louisville & N. R. Co. v. Melton (1910) 218 U. S. 36, 52, 30 Sup. Ct. 676, 680, 54 L. ed. 921; Central L. Co. v. South Dakota (1912) 226 U. S. 157, 160, 33 Sup. Ct. 66, 67, 57 L. ed. 164; Brown-Forman Co. v. Ken- tucky (1910) 217 U. S. 563, 573, 30 Sup. Ct. 578, 580, 54 L. ed. 883; Magoun v. Illinois T. & S. Bank (1898) 170 U. S. 283, 293, 294, 18 Sup. Ct. 594, 598, 599, 42 L. ed. 1037; and see citations in remainder of this section. 20 Louisville & N. R. Co. v. Melton (1910) 218 U. S. 36, 52, 30 Sup. Ct. 676, 680, 54 L. ed. 921. "The very idea of classification is that of inequal- ity, so that it goes without saying that the fact of inequality in no manner determines the matter of constitutionality:" Atchison, T. & S. F. R. Co. V. Matthews (1899) 174 U. S. 96, 106, 19 Sup. Ct. 609, 613, 43 L. ed. 909. GENERAL EXTENT OF RESTRAINT. 259 the laws.^^ Moreover, a classification need not be scien- tific nor logically appropriate. If it is not palpably arbi- trary, but is uniform within the class, it is constitution- al.22 21 Brown-Forman Co. v. Kentucky (1910) 217 U. S. 563, 573, 30 Sup. Ct. 578, 580, 54 L. ed. 883; Rosenthal v. New York (1912) 226 U. S. 260, 270, 33 Sup. Ct. 27, 30, 57 L. ed. 212. "The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimina- tion, or the oppression or spoliation of a particular class:" Holden v. Hardy (1898) 169 U. S. 366, 398, 18 Sup. Ct. 383, 390, 42 L. ed. 780.— "A state does not deny the equal protection of the laws merely by adjusting its revenue laws and taxing system in such a way as to favor certain indus- tries or forms of industry. Like the United States, although with more restriction and in less degree, a state may carry out a policy, even a policy with which we might disagree. It may make discriminations, if founded on distinctions which we cannot pronounce unreasonable and purely arbi- trary:" Quong Wing v. Kirkendall (1912) 223 U. S. 59, 62, 32 Sup. Ct. 192, 193, 56 L. ed. 350. And see cases there cited; Central L. Co. v. South Dakota (1912) 226 U. S. 157, 160, 33 Sup. Ct. 66, 67, 57 L. ed. 164; Grif- fith v. Connecticut (1910) 218 U. S. 563, 31 Sup. Ct. 132, 54 L. ed. 883; Michigan C. R. Co. v. Powers (1906) 201 U. S. 245, 293, 26 Sup. Ct. 459, 462, 50 L. ed. 744; Barbier v. Connolly (1885) 113 U. S. 27, 31, 32, 5 Sup. Ct. 357, 359, 360, 28 L. ed. 923 ; and cases in notes 34-39, infra. 22 Mutual L. Co. V. Martell (1911) 222 U. S. 225, 235, 32 Sup. Ct. 74, 75, 56 L. ed. 175. "Classification must have relation to the purpose of the leg- islature. But logical appropriateness of the inclusion or exclusion of ob- jects or persons is not required. . . . Exact wisdom and nice adapta- tion are not required by the Fourteenth Amendment, nor the crudeness nor the impolicy nor even the injustice of state laws redressed by it:" Heath & Milligan Mfg. Co. v. Worst (1907) 207 U. S. 338, 354, 28 Sup. Ct. 114, 119, 52 L. ed. 236. "The selection, in order to become obnoxious to the Fourteenth Amendment, must be arbitrary and unreasonable; not merely possibly, but clearly and actually so:" Bachtel v. Wilson (1907) 204 U. S. 36, 41, 27 Sup. Ct. 243, 245, 51 L. ed. 357. "Classification ... is not invalid because not depending on scientific or marked differences in things or persons in their relations. It suffices if it is practical, and is not reviewable unless palpably arbitrary:" Orient Ins. Co. v. Daggs (1899) 172 U. S. 557, 562, 19 Sup. Ct. 281, 282, 43 L. ed. 552. "Great constitu- tional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that leg- islatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts:" Missouri, K. & T. Rj'. C<^. v. May (1904) 194 U. S. 267, 270, 24 Sup. Ct. 638, 639, 48 L. ed. 971. There 260 THE EQUAJL PROTECTION PROVISION. While the court may, within the limits pointed out, in- quire whether the classification is based on justifiable distinctions, considering the purpose of the law and the means to be observed to effect that purpose,^ ^ the legisla- ture is the only judge of the policy of a proposed discrim- ination. When it has decided upon a measure, its action cannot be disturbed by the courts under the Fourteenth Amendment unless they can see clearly that there is no fair reason for the law that would not require with equal force its extension to others whom it leaves untouched.-^ is "no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities. And necessarily so. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things:" Magoun v. Illinois T. & S. Bank (1898) 170 U. S. 283, 296, 18 Sup. Ct. 594, 599, 42 L. ed. 1037. The provision "at the most can only be held to restrain such an exercise of power as would exclude the conception of judgment and discretion, and which would be so obviouslj^ arbitrary and unreasonable as to be beyond the pale of governmental authority:" Campbell v. California (1906) 200 U. S. 87, 95, 26 Sup. Ct. 182, 185, 50 L. ed. 382. "The problems of govern- ment are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always dis- cernible; the wisdom of any choice may be disputed or condemned. Mere errors of judgment are not subject to our judicial review:" Metropolis T. Co. V. Chicago (1913) 228 U. S. 61, 69, 70, 33 Sup. Ct. 441, 443, 57 L. ed. 730. See also Keeney v. New York (1912) 222 U. S. 525, 537, 32 Sup. Ct. 105, 107, 56 L. ed. 299; Louisville & N. R. Co. v. Melton (1910) 218 U. S. 36, 55, 30 Sup. Ct. 676, 681, 54 L. ed. 921; and note 17, supra. 23 See St. John v. New York (1906) 201 U. S. 633, 636, 26 Sup. Ct. 554, 555, 50 L. ed. 896; Southern Ry. Co. v. Greene (1910) 216 U. S. 400, 417, 30 Sup. Ct. 287, 291, 54 L. ed. 536; Holden v. Hardy (1898) 169 U. S. 366, 398, 18 Sup. Ct. 383, 390, 42 L. ed. 780; Gulf, C. & S. F. Ry. Co. v. Ellis (1897) 165 U. S. 150, 155, 159, 165, 17 Sup. Ct. 255, 257, 258, 261, 41 L. ed. 666. 24 Williams v. Arkansas (1910) 217 U. S. 79, 90, 30 Sup. Ct. 493, 495, 54 L. ed. 673; Barrett v. Indiana (1913) 229 U. S. 26, 30, 33 Sup. Ct. 692, 693, 57 L. ed. 1050; Citizens' T. Co. v. Fuller (1913) 229 U. S. 322, 33 Sup. Ct. 833, 57 L. ed. 1206; Chicago D. & C. Co. v. Fraley (1913) 228 U. S. 680, 086, 33 Sup. Ct. 715, 716, 57 L. ed. 1022; Mutual L. Co. v. Martell (1911) 222 U. S. 225, 235, 236, 32 Sup. Ct. 74, 75, 56 L. ed. 175; Lindsley v. Na- tural C. G. Co. (1911) 220 U. S. 61, 78, 31 Sup. Ct. 337, 340, 55 L. ed. BEAKING ON RATE REGULATION. 261 BEARING OF PROVISION ON RATE REGULATION. In general. 141. We shall not attempt to consider in detail the de- cisions of the court under the equal protection provision.^^ It is sufficient to note merely those which have the most direct bearing upon rate regulation. We have already seen that a state may not require rail- road companies to transport passengers or freight at rates which are unreasonably low.^^ This statement is indefi- nite, for it does not show precisely what are the limits to rate regulation, but it must suffice for the present. In a subsequent chapter ^"^ we shall consider at length the rules which are observed by the court in determining whether or not rates are so low as to be unconstitutional. Power to limit rates. 142. The provision, it has been held, does not forbid the states to place limitations upon the charges for railroad transportation ; ^^ the state may limit the rates of water 369; Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 280, 281, 29 Sup. Ct. 50, 55, 53 L. ed. 176; Missouri, K. & T. Ry. Co. v. May (1904) 194 U. S. 267, 269, 24 Sup. Ct. 638, 639, 48 L. ed. 971; Finley v. California (1911) 222 U. S. 28, 32 Sup. Ct. 13, 56 L. ed. 75; see also Bradley v. Rich- mond (1913) 227 U. S. 477, 33 Sup. Ct. 318, 57 L. ed. 603; Metropolis T. Co. V. Chicago (1913) 228 U. S. 61, 70, 33 Sup. Ct. 441, 443, 57 L. ed. 730; and language of Holmes, J., in Interstate C. S. Ry. Co. v. Commonwealth (1907) 207 U. S. 79, 85, 28 Sup. Ct. 26, 27, 52 L. ed. 111. Compare Louis- ville & N. R. Co. V. Railroad Comn. (1912) 196 Fed. 800, 818. 25 Many decisions are cited in Patterson, The United States and the States Under the Constitution, 2d ed., sec. 131. 26 See note 15, supra. 27 Chapter 6, infra. 28 St. Louis & S. F. Ry. Co. v. Gill (1895) 156 U. S. 649, 15 Sup. Ct. 484, 39 L. ed. 567; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014; Smyth v. Ames (1898) 171 U. S. 361, 18 Sup. Ct. 888, 43 L. ed. 197; Atlantic C. L. R. Co. v. Florida (1906) 203 U. S. 256, 27 Sup. Ct. 108, 51 L. ed. 174; Minneapolis & St. L. R. Co. v. Min- 262 THE EQUAL PROTECTION PROVISION. supply compardes,^^ gas companies ^'^ and telephone com- panies,^^ and it may fix the tolls which may be charged by turnpike companies,^^ and the rates which may be charg- ed by grain elevator compauies.^^ Classification of railroads for rate regulation. 143. Moreover, a state may classify its railroads for the purpose of rate regulation. Thus it may place limitations upon roads over a stated length which do not apply to roads under that length ;-^^ it may place limitations upon roads in one part of the state which do not apply to roads nesota (1902) 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151. See also Chi- cago, M. & St. P. Ry. Co. V. Tompkins (1900) 176 U. S. 167, 20 Sup. Ct. 336, 44 L. ed. 417; Louisville & N. R. Co. v. Kentucky (1902) 183 U. S. 503, 22 Sup. Ct. 95, 46 L. ed. 298. . 29 Stanislaus County v. San Joaquin & K. R. C. & I. Co. (1904) 192 U. S. 201, 24 Sup. Ct. 241, 48 L. ed. 406. 30 Cedar R. G. L. Co. v. Cedar Rapids (1912) 223 U. S. 655, 32 Sup. Ct. 389, 56 L. ed. 594; Willcox v. Consolidated G. Co. (1909) 212 U. S. 19, 29 Sup. Ct. 192, 53 L. ed. 382. 31 Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 29 Sup. Ct. 50, 53 L. ed. 176. 32 Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 17 Sup. Ct 198, 41 L. ed. 560. 33Munn V. Illinois (1876) 94 U. S. 113, 24 L. ed. 77; Budd v. New York (1892) 143 U. S. 517, 12 Sup. Ct. 468, 36 L. ed. 247; Brass v. North Dakota (1894) 153 U. S. 391, 14 Sup. Ct. 857, 38 L. ed. 757. 34 Dow V. Beidelman (1888) 125 U. S. 680, 8 Sup. Ct. 1028, 31 L. ed. 841; Chesapeake & O. Ry. Co. v. Conley (1913) 230 U. S. 513, 33 Sup. Ct. 985, 57 L. ed. 1597. See also Consumers' League v. Colorado & S. Ry. Co. (1912) 53 Colo. 54, 125 Pac. 577; Southern Ry. Co. v. Hunt (1908) 42 Ind. App. 90, 102 et seq., 83 N. E. 721, 726, 727. In New Y., N. H. & H. R. Co. V. New York (1897) 165 U. S. 628, 17 Sup. Ct. 418, 41 L. ed. 853, it was held that a state may regulate the heating of steam passenger cars, al- though at the same time it declares that the regulations shall not apply to railroads less than fifty miles in length ; and in Chicago, R. I. & P. Ry. Co. V. Arkansas (1911) 219 U. S. 453, 31 Sup. Ct. 275, 55 L. ed. 290, the court sustained a full crew law which did not apply to railroads less than fifty miles in length. Compare Louisville & N. R. Co. v. Railroad Comn. of Ala- bama (1912) 196 Fed. 800, 817. BEAHING ON RATE REGULATION. 263 in another portion ;^^ and it may classify its railroads ac- cording to the amount ^"^ or character ^"^ of business trans- acted.^^ And the state may even make rate regulations which apply only to particular roads.-"^^ 35 Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 17 Sup. Ct. 198, 41 L. ed. 560. See also Budd v. New York (1892) 143 U. S. 517, 12 Sup. Ct. 468, 36 L. ed. 247: Railroad Co. v. Richmond (1877) 96 U. S. 521, 24 L. ed. 734; Gardner v. Michigan (1905) 199 U. S. 325, 26 Sup. Ct. 106, 50 L. ed. 212; Missouri v. Lewis (1879) 101 U. S. 22, 25 L. ed. 989. Compare Louisville & N. R. Co. v. Railroad Comn. of Alabama (1912) 196 Fed. 800, 817. 36 Chicago, B. & Q. R. Co. v. Iowa (1876) 94 U. S. 155, 163, 164, 24 L. ed. 94 (affirming Chicago, B. & Q. R, Co. v. Attorney-General (1875) Fed. Cas. No. 2666) ; Wellman v. Chicago & G. T. Ry. Co. (1890) 83 Mich. 592, 47 N. W. 489; Citizens' T. Co. v. Fuller (1913) 229 U. S. 322, 33 Sup. Ct. 833, 57 L. ed. 1206. See also Coal & C. Ry. Co. v. Conley (1910) 67 W. Va. 129, 67 S. E. 613. 37 Consumers' League v. Colorado & S. Ry. Co. (1912) 53 Colo. 54, 125 Pac. 577; Southern Ry. Co. v. Hunt (1908) 42 Ind. App. 90, 102-105, 83 N. E. 721, 726, 727. See also Chesapeake & 0. Ry. Co. v. Conley (1913) 230 U. S. 513, 33 Sup. Ct. 985, 57 L. ed. 1597; Engel v. O'Malley (1911) 219 U. S. 128, 138, 31 Sup. Ct. 190, 193, 55 L. ed. 128; People v. New Y. S. B. of T. Comrs. (1905) 199 U. S. 1, 47, 25 Sup. Ct. 705, 713, 50 L. ed. 65; Savannah, T. & I. of H. Ry. v. Savannah (1905) 198 U. S. 392, 25 Sup. Ct. 690, 49 L. ed. 1097; Metropolis T. Co. v. Chicago (1913) 228 U. S. 61, 33 Sup. Ct. 441, 57 L. ed. 730. 38 Compare Louisville & N. R. Co. v. Railroad Comn. of Alabama (1912) 196 Fed. 800, 817. 39 Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 280, 29 Sup. Ct. 50, 55, 53 L. ed. 176; Southern I. Ry. Co. v. Railroad Comn. (1909) 172 Ind. 113, 127, 87 N. E. 966, 971; Houston & T. C. R. Co. v. Storey (1906) 149 Fed. 499, 504. See also Ames v. Union P. Ry. Co. (1894) 64 Fed. 165. Compare Houston & T. C. R. Co. v. Storey, supra, and also Cotting v. Kan- sas C. S. Y. Co. (1901) 183 U. S. 79, 102, 22 Sup. Ct. 30, 40, 46 L. ed. 92, in the latter of which the court declared unconstitutional a statute which, although general in its terms, was designed to limit the charges of a single stock yards company and which did not limit the charges which might be made by similar companies doing less business. It is questionable, however, whether the business of the stock yards company was so far analogous to that of a railroad company that the decision would be applicable to cases of railroad transportation. 264 THE EQUAL PROTECTION PROVISION. Other regulation of railroads. 144. So also a state may forbid its railroads to charge more for a shorter than for a longer haul including the same route except by permission of the railroad commis- sion.^^ And a state may require the railroad companies to meet the expenses of the state railroad commission,^^ and the electric companies to meet the salaries of the subway commissioners.'*^ Neither requirement, it has been held, violates the equal protection provision. EXCESSIVE PENALTIES. 145. The court has, however, declared unconstitutional a statute which imposed upon railroads and railroad em- ployees who should exact higher rates than were ordained by the state penalties which would be so large in the ag- gregate that the railroads and their employees would comply with the statutes and orders relating to rates rather than contest the validity of the rates in actions at law.*3 40 Louisville & N. R. Co. v. Kentucky (1902) 183 U. S. 503, 22 Sup. Ct. 95, 46 L. ed. 298. See also Alabama & V. Ry. Co. v. Mississippi R. Comn. (1906) 203 U. S. 496, 27 Sup. Ct. 163, 51 L. ed. 289, which arose under the due process provision of the Fourteenth Amendment. 41 Charlotte, C. & A. R. Co. v. Gibbes (1892) 142 U. S. 386, 12 Sup. Ct. 255, 35 L. ed. 1051. See also St. Mary's F.-A. P. Co. v. West Virginia (1906) 203 U. S. 183, 27 Sup. Ct. 132, 51 L. ed. 144. 42 New York v. Squires (1892) 145 U. S. 175, 12 Sup. Ct. 880, 36 L. ed. 666. 43 Ex parte Young (1908) 209 U. S. 123, 28 Sup. Ct. 441, 52 L. ed. 714, 13 L. R. A. N. S. 932. See also Missouri P. Ry. Co. v. Tucker ( 1913) 230 U. S. 340, 33 Sup. Ct. 961, 57 L. ed. 1507; Southern P. Co. v. Campbell (1913) 230 U. S. 537, 33 Sup. Ct. 1027, 57 L. ed. 1610; Willcox v. Consolidated G. Co. (1909) 212 U. S. 19, 53, 54, 29 Sup. Ct. 192, 200, 53 L. ed. 382; Portland Ry., L. & P. Co. V. Portland (1912) 201 Fed. 119; Ex parte Wood (1907) 155 Fed. 190 (affirmed in Hunter v. Wood (1908) 209 U. S. 205, 28 Sup. Ct. 472, 52 L. ed. 747) ; Consolidated G. Co. v. Mayer (1906) 146 Fed. 150. EXCESSIVE PENALTIES. 265 The court was not satisfied to take the position that if the rates imposed were so low that for that reason they would be unconstitutional their enforcement might under the circumstances be restrained by an action in equity in a federal court. It went further and said that the fact that such large penalties were imposed of itself was suf- ficient to render the act unconstitutional as denying to the railroads and the railroad employees the equal protection of the laws. The reasons advanced in support of the decision are in part at least very unsatisfactory.^^ It seems, however, that the decision may be properly based upon the pro- vision for the equal protection of the laws. Compare Waters-Pierce Oil Co. v. Texas (1909) 212 U. S. 86, 111, 29 Sup. Ct. 220, 227, 53 L. ed. 417; Weems v. United States (1910) 217 U. S. 349, 30 Sup. Ct. 544, 54 L. ed. 793; Boise A. H. & C. W. Co. v. Boise City ( 1909) 213 U. S. 276, 29 Sup. Ct. 426, 53 L. ed. 796; Excessive Penalties Affecting the Validity of Maximum Rate Legislation, 70 Cent. L. J. 381; O'Neil v. Vermont (1892) 144 U. S. 323, 12 Sup. Ct. 693, 36 L. ed. 450. In the case last cited heavy penalties were imposed: the equal protection provision, however, was not invoked. See also note 46, infra. 44 The court takes the position that until it has passed upon a law or order limiting rates the essential steps in its enactment have not been fully complied with. Thus the opinion does not show a clear realization of the fact that rate regulation is not judicial in its nature: see discussion in sections 32-34, 51, 60, supra. And the court quotes with approval the fol- lowing peculiar language in Cotting v. Kansas C. S. Y. Co. (1901) 183 U. S. 79, 102, 22 Sup. Ct. 30, 39, 40, 46 L. ed. 92, "It is doubtless true that the state may impose penalties, such as will tend to compel obedience to its mandates by all, individuals or corporations, and if extreme and cumu- lative penalties are imposed only after there has been a final determina- tion of the validity of the statute, the question would be very different from that here presented." — Compare Roe, Our Judicial Oligarchy, 63-68; Southern Ry. Co. v. Hunt (1908) 42 Ind. App. 90, 99, 83 N. E. 721, 725; Smalley, Railroad Rate Control (Publications of the American Econ. Assn.) 114-117; Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 16, 29 Sup. Ct. 148, 153, 53 L. ed. 371; Louisville & N. R. Co. v. Railroad Comn. (1912) 196 Fed. 800 (where the case was pending five years) ; Collins, The Fourteenth Amendment and the States, 132, 136, 154, 158; Hadley, The Eleventh Amendment, 66 Cent. L. J. 71, 76; Ransom, Majority Rule and the Judiciary, 62; note 35 in Chapter 6, infra. 266 THE EQUAL PROTECTION PROVISION. And the court might have passed over any discussion of the Fourteenth Amendment and said broadly that where the constitutionality of a statute is involved— in this case, e. g., upon the ground that the rates imposed were so low as to be unconstitutional for that reason— there is a right to resort to a federal court which does not rest upon state legislation and which a state cannot take away, and for the exercise of which a state cannot penal- ize a litigant.*^ Or the court might have so construed the statute that the penal clause became wholly inapplicable to a railroad company upon the institution by it, in good faith, of a suit to test the validity of the act, or have held that if the penal clause were void for obstruction of remedy it was not void to all intents and purposes, but only in so far as it so operated.**^ REASONABLENESS AND JUST COMPENSATION. 146. We have already examined the proposition that the due process clause of the Fourteenth Amendment pro- hibits the enactment of substantive legislation which is clearly unreasonable*'^ and the proposition that that clause prohibits the taking of private property for public use «See Herndon v. Chicago, R. I. & P. Ry. Co. (1910) 218 U. S. 135, 158, 30 Sup. Ct. 633, 639, 54 L. ed. 970; and also Seaboard A. L. Ry. Co. a. Railroad Comn. (1907) 155 Fed. 792; Singewald, The Doctrine of Non- suability of the State in the United States, 28 Johns Hopkins University Studies, 93. Consider discussion in sec. 22, supra, on the proper limits of this proposition. But compare Singewald, op. cit., 101, where the position is taken that federal statutes forbid federal courts to take such action as was taken in Ex parte Young. 46 See Coal & C. Ry. Co. v. Conley (1910) 67 W. Va. 129, 157, 67 S. E. 613, 625, where the court takes this position and supports it with discus- sion; and also Chesapeake & O. Ry. Co. v. Conley (1913) 230 U. S. 513, 33 Sup. Ct. 985, 57 L. ed. 1597; Excessive Penalties Affecting the Validity of Maximum Rate Legislation, 70 Cent. L. J. 381. 47 See sees. 105-118, supra. REASONABLENESS AND JUST COMPENSATION. 267 without just compensation,^^ and we have seen that no sufficient reason has been advanced in support of either proposition. It seems, however, that the court might with far more propriety declare that the equal protection provision au- thorizes the court to inquire whether substantive state legislation which is not universal in its scope is clearly unreasonable,^^ and that that provision requires the pay- ment of just compensation when private property is taken for public use. It is not justifiable for the court, without advancing strong reasons for its position, to say that the due process provision of the Fourteenth Amendment in- cludes a requirement of just compensation, in view of the fact that the Fifth Amendment provides for due process and just compensation separately.^*^ But there is no such objection to reaching the conclusion, through lines of rea- soning which are not difficult, that the equal protection provision is more comprehensive than the earlier provi- sion for just compensation, that it includes a require- ment of just compensation, and that therefore it was not necessary to express the just compensation requirement in a separate provision as was done in the Fifth Amend- ment. We must, however, remember that the court has said that the Fourteenth Amendment was not intended to change the whole theory of the relations of the state and federal governments to each other and of both govern- ments to the people.^^ 48 See sees. 119-126, supra. 49 See sec. Ill, supra. 50 See sees. 88, 126, supra. 51 See note 51 in Chapter 4, supra. Consider also Money, On the Question of the Validity of the Fourteenth Amendment to the Constitution, 71 Cent. L. J. 112; note in 30 Am. L. Rev. 894-897. CHAPTER VI. JUST COMPENSATION. INTRODUCTORY. 147. Provision in Fifth Amendment. 148. Due process and just compensation. 149. Equal protection and just compensation. 150. Bearing of requirement upon rate regulation. 151. Unreasonable or discriminatory regulations. 152. Not enforcing common law. 153. Indemnification by government so far as reductions are undue. 154. AMOUNT OF RETURN. VALUE OF PROPERTY. 155. Present value of property. 156. Cost and capitalization not to be considered. 157. Producing plant equally efficient. 158. Significance of term "present time." 159. Tangible property. 160. Cost of corporation itself. 161. Cost of business of corporation. 162. Capitalization of earning capacity. 163. Stock and bonds. 164. Value as system. 165. Apportionment of value. 166. Particular classes of traffic. 167. Unprofitable parts of the property. 168. Smyth v. Ames criticized. 169. Rough estimates of value. 170. Summary as to value. OPERATING EXPENSES. 171. General principles. 172. Transportation. 173. Maintenance. 174. Payments to stockholders and bondholders. NET EARNINGS. 175. What earnings are to be considered. 176. Proving amount of earnings. 177. Rates fair to public. 178. Rates fair to railroad. 179. Constitutional rate of return. 268 INTRODUCTORY. 269 180. No particular rate fixed by Supreme Court. 181. Other decisions in conflict. 182. Distribution between stockholders and bondholders. 183. EXCEPTIONAL CONDITIONS. PARTICULAR RATES. 184. Decisions that only schedule as entirety may be considered. 185. Decisions on particular rates. 186. Discussion on considering merely schedule as entirety. 187. Mileage books. INTRODUCTORY. Provision in Fifth Amendment. 147. The Fifth Amendment contains the provision ' ' nor shall private property be taken for public use without just compensation. ' ' This clause, of course, applies only to the organs of the federal government.^ And apparently no decision of the Supreme Court in rate cases has ever been based upon it. Due process and just compensation. 148. The court has, however, frequently declared that a similar requirement of just compensation is placed upon the states by the due process clause of the Four- teenth Amendment ; ^ and presumably it would hold that the due process clause of the Fifth Amendment places a similar restraint upon the federal government.^ While the reasons advanced in support of this position are un- convincing,^ such is the position of the court. Equal protection and just compensation. 149. We have also pointed out that the court might 1 See Chapter 3, notes 1, 2, 21 et seq. 2 See Chapter 4, note 160 et seq. 3 See Chapter 3, note 6. 4 See sees. 119-126, supra. 270 JUST COMPENSATION. more properly base upon tlie equal protection provision its decision that a state may not take private property for public use without just compensation.^ Bearing of requirement upon rate regulation. 150. This requirement, it has been held, while it does not take away the power of the government to reduce railroad rates,^ does limit that power." The extent to which the power is limited is discussed in a num- ber of cases which were decided under the due process provision or the equal protection provision; but as the de- cisions to which we shall now refer are all based upon the proposition that the Constitution requires the pay- ment of just compensation when private property is taken for public use, those decisions may be examined most ap- propriately in the present chapter. Unreasonable or discriminatory regulations. 151. It is conceivable that rates which would yield what abstractly considered would be just compensation to the earner might be in other respects so unreasonable 5 See sees. 146, 136, supra. 6 See sec. 142, supra; 22 Harv. L. Rev. at 263; Munn v. Illinois (1874) 94 U. S. 113, 125, 24 L. ed. 77; Railroad Co. v. Richmond (1877) 96 U. S. 521, 529, 24 L. ed. 734; Transportation Co. v. Chicago (1878) 99 U. S. 635, 642, 25 L. ed. 336. 7 See sees. 119, 138, supra. In view of these decisions it is not necessary for us to consider such questions as whether the clause relates to rate regula- tion: see Smalley, Railroad Rate Control (Publications of Am. Econ. Assn.) 89 et seq.; whether railroad property is "private" property within the meaning of the Amendment: see Western U. T. Co. v. Pennsylvania R. Co. (1904) 195 U. S. 540, 25 Sup. Ct. 133, 49 L. ed. 312; whether the im- posing of regulations which under normal circumstances allow less than a stated rate of return to the carrier can be considered a "taking" within the meaning of the Constitution ; and whether the fixing of the charges for carrying for members of the general public may constitute a violation of the prohibition of the taking for a "public" use: see Noble State Bank v. Haskell (1911) 219 U. S. 575, 580, 31 Sup. Ct. 299, 300, 55 L. ed. 341. INTRODUCTORY. 271 or SO discriminatory as to be held unconstitutional.* Even where the carrier did not raise the question, it is possible that the objection might be raised by shippers or passen- gers in one part of the state or one part of the country or by one or more classes of shippers or classes of passen- gers.^ A railroad company, however, cannot contest the validity of a regulation upon the ground that it affects unconstitutionally a patron of that company.^*' Not enforcing common law. 152. By way of caution it may be added that in enforc- ing the provisions to which we have referred the court is simply enforcing constitutional restraints. It does not say that in spite of legislative or administrative action the rights and duties of carriers are still to be measured by the common law. It is not declaring that legislative or administrative action which departs from the common law is invalid. It could not justifiably take any such po- sition.^ ^ And, therefore, decisions concerning the com- mon law restraints upon common carriers are not strictly in point. Indemnification by government so far as reductions are undue. 153. An able writer upon the subject ^^ has pointed out 8 See sees. 89, 118, 121, 137, supra. And compare Portland Ry., L. & P. Co. V. Railroad Comn. of Oregon (1913) 229 U. S. 397, 33 Sup. Ct. 820, 57 L. ed. 1248. 9 See, however. Board of R. Comrs. v. Symns Grocer Co. (1894) 53 Kan. 207, 35 Pac. 217; Brooklyn U. G. Co. v. New York (1906) 111 N. Y. App. Div. 70, 100 N. Y. Supp. 570. 10 Interstate Com. Comn. v. Chicago, R. I. & P. Ry. Co. (1910) 218 U. S. 88, 30 Sup. Ct. 651, 54 L. ed. 946. See also note 71 in Chapter 9, infra. 11 See sec. 33, supra. 12 Smalley, Railroad Rate Control (Publications of Am. Econ. Assn.) p. 53, note, chap. 7. 272 JUST COMPENSATION. that the railroad is not necessarily entitled to just com- pensation from the shippers for services rendered, but that if the government should provide for governmental indemnification of the carrier for losses if the reductions in rates should be found to be undue in so far as they were undue the statute would be constitutional regardless of the extent of the reduction of rates, and no injunction per- manent or temporary restraining its enforcement could be granted upon the ground that it violated the requirement of just compensation. This position seems to be thor- oughly sound,^^ for it is not necessary for the govern- ment to make compensation for property taken in ad- vance of the actual taking or even at the time when that property is taken. ^^ AMOUNT OF RETURN. 154. If a state or the federal government should at- tempt to limit all of the charges for transportation by a railroad which were subject to that government, the schedule of rates as an entirety might be attacked upon the ground that it did not yield to the carrier the rate of return to which it was entitled under the Constitution. In support of this contention the carrier or the creditor or stockholder of the carrier who brought the action should show the value of the property used in its business as a carrier and the net earnings.^ ^ Those are the normal 13 See also Manigault v. Springs (1905) 199 U. S. 473, 485, 486, 26 Sup. Ct. 127, 132, 136, 50 L. ed. 274. i4Crozier v. Fried. Krupp Aktiengesellschaft (1912) 224 U. S. 290, 306, 24 Sup. Ct. 488, 492, 56 L. ed. 771. 15 Of course, in arriving at the amount of the net earnings it would be necessary to show the amount of the gross earnings and the proportion of the gross earnings whicli might be properly expended as operating ex- penses. VALUE OF PROPERTY. 273 factors in determining the validity of the schedule as an entirety although other factors not inconsistent with them may modify the conclusions to be drawn from the normal factors or may lead to entirely different conclu- sions. Those other possible factors vary according to the circumstances existing in each particular case. VALUE OF PROPERTY. Present value of property. 155. The value of the property upon which the carrier is entitled to earn a revenue is the value of the property actually used in its business at the time when the traffic is carried. This statement rests upon several recent opin- ions of the Supreme Court; ^^ and while there may be 16 In Lincoln G. & E. L. Co. v. Lincoln (1912) 223 U. S. 349, 358, 32 Sup. Ct. 271, 272, 56 L. ed. 466, the court said, "That the company is entitled to a fair return upon the value of the property at the time of the inquiry, is the rule." In Willcox v. Consolidated Gas Co. (1909) 212 U. S. 19, 41, 62, 29 Sup. Ct. 192, 195, 200, 53 L. ed. 382, the court said, "There must be a fair return upon the reasonable value of the property at the time it is being used for the public The value of the property is to be determined as of the time when the inquiry is made regarding the rates. If the property, which legally enters into the consideration of the question of rates, has increased in value since it was acquired, the company is en- titled to the benefit of such increase. This is, at any rate, the general rule. We do not say there may not possibly be an exception to it, where the property may have increased so enormously in value as to render a rate permitting a reasonable return upon such increased value unjust to the public. How such facts should be treated is not a question now before us, as this case does not present it." In Knoxville v. Ivnoxville W. Co. (1909) 212 U. S. 1, 29 Sup. Ct. 148, 53 L. ed. 371, the court assumed that the basis of estimate was the value of the property as it then stood: the dis- cussion was concerning the method of ascertaining that value. See also Minnesota Rate Cases— Simpson v. SheparJ (1913) 230 U. S. 352, 434, 454, 457, 33 Sup. Ct. 729, 754, 762, 763, 57 L. ed. 1511, including quotation in note 21, infra; Stanislaus County v. San J. & K. R. C. & I. Co. (1904) 192 U. S. 201, 213, 215, 24 Sup. Ct. 241, 246, 247, 48 L. ed. 406; San Diego L. & T. Co. V. Jasper (1903) 189 U. S. 439, 442, 23 Sup. Ct. 571, 572, 47 L. ed. 892; San Diego L. & T. Co. v. National City (1899) 174 U. S. 739, 757, i8 274 JUST COMPENSATION. found in some earlier opinions language which does not altogether support that position/^ that basis of estimate 19 Sup. Ct. 804, 811, 43 L. ed. 1154; Smyth v. Ames (1898) 171 U. S. 361, 365, 18 Sup. Ct. 888, 889, 43 L. ed. 197. And see Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 412, 14 Sup. Ct. 1047, 1060, 38 L. ed. 1014. In harmony with the above cases is Railroad Comn. of La. v. Cumberhmd T. & T. Co. (1909) 212 U. S. 414, 29 Sup. Ct. 357, 53 L. ed. 577, which de- cides that if a portion of the amount set aside from gross earnings to cover depreciation was not spent for renewals but for extensions and additions, the portion of the depreciation fund so spent cannot be added to the amount upon which the company is entitled to earn revenue. Presumably the money was needed for a reserve fund to pay for renewals ultimately and its use for extensions and additions merely served to maintain the total value of the company's property and not to increase the total value of that property. 17 In Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151, the court speaks of a fair return upon the "capital invested" although it affirms the decision of the state court with- out commenting upon the objection in its opinion that "Defendant's counsel did show what the road had cost up to June 1, 1899 But not a particle of proof was presented as to the present value or cost of repro- duction," or upon the syllabus prepared by the state court which says, "Courts cannot assume that the cost of reproduction of a line of railway, or that the present, as compared with the original cost of construction, is the amount of stock and bonds outstanding, or that it is what the road has cost up to time of trial:" State ex rel. R. & W. Comn. v. Minneapolis & St. L. R. Co (1900) 80 Minn. 191, 83 N. W. 60. Cotting v. Kansas C. S. Y. Co. (1901) 183 U. S. 79, 91, 22 Sup. Ct. 30, 35, 46 L. ed. 92, involves charges by a stock yards company, but, as the court points out, the com- pany was engaged, not in performing public services, as are carriers, water companies, etc., but merely in performing services in which the public has an interest, so that there is merely dictum in the statement, "As to parties engaged in performing a public service .... tlie court .... has declared that the present value of the property is the basis by which the test of reasonableness is to be determined, although the actual cost is to be considered, and that the value of the services rendered to each indi- vidual is also to be considered." See also Smyth v. Ames (1898) 169 U. 8. 466, 546, 18 Sup. Ct. 418, 434, 42 L. ed. 819, quoted in see. 168, infra, and references to Smyth v. Ames in Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 435, 33 Sup. Ct. 729, 755, 57 L. ed. 1511. In a case concerning turnpike rates it Avas said that "the amount tliat may have been really and necessarily invested in the enterprise" should be con- sidered: Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 597, 17 Sup. Ct. 198, 205, 41 L. ed. 500. In Dow v. Beidelman (1888) 125 U. S. 680, 690, 8 Sup. Ct. 1028, 1030, 1031, 31 L. ed. 841, purchasers under fore- VALUE OF PROPERTY. 275 would unquestionably be used by the Supreme Court at the present day,^ ^ and it is the only conclusion which rests upon sound reason.^^ Cost and capitalization not to be considered. 156. As the court said in Smyth v. Ames,^" ''the rea- sonableness of a schedule of rates must be determined by the facts as they exist when it is sought to put such rates into operation. ' ' And this is true concerning the value of the property. If the government appropriated that prop- erty the extent of its duty would be to pay for the value which the property possessed at the time of the appro- priation; and in deciding whether a rate regulation is an closure relied upon the original cost of the road and the amount of bonds outstanding, but the court said, "It certainly cannot be presumed that the price paid at the sale under the decree of foreclosure equaled the original cost of the road, or the amount of outstanding bonded debt, without any proof of the sum invested by the reorganized corporation or its trustees. The court has no means, if it would under any circumstances have the power, of determining that the rate of three cents a mile fixed by the leg- islature is unreasonable." 18 Expressions of the lower courts to the same effect may be found — for example in the opinions in Western U. T. Co. v. State (1912) 31 Okla. 415, 419, 121 Pac. 1069, 1071; Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 433, 118 Pac. 354, 355, 38 L. R. A. N. S. 1209; Cumberland T. & T. Co. V. Louisville (1911) 187 Fed. 637, 642; Cedar Rapids G. L. Co. V. Cedar Rapids (1909) 144 Iowa, 426, 432, 120 N. W. 966, 968; San J. & K. R. C. & L Co. V. Stanislaus County (1908) 163 Fed. 567, 575; Consoli- dated Gas Co. V. New York (1907) 157 Fed. 849, 855; Spring V. W. v, San Francisco (1904) 165 Fed. 657, 680, 697; Brunswick & T. W. Dist. v. Maine W. Co. (1904) 99 Me. 371, 380, 59 Atl. 537, 540; Matthews v. Board of Corp. Comrs. of N. C. (1901) 106 Fed. 7, 9; Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 373, 374, 72 N. W. 713, 715; and cases in note 31, infra. And see Whitten, Valuation of Public Service Corpora- tions, chap. 6. Compare authorities cited in Whitten, op. cit., chap. 5. 19 Other bases are discussed in Wyman, Public Service Corporations, p, 967 et seq. 20 (1898) 171 U. S. 361, 365, 18 Sup. Ct. 888, 889, 43 L. ed. 197, modi- fying the decision in the same case (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819. 276 JUST COMPENSATION. appropriation of the railroad's property pro tanto the value of the property certainly ought to be estimated upon the same basis. Of course, the present value of the property may be either less or greater than the amount of money which was actually invested in the railroad.^ ^ Mistakes of con- sHn Minnesota Rate Cases— Simpson v. Sliepard (1913) 230 U. S. 352, 454, 33 Sup. Ct. 729, 762, 57 L. ed. 1511, the court says, "It is clear that in ascertaining the present value we are not limited to the consideration of the amount of the actual investment. If that has been reckless or improvi- dent, losses may be sustained which the community does not underwrite. As the company may not be protected in its actual investment, if the value of the property be plainly less, so the making of a just return for the use of the property involves the recognition of its fair value if it be more than it cost. The property is held in private ownership, and it is that property, and not the original cost of it, of which the owner may not be deprived without due process of law." In Stanislaus County v. San Joa- quin & K. R. C. & I. Co. (1904) 192 U. S. 201, 214, 24 Sup. Ct. 241, 246, 48 L. ed. 406, the court says, "The original cost may have been too great; mistakes of construction, even thovigh honest, may have been made, which necessarily enhanced the cost; more property may have been acquired than necessary or needful for the purpose intended. Other circumstances might exist which would show the original rates much too large for fair or rea- sonable compensation at the present time." The court then points out that mistakes of the chief engineer had cost the company a large amount of money. In San Diego L. & T. Co. v. National City (1899) 174 U. S. 739, 757, 19 Sup. Ct. 804, 811, 43 L. ed. 1154, the court declares that "The property may have cost more than it ought to have co.st, and its outstand- ing bonds for money borrowed and which went into the plant may be in excess of the real value of the property." See also In re Advances in Rates —Eastern Case (1911) 20 I. C. C. 243, 257, 258; San Diego L. & T. Co. v. Jasper (1903) 189 U. S. 439, 442, 23 Sup. Ct. 571, 572, 47 L. ed. 892; Rea- gan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 412, 14 Sup. Ct. 1047, 1060, 38 L. ed. 1014; Dow v. Beidelman (1888) 125 U. S. 680, 690, 8 Sup. Ct. 1028, 1030, 1031, 31 L. ed. 841; authorities cited in Whitten, Valuation of Public Service Corporations, p. 84 et seq., and in Wyman, Public Ser- vice Corporations, pp. 967 et seq., 991, 992, 995; Robinson Railway Pas- senger Rates, 16 Yale Rev. 341, 369; Louisville & N. R. Co. v. Railroad Comn. of Alabama (1912) 196 Fed. 800, 820, 822; Shepard v. Northern P. Ry. Co. (1911) 184 Fed. 765, 803; Cumberland T. & T. Co. v. Louisville (1911) 187 Fed. 637, 642, 644; Consolidated G. Co. v. New York (1907) 157 Fed. 849, 855, 861; Brunswick & T. W. Dist. v. Maine W. Co. (1904) i'9 Me. 371, 378, 379, 59 Atl. 537, 540; Steenerson v. Great N. Ry. Co. (1897) 09 Minn. .353, 373, 374, 72 N. W. 713, 715; Griffin v. Goldsboro W. VALUE OF PROPERTY. 277 struction may have been made; structures or equipment may have depreciated or become obsolete ; ^^ or some ca- tastrophe, even, may have destroyed millions of dollars worth of property.^^ Or, on the other hand, the funds of the company may have been spent so wisely, the cost of materials and labor may have so increased, or the terri- tory through which the railroad runs may have been so developed, that the resources of the company are worth far more than the amount of the actual investments^ And what is true concerning investment is still more true concerning capitalization.^^ Stock may have been watered; hopes may have been capitalized; money may have been spent extravagantly or dishonestly.-^ Or, on the other hand, stock may have been issued above par; betterments may have been paid for largely out of cur- Co. (1898) 122 N. C. 206, 211, 30 S. E. 319, 320, 41 L. R. A. 240, 242; Capital C. G. Co. v. Des Moines (1896) 72 Fed. 829; Missouri P. Ry. Co. v. Smith (1895) 60 Ark. 221, 29 S. W. 752. Compare note 30, infra. 22 See sec. 157, infra. 23 See Spring V. W. Co. v. San Francisco (1908) 165 Fed. 667, 712. 24 See In re Advances in Rates— Western Case (1911) 20 I. C. C. 307, 338; quotation from Willcox v. Consolidated Gas Co. (1909) 212 U. S. 19, 52, 29 Sup. Ct. 192, 200, 53 L. ed. 382, in note 16, supra. Compare note 28, infra. 25 On this paragraph in general see Wyman, Public Service Corpora- tions, p. 976 et seq.; Report of Industrial Commission, vol. 19, p. 405 et seq.; San Diego L. & T. Co. v. National City (1899) 174 U. S. 739, 757, 19 Sup. Ct. 804, 811, 43 L. ed. 1154; Smyth v. Ames (1898) 169 U. S. 466, 544, 18 Sup. Ct. 418, 433, 42 L. ed. 819; Dow v. Beidelman (1888) 125 U. S. 680, 690, 8 Sup. Ct. 1028, 1030, 1031, 31 L. ed. 841; Texas & P. Ry. Co. V. Railroad Comn. of La. (1911) 192 Fed. 280, 286; In re Rebecchi (1906) 100 N. Y. Supp. 335, 336; Griffin v. Goldsboro W. Co. (1898) 122 N. C. 206, 211, 30 S. E. 319, 320, 41 L. R. A. 240, 242; Noyes, American Railroad Rates, 27; note 60, infra. 26 See, e. g., Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 11, 29 Sup. Ct. 148, 151, 53 L. ed. 371; Lincoln G. & E. L. Co. v. Lincoln (1909) 182 Fed. 926, 929 ; Report of Industrial Commission, vol. 19, p. 405 et seq. And for an interesting article on overcapitalization, though it is not strictly in point, see Wickersham, The Capital of a Corporation, 22 Harv. L. Rev. 319. 278 JUST COMPENSATION. rent revenue and not added to the capitalization; and the funds of the company may have been spent with hon- esty and with unusual shrewdness.^'^ But there is cer- tainly no injustice in saying that the present value of the property rather than either the amount of the investment or the capitalization should govern. The same rule ap- plies in the business world at large. In all such cases the earnings are based simply upon the present ability to pro- duce results and not upon financial history .^^ Producing plant equally efl&cient. 157. The present value of the property seems to be the cost of producing at the present time -^ property which is its equal in efficiency.^*^ From the cost of reproducing 27 See, e. g., Wright v. Georgia R. & B. Co. (1910) 216 U. S. 420, 30 Sup. Ct. 242, 54 L. ed. 544, which was not a rate case. — In the early days, whik there was a great deal of stock-watering, there were also frequently large grants to the railroads by the federal, state and municipal govern- ments. 28 See also Louisville & N. R. Co. v. Railroad Comn. (1912) 196 Fed. 800, 821, 822; Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 433, 434, 118 Pac. 354, 355, 356, 38 L. R. A. N. S. 1209; Consolidated G. Co. v. New York (1907) 157 Fed. 849, 855, 856; Matthews and Thompson, Public Service Company Rates and the Fourteenth Amendment, 15 Harv. L. Rev. 249, 264, 265; Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. 532, 534, 540, 541 ; Fenwick, The Judicial Test of a Reasonable Rail- road Rate, 8 Mich. L. Rev. 445, 450, 451. Contra, Pennsylvania R, Co. v. Philadelphia County (1908) 220 Pa. 100, 115, 68 Atl. 676, 679, 15 L. R. A. N. S. 108, 117, which is clearly unsound and against the weight of mod- ern authority. — With reference to contentions such as those set forth in Whitten, Valuation of Public Service Corporations, chap. 5, that the actual cost of the property should be considered, it may be pointed out in addi- tion that the original value of the property is not shown by showing the number of dollars which the property must have cost originally. The dol- lar is not a fixed standard of value. Its purchasing power varies. And so it would be unfair to say that because a property cost a thousand dollars seventy-five years ago a thousand dollars of to-day adequately represents the amount of the investment. 29 On the significance of the term "present time" see sec. 158, infra. ^0 On the question of equal eflBciency see In re Arkansas Rate Cases (1911) VALUE OF PROPERTY. 279 new the present plant, deduction must be made for the depreciation which has actually taken place; ^^ a further sum must, it seems, be allowed for the difference in value 187 Fed, 290, 319; Brunswick & T. W. Dist. v. Maine W. Co. (1904) 99 Me. 371, 387, 388, 59 Atl. 537, 543, 544; Capital C. G. L. Co. v. Des Moines (1896) 72 Fed. 829, 844; Whitten, Valuation of Public Service Corpora- tions, sees. 54 et seq., 73, 75 et seq. ; Robinson, Railway Passenger Rates, 16 Yale Rev. 341, 360. It does not seem necessary that the value of property immediately along the company's line of road be considered if property can be bought for less along a somewhat diflferent route: see Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 437, 438, 120 N. W. 966, 970; Min- nesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 456, 457, 33 Sup. Ct. 729, 763, 57 L. ed. 1511; and quotations in Whitten, Valuation of Public Service Corporations, pp. 137, 139, which fully answer Wyman, Public Service Corporations, p. 995. In Spring V. W, Co. v. San Francisco (1908) 165 Fed. 667, 698, the court declared, "If the company sees fit to use, for the mere cachement of water, lands which are much more valuable for other purposes, it is unreasonable in fixing rates to appraise such lands for more than they are worth as watershed areas." With this note compare note 21, supra. 31 In Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 457, 458, 469, 33 Sup. Ct. 729, 763, 764, 768, 57 L. ed. 1511, the failure to de- duct for depreciation was one of the reasons for reversing the action of the lower court. To the same effect is Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 29 Sup. Ct. 148, 53 L. ed. 371. On necessity of considering present value see note 16, supra. As showing that ascertaining the cost of re- production less depreciation is ordinarily the only fair method of as- certaining the present value of the property, consider Montana, W. & S. R. Co. V. Morley (1912) 198 Fed. 991, 1004; Western Ry. of Alabama V. Railroad Comn. (1912) 197 Fed. 954, 959; Louisville & N. R. Co. v. Railroad Comn. (1912) 196 Fed. 800, 820, 821; Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 433, 434, 441, 118 Pac. 354, 355, 356, 358, 38 L. R. A. N. S. 1209; San Joaquin & K. R. C. & I. Co. v. Stanis- laus Coimty (1911) 191 Fed. 875, 881; Cumberland T. & T. Co. v. Louisville (1911) 187 Fed. 637, 642; Shepard v. Northern P. Ry. Co. (1911) 184 Fed. 765, 802; Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 438, 439, 440, 120 N. W. 966, 970, 971; Consolidated G. Co. v. New York (1907) 157 Fed. 849, 855, 856; In re Rebecchi (1906) 100 N. Y. Supp. 335; Steen- erson v. Great N. Ry. Co. (1897) 69 Minn. 353, 373, 374, 72 N. W. 713, 715; Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. 532, 545, 549. Compare Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 437, 438, 120 N. W. 966, 970. — The entire question of depreciation is discussed at length in Whitten, Valuation of Public Service Corporations, chaps. 17- 19; compare ibid., chap, 16, 280 JUST COMPENSATION. between the existing plant and a plant of modem de- sign ; 32 property which is not needed for the business of the company must not be included in the basis upon which a revenue from transportation must be allowed; ^^ and where the plant is markedly in excess of the require- ments such excess is not entitled to earn a revenue from transportation. 3^ 32 "If the existing plant is in any respect antiquated or inefficient as compared with a new plant of modern design and of the same capacity, and shows a greater expense per unit of output or work done, then the cost of procuring such modern plant will fix the maximum sum which a prospec- tive purchaser of the existing plant, though willing to buy, could afford to pay. The company's plant may be worth much or little, but cannot well in any event be worth more than the cost to procure a new plant of equal capacity and modern design:" Matthews and Thompson, Public Service Company Rates and the Fourteenth Amendment, 15 Harv. L. Rev. 249, 267. See also Brunswick & T. W. Dist. v. Maine W. Co. (1904) 99 Me. 371, 38G- 388, 59 Atl. 537, 543, 544. Compare Bailly, The Legal Basis of Rate Regu- lation, 11 Col. L. Rev. 532, 548; Wyman, Public Service Corporations, pp. 972, 973. 33 "It is not just to compel consumers to pay for more than they receive, or to pay complainant an income on property which is not actually being used in gathering and furnishing water. If in this case the company, in anticipation of the growth of the city and its future needs, acquired prop- erty for future use at a cost of hundreds of thousands of dollars which is now worth millions, it has acted wisely, but it should be satisfied with the goodness of its bargain and the enhanced value of its property, without asking in addition gratuities from its customers in the way of higher rates. When the property does come into necessary service the company is enti- tled to have it credited at its then fair and reasonable value for rate-fixing purposes:" Spring V. W. Co. v. San Francisco (1908) 165 Fed. 667, 697. See also Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 440, 33 Sup. Ct. 729, 757, 57 L. ed. 1511; Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 437, 120 N. W. 966, 970; notes 34, 80, 81, infra. 34 "If a plant is built, as probably this was, for a larger area than it finds itself able to supply, or, apart from that, if it does not, as yet, have the customers contemplated, neither justice nor the Constitution requires that, say, two thirds of the contemplated number should pay a full return, . . . , It hardly can have meant that a system constructed for six thousand acres should have a full return upon its value from five hundred, if those were all that it supplied:" San Diego L. & T. Co. v. Jasper (1903) 189 U. S. 439, 446, 447, 23 Sup. Ct. 571, 574, 47 L. ed. 892. "The rates must be reasonable to the company, but they must, in any event, be reasonable VALUE OF PROPERTY. 281 Significance of term * 'present time." 158. The term ''present time" has not a precise mean- ing. Prices fluctuate and therefore it would not do to say that the cost at the present time necessarily means the cost on a particular day. Prices at the institution of the suit or when testimony is given may be different from prices at the time when the question is decided by the court of last resort. The court should remember this when it passes upon the constitutionality of rate regulations, especially when it passes upon such questions several years after the testimony has been submitted.^-"^ Present to the public. If a railroad is built into a new, sparsely settled territory with a view of serving a large future population and developing business, the Constitution does not require the few people and the small business of the present time to pay rates which will yield an income equal to the full return to be gathered when the country is populated and business developed to the full capacity of the road:" Southern P. Co. v. Bartine (1909) 170 Fed. 725, 767. "Suppose that a five hundred horse power engine was used for pumping when a one hundred horse power engine would do as well. As property to be fairly valued the larger engine might be more valuable than the smaller one, yet it could not be said that it would be reasonable to compel the public to pay rates based upon the value of the unnecessarily expensive engine:" Brunswick & T. W. Dist. v. Maine W. Co. (1904) 99 Me. 371, 376, 59 Atl. 537, 539. See also Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 381, 396, 72 N. W. 713, 718, 724; Consolidated G. Co. V, New York (1907) 157 Fed. 849; Boise City I. & L. Co. v. Clark (1904) 131 Fed. 415, 422; Capital City G. L. Co. v. Des Moines (1896) 72 Fed. 829, 844; Long Branch Comn. v. Tintern M. W. Co. (1905) 70 N. J. Eq. 71, 80, 85, 88, 62 Atl. 474, 477, 479, 480; In re Arkansas Railroad Rates (1909) 168 Fed. 720; San Diego L. & T. Co. v. National City (1899) 174 U. S. 739, 757, 758, 19 Sup. Ct. 804, 811, 43 L. ed. 1154; Whitten, Valuation of Public Service Corporations, pp. 43, 52, 56, 72, chap. 10; Wyman, Public Service Corporations, pp. 970-974; sec. 167, infra. — It must be remembered, however, that a railroad is often required by law to do some business which is unprofitable. 35 Consider Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 16, 29 Sup. Ct. 148, 153, 53 L. ed. 371, where the case was pending over seven years; Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 377-380, 33 Sup. Ct. 729, 732, 57 L. ed. 1511, pending over six years; Louis- ville & N. R. Co. V. Railroad Comn. (1912) 196 Fed. 800, pending five years; Smalley, Railroad Rate Control (Publications of the American Eco- 282 JUST COMPENSATION. cost, then, is simply an approximate sum, and its approxi- mation to a precise sum depends upon the extent of fluc- tuations in prices. Average prices would be unsatisfactoiy where there had been recent but very marked changes in prices which appeared likely to last for some time, as where they were caused by new inventions or by radical changes in the tar- iff; ^^ and, on the other hand, if a railroad may be re- quired to do s-ome of its business at considerably less pro- fit than it could be required to do its business as a whole, it seems that on like principle the court should not pay attention to fluctuations in prices of materials or operat- ing expenses unless those changes are of importance be- cause of the number or importance of the items or be- cause of their immediate effect or because of the time over which they extend, although changes which are more marked may affect the constitutionality of the rates.^'^ The grades and curves of the railroad's tracks follow in a general way the lines of the country through which the railroad passes, but they certainly do not follow those lines in every detail ; and so also while the value which is used as a basis of estimate should be affected by marked economic changes it should not reflect every fluctuation in prices. Tangible property. 159. The property of the company, of course, includes nomic Assn.) 114-117; Hadley, The Eleventh Amendment, 66 Cent. L. J. 71, 76; Smyth v. Ames (1898) 171 U. S. ,361, 18 Sup. Ct. 888, 43 L. ed. 197 ; end of note 44 in Chapter 5, supra. 36 See, however, Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 436, 437, 120 N. W. 966, 970; Whitten, Valuation of Public Service Corporations, p. 202 et seq., for discussions on ''average price versus pres- ent price." 37 See note 124, infra. VALUE OF PROPERTY. 283 its land, structures, rolling stock and working capital.^^ And the cost of that property should be held to include the expenditures necessary to secure it, such as the cost of acquiring land, "^ surveying, material, labor, engineer- ing, superintendence, bookkeeping, legal expenses,'^^ the securing of funds,^^ interest,^- insurance, taxes and any other incidental expenditures which it is necessary to make during the construction and equipment of the road for its construction and equipment.^ ^ In the Minnesota Rate Cases '^^ the court refuses to con- 38 Cumberland T. & T. Co. v. Louisville (1911) 187 Fed. 637, 646, 647; Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 439, 440, 441, 118 Pac. 354, 357, 358, 38 L. R. A. N. S. 1209; Lincoln G. & E. L. Co. v. Lin- coln (1909) 182 Fed. 926, 928; Consolidated G. Co. v. New York (1907) 157 Fed. 849, 859; Whitten, Valuation of Public Service Corporations, chap. 14. 39 This includes the expense of abstracts, recording deeds, etc. : Whitten, Valuation of Public Service Corporations, p. 128. 40 Compare Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 438, 120 N. W. 966, 970. 41 See Whitten, Valuation of Public Service Corporations, chap. 13. Com- pare Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 438, 120 N. W, 966, 970; Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. 532, 640, note. — This should include pay for services rendered in the sale of bonds but not ordinary discount on those bonds. 42 Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 438, 118 Pac. 354, 357, 38 L. R. A. N. S. 1209 ; Brunswick & T. W. Dist. v. Maine W. Co. (1904) 99 Me. 371, 383, 59 Atl. 537, 542. 43 In Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352. 451, 455, 33 Sup. Ct. 729, 761, 763, 57 L. ed. 1511, the objection of the court may be to the way in which such amounts were estimated and included in those cases. — On the subject of this section see also Whitten, Valuation of Public Service Corporations, chaps. 12, 16; Matthews and Thompson, Pub- lic Service Company Rates and the Fourteenth Amendment, 15 Harv. L. Rev. 249, 267; Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. 532, 550-552, 640; Fenwick, The Test of a Reasonable Rate, 8 Mich. L. Rev. 445, 453; Wyman, Public Service Corporations, pp. 969, 970; Esch, Phys- ical Valuation of Railroad Property, 13 The Brief, 42, 54. 44 Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 452 et seq., 469, 33 Sup. Ct. 729, 761 et seq., 768, 57 L. ed. 1511. 284 JUST COMPENSATION. sider the value of the property to the company; and this position is unquestionably correct, for such a value de- pends upon the earning capacity of the railroad, which, as we shall see,^^ may not properly be considered in de- termining the principal upon which the company is enti- tled to earn a revenue. In that case the court also refuses to attribute to the land a greater value than the normal market value of land in the vicinity. It does not seem necessary that the value of property immediately along the company's present line of road be considered if prop- erty can be bought for less along a somewhat different route: the question is simply the cost of producing a road equally efficient.'*^ But it does seem that the company should be allowed to earn a revenue upon the amount which it would be necessary for a company purchasing in the most economical manner to pay for a roadbed in the most economical location, and if it is a fact that in condemning land a railroad is usually obliged to pay more than the market value,^^ and that fact is proved, it should be recognized by the court.^* 45 Sec. 162, infra. 46 See note 30, supra. 47 Whitten, Valuation of Public Service Corporations, p. 126, declares that "Usually in the general state railroad appraisals the value of land taken for right of way has not been limited by the market value of adja- cent land. An allowance has been made for the higher price that the rail- road would have to pay on account of damages to land not taken and on account of the fact that in condemning land for railway purposes the rail- way company is usually required to pay an amount in excess of market value." 48 Compare Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 33 Sup. Ct. 729, 761, 57 L. ed. l.'^ll. The court would hardly assume as a matter of law that a railroad can be run without any losses on ac- count of negligence of its employees and refuse to recognize a limited amount of expenditures for such purposes as legitimate operating expendi- tures. VALUE OF PROPERTY. 285 Cost of corporation itself. 160. Moreover, as large enterprises must as a general rule be conducted by corporations and not by individuals, it seems clear that the corporation must be allowed to earn a revenue upon the money which must be spent in order that it may come into life, upon the amount which must be paid to the state for the right to organize and upon the amount which must be paid to promoters, so far as the expenditures for that purpose are reasonable.^ ^ Cost of business of corporation. 161. Something must also be allowed for the fact that the company is a going concern.^" Even the most efficient 49 See Whitten, Valuation of Public Service Corporations, pp. 261 et seq., 643; Esch, Physical Valuation of Railroad Property, 13 The Brief, 42, 54, 59. Compare Cumberland T. & T. Co. v. Louisville (1911) 187 Fed. 637, 646, 647; Cedar Rapids G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 438, 120 N. W. 966, 970. 50 Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 433 et seq., 118 Pac. 354, 359 et seq., 38 L. R. A. N. S. 1209, and authorities there cited; Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. at G40, and authorities there cited; Missouri, K. & T. Ry. Co. v. Love (1910) 177 Fed. 493, 496, 497; C. H. Venner Co. v. Urbana Waterworks (1909; 174 Fed. 348, 352; Spring V. W. Co. v. San Francisco (1908) 165 Fed. 667, 693, Consider also Whitten, Valuation of Public Service Corporations, chap. 22, especially p. 495 et seq. Compare Montana, W. & S. R. Go. v. Mor- ley (1912) 198 Fed. 991, 1005; and cases in note 52, infra. In Omaha V. Omaha W. Co. (1910) 218 U. S. 180, 202, 203, 30 Sup. Ct. 615, 620, 54 L. ed. 991, which, the court carefully pointed out, simply concerned the ascertainment of value under a contract of sale and was not a rate case, the court said, "The option to purchase excluded any value on ac- count of unexpired franchise; but it did not limit the value to the bare bones of the plant, its physical properties, such as its lands, its machin- ery, its water pipes or settling reservoirs, nor to what it would take to reproduce each of its physical features. The value, in equity and justice, must include whatever is contributed by the fact of the connection of the items making a complete and operating plant. The difference between a dead plant and a live one is a real value, and is independent of any fran- chise to go on, or any mere good will as between such a plant and its cus- tomers. That kind of good will, as suggested in Willcox v. Consolidated G. 286 JUST COMPENSATION. management cannot build up a thoroughly efficient or- ganization without an expenditure in building it up which cannot be treated entirely as current operating expendi- ture. Nor can it develop a profitable clientage without similar expenditure.^^ It is true that part, perhaps most, of its clientage may be the result of its having a partial or complete monopoly of the business, and to that extent the possession of a clientage may be disregarded by the government when it regulates rates.^- But, on the other Co. (1909) 212 U. S. 19, 20 Sup. Ct. 192, 53 L. ed. 382, is of little or no commercial value when the business is, as here, a natural monopoly, with which the consumer must deal, whether he will or no. That there is a difference between even the cost of duplication, less depreciation, of the elements making up the water company plant, and the commercial value of the business as a going concern, is evident. Such an allowance was upheld in National W. Co. v. Kansas City (1894) 62 Fed. 853, 27 L. R. A. 827, where the opinion was by Mr. Justice Brewer. We can add nothing to the reasoning of the learned justice, and shall not try to. That case has been approved and followed. . . . No such question was considered in either Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 29 Sup. Ct. 148, 53 L. ed. 371, or in Willcox v. Consolidated G. Co. (1909) 212 U. S. 19, 29 Sup. Ct. 192, 53 L. ed. 382. Both cases were rate cases, and did not con- cern the ascertainment of value under contracts of sale." 51 Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 446, 118 Pac. 354, 360, 38 L. R. A. N. S. 1209; Des Moines W. Co. v. Des Moines (1911) 192 Fed. 193, 198; Missouri, K. & T. Ry. Co. v. Love (1910) 177 Fed. 493, 496, 497; National W. Co. v. Kansas City (1894) 62 Fed. 853, 865, 27 L. R. A. 827, 837; Miller, Some Questions in Connection with State Rate Regula- tion, 8 Mich. L. Rev. 108, 116. 52 Willcox V. Consolidated G. Co. (1909) 212 U. S. 19, 48, 52, 29 Sup. Ct. 192, 198, 200, 53 L. ed. 382; Cedar R. G. L. Co. v. Cedar Rapids (1912) 223 U. S. 655, 669, 32 Sup. Ct. 389, 390, 56 L. ed. 594; Cedar R. G. L. Co. V. Cedar Rapids (1909) 144 Iowa, 426, 434, 120 N. W. 966, 969; Home T. Co. V. Carthage (1911) 235 Mo. 644, 664, 139 S. W. 547, 551; Bristol v. Bristol & W. Waterworks (1901) 23 R. I. 274, 278, 49 Atl. 974, 975; Na- tional W. Co. v. Kansas City (1894) 62 Fed. 853, 865, 27 L. R. A. 827; Whitten, Valuation of Public Service Corporations, sec. 699; Bailly, The Legal Basis of Rate Regulation, 11 0)1. L. Rev. 532, 644; Matthews and Thompson, Public Service Company Rates and the Fourteenth Amendment, 15 Harv. L. Rev. 249, 267, 268; Wyman, Public Service Corporations, p. 989. See also 22 Harv. L. Rev. at 263; Gloucester W. S. Co. v. Gloucester ( 1901 ) 179 Mass. 365, 60 N. E. 977. Compare Monongahela N. Co. v. United VALUE OF PROPERTY. 287 hand, it may be necessary to spend a considerable amount of money in order to secure a well-developed organization or a well-developed clientage and, therefore, a public ser- vice corporation must be entitled to earn a revenue upon the amount which a well-managed plant starting at the present time in the place of the present corporation would have to pay in order to build up such an organiza- tion and such a business as that which the present cor- poration possesses.^^ Capitalization of earning capacity. 162. It seems clear, however, that the valuation of the property cannot properly be based even in part upon a capitalization of the earning capacity of the company. Such a capitalization may unquestionably be used by the state if it so desires as a basis for taxation.^^ But it does states (1893) 148 U. S. 312, 13 Sup. Ct. 622, 37 L. ed. 463; Pveagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 410, 14 Sup. Ct. 1047, 1059, 38 L. ed. 1014, in the light of Whitten, op. cit., sec. 11. The decision in Louis- ville & N. R. Co. V. Railroad Comn. of Alabama (1912) 196 Fed. 800, 822, is clearly wrong. 53 See discussion in WHiitten, Valuation of Public Service Corporations, chap. 24. The position taken in the text is slightly different from that taken in Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. at 642-644, where it is said that a public service corporation is entitled to earn a revenue upon the amount whicli a well-managed business starting at the present time would have to pay in order to build up a business sufficient to make it reasonably profitable. See authorities there cited. Compare Montana, W. & S. R. Co. v. Morley (1912) 198 Fed. 991, 1005, and also the childish remarks in Spring V. W, v. San Francisco (1908) 165 Fed. 667, 697. 54 People V. New York State Board (1905) 199 U. S. 1, 25 Sup. Ct. 705, 50 L. ed. 65. See also San Francisco N. Bk. v. Dodge (1905) 197 U. S. 70, 25 Sup. Ct. 348, 49 L. ed. 669; Atchison, T. & S. F. Ry. Co. v. Sullivan (1909) 173 Fed. 456; Missouri, K. & T. Ry. Co. v. Shannon (1907) 100 Tex. 379, 100 S. W. 138, 10 L. R. A. N. S. 681; Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. 532, 644. 288 JUST COaiPENSATION. not follow that it must be considered in determining the constitutionality of a state's regulation of charges.^^ The earning capacity of a public service corporation in the presence of rate regulation may be different from its earning capacity in the absence of regulation. This is elementar}". The question is as to the amount of earning capacity which must be left to the corporation. It would be inconsistent to measure that amount by the amount which the corporation might earn in the absence of regu- lation. And it would be absurd to attempt to measure that amount by itself.^*^ 55 In addition to the discussion in this section see Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 451 et seq., 33 Sup. Ct. 729, 761, et seq., 57 L. ed. 1511, referred to in sec. 159, supra, and discussion and cita- tion of authorities in Whitten, Valuation of Public Service Corporations, chaps. 1, 3, sec. 721. 58 "Earning capacity cannot determine the value of the property of a railroad upon wliich its rates must make a fair return. Earnings are de- pendent upon rates, and value indicated in earnings manifestly has no rela- tion to the reasonableness of rates. Otherwise, the more the railroad charged and thereby earned, the more it would have the right to charge:" Noyes, American Railroad Rates, 28. "Earning capacity cannot logically be a measure of the present value of the plant of either a regulated or an unregulated public utility. The result sought for is the basis of earning capacity. If, then, earning capacity is taken as the measure of its own basis, the calculator is following the circumference of a circle, and is in a fair way of solving the problem of perpetual motion:" Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. 532, 544. "It may be asserted with confidence that any method of valuation based upon capitalization of earnings for any period, or upon the selling value of the capital stock (whether the property is overcapitalized or undercapitalized), is wholly inadmissible:" Matthews and Tliompson, Public Service Company Rates and the Fourteenth Amendment, 15 Harv. L. Rev. 249, 268. "The impossi- bility of basing reasonable rates on a market value that is itself determined by reasonable rates is apparent. It is a clear case of reasoning in a circle. We have the evident absurdity of requiring the answer to the problem before we can undertake its solution. The advocates of the market value theory cannot really mean what they say. Market value is not really a part of the process but the final result. It includes in many cases a capi- talization of certain monopoly profits and the monopoly value thus cre- ated is set up as justifying the higher rates which have in fact created the VALUE OF PROPERTY. 289 Moreover, if a capitalization of the earning capacity were allowed in fixing the valuation of the property in rate cases, the railroad having the largest volume of traf- fic would be for that very reason allowed to charge the highest rates per unit of transportation. Stock and bonds. 163. As we have already seen, the par value of the total amount of stock and bonds issued does not show the pres- ent value of the property of the company.^ '^ And the mar- ket value of the stock and bonds depends so largely upon the earnings of the company that, obviously, as the earn- ing capacity of the property cannot be used as a test of its value in rate cases,^^ the market value of the stock and bonds does not furnish any satisfactory test of the value of the property.^^ The further fact that companies often issue stock and bonds in order to buy the stock and bonds of other rail- roads, also renders the capitalization of the road under in- vestigation unreliable as a test of the amount upon which monopoly value:" Whitten, Valuation of Public Service Corporations, pp. 54, 55. See also Martin, Recent Federal Court Decisions Affecting State Laws Regulating Freight and Passenger Rates, 21 Yale L. J. 117, 124; Kennebec W. Dist. v. Waterville ( 1902) 97 Me. 185, 202, 54 Atl. 6, 20-21, 60 L. R. A. 856; Beale and Wyman, Railroad Rate Regulation, p. 354; note 52, supra. Compare In re Arkansas Rate Cases (1911) 187 Fed. 290, 319; Missouri, K. & T. Ry. Co. v. Love (1910) 177 Fed. 493, 496; Matthews v. Board of Corp. Comrs. (1901) 106 Fed. 7, 9. 57 See sec. 156, supra. 58 See sec. 162, supra. 59 See also Montana, W. & S. R. Co. v. Morley (1912) 198 Fed. 991, 1007; Matthews and Thompson, Public Service Company Rates and the Four- teenth Amendment, 15 Harv. L. Rev. 249, 268; Beale and Wyman, Railroad Rate Regulation, pp. 353, 354; Bailly, The Legal Basis of Rate Regulation, 11 Col. L. Rev. 532, 542, note 34. Compare In re Arkansas Rate Cases (1911) 187 Fed. 290, 318, 319. 19 290 JUST COMPENSATION. that road should receive a revenue from transportation.^*^ Value as system. 164. We have already seen that while the earning ca- pacity of the road may be capitalized for the purpose of taxation it may not be capitalized to furnish a basis for judging the constitutionality of rate regulations.^^ So also, while in tax cases the courts may recognize the fact that the separate parts of the property of the company have as parts of a larger system a greater value than they would possess if considered separately,^^ that increased value cannot be considered as such in rate cases.®^ So far as the increase in value rests upon greater earning ca- pacity it is an unsafe guide ; ^^ and so far as it is due to expenditures made not for tangible property but in order to build up the corporation and its organization and its clientage, that value may be more appropriately consid- ered under other heads.^^ In short, for the purposes of rate regulation, the present value which is to be used as a 60 See Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S, 352, 440, 33 Sup. Ct. 729, 757, 57 L. ed. 1511; Shepard v. Northern P. Ry. Co. (1911) 184 Fed. 765, 802; Consolidated G. Co. v. New York (1907) 157 Fed. 849, 861. 61 See sec. 162, supra. 62 Cleveland, C, C. & St. L. Ry. Co. v. Backus (1894) 154 U. S. 439, 444, 14 Sup. Ct. 1122, 1123, 38 L. ed. 1041; Chicago, B. & Q. Ry. Co. v. Babcock (1907) 204 U. S. 585, 598, 27 Sup. Ct. 326, 329, 51 L. ed. 636; Western U. T. Co. v. Missouri (1903) 190 U. S. 412, 23 Sup. Ct. 730, 47 L. ed. 1116; State v. Savage (1902) 65 Neb. 714, 754, 755, 91 N. W. 716, 724. See also Patterson, The United States and the States Under the Con- stitution, 2d ed., p. 40, note. Compare Fargo v. Hart (1904) 193 U. S. 490, 24 Sup. Ct. 498, 48 L. ed. 761; 26 Harv. L. Rev. 1, 20. 03 Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 450, 451, 33 Sup. Ct. 729, 761, 57 L. ed. 1511. Compare Missouri, K. & T. Ry. Co. V. Love (1910) 177 Fed. 493, 496. 64 See sec. 162, supra. 65 See sees. 160, 161, supra. VALUE OF PROPEKTY. 291 basis is simply the cost of producing at the present time property, organization and clientage of equal value. But, on the other hand, on the same principle, it seems that the increased amount which must often be paid for land because it is to be used by a railroad company ought to be included in the present value of the property; ®^ that the partial decreases and the partial increases in the cost of the road if it is built throughout at one time instead of by piecemeal construction must be included in the esti- mate; ^^ and that the estimate must include expenditures which are not made at the time of the original construc- tion of the road but which are in reality deferred con- struction costs, such as the cost of such repairing of em- bankments as is due to their settling because of newness.®^ Apportionment of value. 165. In order to ascertain the total value within a state upon which a railroad is entitled to earn a revenue we must add to the value of the tangible property within the state a share of the total intangible value of the cor- poration. The court has sustained state laws which taxed that proportion of the total value of the corporation which the trackage within the state bore to the total trackage.^^ But the value for taxation is not the value for rate regula- tion;^*^ and while it is possible that apportionment accord- ing to trackage would not be held unconstitutional in rate cases, such an apportionment does not seem to furnish the 66 See discussion in sec. 159, supra. 67 Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 437, 118 Pac. 354, 357, 38 L. R. A. N. S. 1209. See also Whitten, Valuation of Public Service Corporations, chap. 15. 68 See Whitten, Valuation of Public Service Corporations, chap. 18. 68 See cases in note 62, supra. 70 See authorities in sees. 162, 164, supra. 292 JUST COMPENSATION. fairest method of arriving at the value within the state. It seems that the fairest method would be to take all of the elements of value which can be definitely localized (which may include more than merely tangible property), find the proportion of such elements of value which are within the state to those in all states within which the company operates, and assign in similar proportion those elements of value which cannot be localized."^ Where an attack is made upon the validity of a schedule of intrastate rates as an entirety, it is necessary to recog- nize the fact that to a large extent the same property within the state is used in both interstate and intrastate traffic, and it is necessary to apportion the value of such property and declare what portion, plus the property which is used exclusively for local traffic, is entitled to earn a revenue from intrastate businessJ^ The apportionment, at least in the absence of excep- tional circumstances,^^ must be based, not upon the pro- portion between the gross earnings from the two classes of business, ^^ as was done by some of the lower federal 71 Of course, property not used in the operation of the road, such as stock and bonds of other roads, cannot be included in the estimate: Fargo V. Hart (1904) 193 U. S. 490, 24 Sup. Ct. 498, 48 L. ed. 761. See also Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 440, 33 Sup. Ct. 729, 757, 57 L. ed. 1511. On terminals see Judson, Interstate Com- merce, 2d ed., p. 196; Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 72 N. W. 713. 72 See sec. 12, supra. 73 If, for example, the interstate and intrastate traffic diflFered in that one consisted much more largely than the other of low-grade freight, such as coal or stone, it is possible that this fact should be taken into consid- eration. 74 As was said in Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 459, 461, 33 Sup. Ct. 729, 764, 765, 57 L. ed. 1511, "It is said that a division of the value of the property according to gross earnings is a division according to the 'value of the use,' and there- fore proper. But it would seem to be clear that the value of the use is not shown by gross earnings. The gross earnings may be con- VALUE OF PROPERTY. 293 courts,"^^ but upon the extent to whicli the facilities of the company are used; "^^ and, since the cars usually carry at sumed by expenses, leaving little or no profit. If, for example, the intra- state rates were so far reduced as to leave no net profits, and the only pro- fitable business was the interstate business, it certainly could not be said that the value of the use was measured by the gross revenue. ... If the property is to be divided according to the value of the use, it is plain that the gross-earnings method is not an accurate measure of that value. . . . The value of the use, as measured by return, cannot be made the criterion when the return itself is in question. If the return, as formerly allowed, be taken as the basis, then the validity of the state's reduction would have to be tested by the very rates which the state de- nounced as exorbitant. And, if the return as permitted under the new rates be taken, then the state's action itself reduces the amount of value upon which the fairness of the return is to be computed." See also Mis souri Rate Cases— Knott v. Chicago, B. & Q. R. Co. (1913) 230 U. S. 474, 504, 33 Sup. Ct. 975, 981, 982, 57 L. ed. 1571; Allen v. St. Louis, I. M. & S. Ry. Co. (1913) 230 U. S. 553, 557, 33 Sup. Ct. 1030, 1032, 57 L. ed. 1625; Chicago, M. & St. P. Ry. Co. v. Tompkins (1900) 176 U. S. 167, 175, 177, 20 Sup. Ct. 336, 339, 44 L. ed. 417; Martin, Recent Federal Court Da cisions Affecting State Laws Regulating Freight and Passenger Rates, 21 Yale L. J. 117, 124; and note 56, supra. 75 In some cases the apportionment was based upon the relation of the gross revenue from intrastate transportation to the gross revenue from the entire transportation within the state: Western Ry. of Alabama v. Rail- road Comn. (1912) 197 Fed. 954, 969 (with which compare 197 Fed. at 964) ; Shepard v. Northern P. Ry. Co. (1911) 184 Fed. 765, 811, 812; Mis- souri, K. & T. Ry. Co. V. Love (1910) 177 Fed. 493; Ames v. Union P. Ry. Co. (1894) 64 Fed. 165, 179; see also Western U. T. Co. v. State (1912) 31 Okla. 415, 121 Pac. 1069; and in other cases according to the relation between the gross revenue from the two kinds of transportation modified by the difference in the expense of conducting the two kinds of transpor- tation: St. Louis & S. F. R. Co. v. Hadley (1909) 168 Fed. 317, 348-351; Trust Co. of A. v. Chicago, P. & St. L. Ry. Co. (1912) 199 Fed. 593, 604; Louisville & X. R. Co. v. Railroad Comn. of Alabama (1912) 196 Fed. 800, 824; In re Arkansas R. Rates (1908) 163 Fed. 141, 142; and see Western Ry. of Alabama v. Railroad Comn. (1912) 197 Fed. 954, 964 (with which compare 197 Fed. at 969); In re Arkansas Rate Cases (1911) 187 Fed. 290, 318. But, as already pointed out, both bases of apportionment are manifestly unsound. Differences in operating expenses should be consid- ered in determining the net earnings but they have no bearing upon the valuation of the plant. And as the gross revenue depends upon the rates, it is clearly absurd to use the gross revenue as a basis for determining the value upon which rates must be allowed to earn a revenue. 76 As was said in Minnesota Rate Cases — Simpson v. Shepard (1913) 294 JUST COMPENSATION. the same time both interstate and intrastate freight or both interstate and intrastate passengers, it seems that the apportionment should be based not upon car mileage but upon ton mileage and passenger mileage."^"^ Having found the total value within the state upon which the company is entitled to earn a revenue from both interstate and intrastate traffic, this total value may be apportioned between freight and passenger traffic by finding the extent to which the facilities can be said to be used exclusively for freight traffic and the extent to which they can be said to be used exclusively for passen- ger traffic and then assigning the residuum of value in the same proportion. Having found the value upon which the company is en- titled to earn a revenue from both interstate and intra- state freight traffic within the limits of the state, that value can be apportioned between interstate and intra- state traffic according to the extent to which the facilities are used in each of those two classes of traffic, as shown 230 U. S. 352, 461, 33 Sup. Ct. 729, 765, 57 L. ed. 1511, "When rates are in controversy, it would seem to be necessary to find a basis for a division of the total value of the property independently of revenue, and this must be found in the use that is made of the property. That is, there should be assigned to each business that proportion of the total value of the property which will correspond to the extent of its employment in that business. It is said that this is extremely diflBcult; in particular, because of the necessity for making a division between the passenger and freight business, and the obvious lack of correspondence between ton-miles and passenger- miles. It does not appear, however, that these are the only units avail- able for such a division; and it would seem that, after assigning to the passenger and freight departments respectively, the property exclusively used in each, comparable use-units might be found which would afford the basis for a reasonable division with respect to property used in common. It is suggested that other methods of calculation would be equally favor- able to the state rates, but this we cannot assume." 77 See cases in note 49 in Chapter I, supra. Compare Missouri, K. & T. Ey. Co. V. Love (1910) 177 Fed. 493, 497, where the court thoroughly mis- understands the questions of value and apportionment of value. VALUE OF PROPERTY. 295 by the ton mileage. So also we can find the value assign- able to intrastate passenger traffic when we have found the relation of the intrastate passenger mileage to the total passenger mileage within the state. By adding the result found as to intrastate freight traffic to the result found as to intrastate passenger traffic we will have the total value within the state upon which the railroad should be entitled to earn a revenue upon intrastate traf- fic of all kinds. We have thus what appears to be a correct method of finding the value upon which a railroad should be enti- tled to earn a revenue from intrastate traffic. And to sup- port this method it is not necessary to show that the rail- road which is allowed to earn a sufficient revenue upon its intrastate traffic as a whole must be allowed to earn a pro- fit upon both the intrastate freight traffic and the intra- state passenger traffic separately. Particular classes of traffic. 166. If an attempt is made to segregate a particular class of intrastate traffic, it seems clear that the value of the property used is the value of the property which is used exclusively for that transportation plus a share of the value of the property used for it in common with other traffic, and that that share must be based upon the propor- tion which the use of the common facilities for that pur- pose bears to the use of those common facilities for all purposes. It is not always possible to show the proportion of the total value of the property upon which a particular traffic is entitled to earn a revenue."^^ Between interstate and 78 See Northern P. Ry. Co. v. North Dakota (1910) 216 U. S. 579, 581, 30 Sup. Ct. 423, 424, 54 L. ed. 624; Atlantic C. L. R. Co. v. Florida (1906) 296 JUST COMPENSATION. intrastate traffic only an approximate division of value can be made, but results which are sufficiently accurate for practical purposes can be reached. We can separate intrastate freight business as a whole from intrastate passenger business as a whole. The result will be only an approximate part of the entire value of the property within the state. Yet we can reach a result containing a degree of accuracy sufficient for practical purposes unless the schedule is very near the dividing line between con- stitutionality and unconstitutionality. So also it may be possible likewise to segregate an important division of the railroad or under some circumstances an important class of the traffic. But we must realize that the more we subdivide subdivisions of the business, or the more minute those subdivisions are, the less and less reliable will be the results until for practical purposes they are useless.'^*' Moreover, a railroad is not entitled to earn the same rate of return upon all classes of business, and for this reason if for no other it is not usually important for us to know what proportion of the value of the road may be said to be devoted to that portion of the total transporta- tion. Unprofitable parts of the property. 167. The state or federal government may also establish rates upon portions of the railroad and exclude from the reckoning other portions of the road which are conspicu- 203 U. S. 256, 260, 27 Sup. Ct. 108, 109, 51 L. ed. 174; Northern P. Ry. Co. V. Lee (1912) 199 Fed. 621, 632, and cases there cited; Southern P. Co. V. Campbell (1911) 189 Fed. 182, 186. Compare note 99, infra. 79 See Northern P. Ry. Co. v. Lee (1912) 199 Fed. 621, 632; Smalley, Railroad Rate Control (Publications of American Economic Assn.) 6, 7; Noyes, American Railroad Rates, 28; Reynolds, Railway Valuation — Is It a Panacea? 8 Col. L. Rev. 265, 270; Leechburg Borough v. Leechburg W. W. Co. (1908) 219 Pa. 263, 68 Atl. 669. VALUE OF PROPERTY. 297 ously less profitable, such as extensions ^° or, probably, terminals, which are extremely expensive and the con- struction of which, in view of the probably small increases in revenue which they will produce, was unwarranted.^^ 80 Florida E. C. Ry. Co. v. United States (1912) 200 Fed. 797. 81 See cases in note 34, supra. In Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 383, 384, 72 N. W. 713, 719, the court said, "In this case the cost of reproducing the terminals is, as we have seen, one-third of the cost of reproducing the whole railroad system within the state. If rates were fixed by the law or by the railway company for the terminals, and separate rates for the rest of the road, so that the public would have a right to use the rest of the road without using the terminals, and these rates were fixed on the basis of requiring the terminals to produce one-third of the net earnings within this state, grass would soon be growing on the ter- minals. The public would soon find ways by which to avoid incurring the enormous expense of using the terminals. Rather than pay three, four or five dollars for riding on the terminals, the passenger coming to St. Paul or Minneapolis would leave the train beyond the terminals, and ride to his destination on a street car for five or ten cents. Rather than incur an expense of eight, ten or twelve dollars for hauling a car of freight over the terminals, the shipper could afi"ord to unload the car beyond the ter- minals, and haul the freight to its destination on wagons and drays. But he would not have to do this very long. Some one would soon construct a belt line or a system of switches to connect him with other railroad tracks and other terminals, over which his car would be hauled to its destination for the ordinary switching charges of from two to five dollars per car. If these excessive charges for the use of terminals could not be thus avoided, they would constitute a prohibitory tariff', which would prevent a large amount of public traffic from entering or passing through these cities. . . . A number of the companies owning the railroads radiating west, northwest, and southwest from Chicago claim that the cost of reproducing their Chicago terminals would be as great as the cost of reproducing all the rest of their systems of roads. If they were required by law to make a separate charge to each patron for the use of these terminals, and an- other separate charge for the use of the rest of the road, so that he might avoid using the terminals if he could, and they attempted on this basis to make the terminals produce one-half the net earnings of the whole sys- tem, how absurd would be the result. . . . It is clear that where real estate outside of the business center, and in the outlying districts, of a city, has been given a large speculative or prospective value, it cannot, whether used for railroad terminals or other purposes, be made, ordinarily, to pro- duce a reasonable annual income on the investment, and the profits which are expected from such investments are not annual, but accumulated, pro- fits, to be realized by future increase in value." See also 69 Minn, at 396, 72 N. W. at 724. 298 JUST COMPENSATION^-. Smyth V. Ames criticized. 168. In conclusion we must refer to a passage in the opinion of the court in Smyth v. Ames.^- It must be con- sidered because it has been quoted with approval in a number of cases, more especially in cases in the lower courts,^^ although in view of the present condition of the law this portion of the opinion is misleading rather than helpful.s^ The court said, ' * The basis of all calculations as to the reasonableness of rates to be charged by a corporation maintaining a highway under legislative sanction must be the fair value of the property used by it for the conveni- ence of the public. And in order to ascertain that value, the original cost of construction, the amount expended in permanent improvements, the amount and market value of its bonds and stock, the present as compared with the original cost of construction, the probable earning capac- ity of the road under the particular rates prescribed by statute, and the sum required to meet operating expenses, are all matters for consideration, and are to be given such weight as may be just and right in each case. We do not say that there may not be other matters to be regarded in estimating the value of the property. What the company is entitled to ask is a fair return upon the value which it employs for the public convenience. On the other hand, what the public is entitled to demand is that no more be exacted from it for the use of a public highway than the services rendered are reasonably worth. ' ' ^^ 82 (1898) 169 U. S. 466, 546, 18 Sup. Ct. 418, 434, 42 L. ed. 819. 83 But see Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 434, 435, 33 Sup. Ct. 729, 754, 755, 57 L. ed. 1511, where it is quoted with approval. 84 Whitten, Valuation of Public Service Corporations, p. 39. 85 The language of Harlan, J., in this opinion seems to echo the Ian- VALUE OF PROPERTY. 299 But the later cases show more clearly than does Smyth V. Ames that in finding the value of the property the es- sential question is as to its present value, and a considera- tion of the factors mentioned in Smyth v. Ames does not furnish a satisfactory method of finding the present value. Even assuming that "the original cost of construction" and 'Hhe amount expended in permanent improvements" could be determined accurately, and in most cases they could not be so determined,^^ and even assuming that it were proved that every such expenditure had been made honestly and economically, the amounts so found would not necessarily be considered by the court.^" In Smyth v. Ames those expenditures were not regarded as showing by themselves the present value of the property; and even if used in connection with other factors they would be more apt to mislead than to assist in reaching accurate results. We have already seen that the amount of the capitali- zation and the market value of the stock and bonds should not be considered in determining the present value of the property for the purposes of rate regulation.^^ It is self-evident that if an effort is made to find the cost of reproducing the property at the present time that fact can be found more satisfactorily by a direct method than by finding the original cost of construction and im- guage of the dissenting opinions of Harlan and Field, JJ., in Stone v. Farmers' L. & T. Co. (1886) 116 U. S. 307, 340, 341, 344, 6 Sup. Ct. 334, 389, 390, 1192, 29 L. ed. 636. 86 See In re Advances in Rates— Eastern Case (1911) 20 I. C. C. 243, 257, 258; Robinson, Railway Passenger Rates, 16 Yale L. Rev. 341, 369; Louisville & N. R. Co. v. Railroad Comn. (1912) 196 Fed. 800, 820, 822, and other authorities cited in note 21, supra. 87 See, e. g., San Diego L. & T. Co. v. Jasper (1903) 189 U. S. 439, 442, 23 Sup. Ct. 571, 572, 47 L. ed. 892; Dow v. Beidelman (1888) 125 U. S. 680, 690, 8 Sup. Ct. 1028, 1030, 1031, 31 L. ed. 841. 88 See sees. 156, 163, supra. 300 JUST COMPENSATION. provements and comparing those costs with present costs.®^ ''The probable earning capacity of the road under the particular rates prescribed by statute, and the sum re- quired to meet operating expenses" certainly ought to be considered in rate cases. The validity of the schedule de- pends upon whether the net earnings— the gross earnings minus the operating expenses— constitute an appropriate percentage of the value of the property. But the problem immediately before us is to determine the amount of the principal upon which the income is to be based. And so, while the amount of the gross earnings and operating ex- penses are of importance as showing the income of the road, they should not be considered by the court in these cases in determining its value.^*^ We have thus noted some of the objections to the oft- quoted statement of the court in Smyth v. Ames. That statement certainly does not show as clear an understand- ing of the questions involved in rate cases as is shown in later opinions of the court. Rough estimates of value. 169. In some cases a rough estimate of the value of the property may be sufficient.^^ The road may show such a 89 See Whitten, Valuation of Public Service Corporations, p. 39. 5>0 See, e. g., Fenwick, The Test of a Reasonable Railroad Rate, 8 Mich. L. Rev. 445, 450. 91 See, for example, Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 412, 413, 14 Sup. Ct. 1047, 1060, 38 L. ed. 1014, where the court held that "a general averment in a bill that a tariff as established is unjust and unreasonable, is supported by the admitted facts that the road cost far more than the amount of the stock and bonds outstanding; that such stock and bonds represent money invested in its construction; that there has been no waste or mismanagement in the construction or operation; that supplies and labor have been purchased at the lowest possible price con- sistent with the successful operation of the road ; that the rates voluntarily VALUE OF PROPERTY. 301 history of wise, honest, economical and provident finan- cial management that there will be no room for doubt that the present value of the property exceeds the amount of stock and bonds outstanding, and such a minimum val- uation based on its history and the amount of its stock and bonds may be sufficient for the purposes of the com- pany. In most cases, however, it will be necessary to consider the elements which make up the value of the property more carefully.*^ ^* Summary as to value. 170. We have seen that the value of the property which must be used as a basis from which to determine whether the rates established by the government so restrict the revenues of a railroad company as to deprive the com- pany of its property without just compensation is the fixed by the company have been for ten years steadily decreasing until the aggregate decrease has been more than fifty per cent; that under the rates thus voluntarily established, the stock, which represents two-fifths of the value, has never received anything in the way of dividends, and that for the last three years the earnings above operating expenses have been insuf- ficient to pay the interest on the bonded debt, and that the proposed tariff, as enforced, will so diminish the earnings that they will not be able to pay one-half the interest on the bonded debt above the operating expenses; and that such an averment so supported will, in the absence of any satisfac- tory showing to the contrary, sustain a finding that the proposed tariff is unjust and unreasonable, and a decree reversing it being put in force." And see cases immediately following Reagan v. Farmers' L. & T. Co. in the same volume; Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 591, 592, 17 Sup. Ct. 198, 203, 41 L. ed. 560; Minnesota Rate Cases- Simpson V. Shepard (1913) 230 U. S. 352, 472, 33 Sup. Ct. 729, 769, 57 L. ed. 1511; Missouri Rate Cases— Knott v. Chicago, B. & Q. R. Co. (1913) 230 U. S. 474, 507, 33 Sup. Ct. 975, 983, 57 L. ed. 1571. In Louisville & N. R. Co. V. Railroad Comn. of Alabama (1912) 196 Fed. 800, 819, the receipts from the intrastate business were not sufficient to meet all the expenses which were properly chargeable against that business. See also cases in note 141 and sec. 186, infra. 91a See, e. g., Missouri Rate Cases — Knott v. Chicago, B. & Q. R. Co. (1913) 230 U. S. 474, 33 Sup. Ct. 975, 57 L. ed. 1571. 302 JUST CO^tPENSATION. amount which it would cost to produce at the present time property of equal efficiency, deducting from the cost of such a plant new an amount to compensate for the depre- ciation which has taken place. To the cost of reproduc- ing such tangible property must be added the cost of pro- ducing at the present time a corporation adapted to do the work and the cost of building up at the present time an organization and a clientage such as the present cor- poration possesses, allowing nothing for that part of the clientage which is the result of the possession of a partial or complete monopoly by the corporation. But, on the other hand, we have seen that the earning capacity of the corporation and the market value of the stock and bonds have no bearing upon the valuation of the property for the purposes of rate regulation. We have also considered the use of the same equipment for more than one class of transportation— for example, for both interstate and intrastate transportation,— and have considered principles of apportionment of valuation which appear to be sound. OPERATING EXPENSES. General principles. 171. Having found the value of the property, the rate of return upon that property depends upon the amount of the earnings which remain after we have deducted from the gross earnings all the necessary current expenditures which do not increase the total value of the property and which are not distributions of earnings among investors. The necessary current expenses include, of course, the cost of conducting transportation,®^ the cost of maintain- 92 Chicago, M. & St. P. Ry. Co. v. Tompkins (1900) 176 U. S. 167, 177, 178, 20 Sup. Ct. 336, 340, 44 L. ed. 417; In re Arkansas Rate Cases (1911) OPERATING EXPENSES. 303 ing the value of the property unimpaired,^^ and other items, such as current taxes ; ^^ but it goes without saying that payments which are extravagant or dishonest, whether they are for salaries ®^ or for any other purpose,^® may not properly come under this head. Transportation. 172. The cost of conducting transportation includes not only the cost of such important items as wages and fuel but also such minor expenses as those which are nec- 187 Fed. 290, 334; Northern P. Ry. Co. v. Keyes (1898) 91 Fed. 47, 53; Chicago & N. W. Ry. Co. v. Dey (1888) 35 Fed. 866, 879, 1 L. R. A. 744, 752; Long Branch Comn. v. Tintern M. W. Co. (1905) 70 N. J. Eq. 71, 94, 62 Atl. 474, 482. 93Knoxville v. Knoxville W. Co. (1911) 212 U. S. 1, 13, 29 Sup. Ct, 148, 152, 53 L. ed. 371; In re Arkansas Rate Cases (1911) 187 Fed. 290, 334; Cedar Rapids G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 444, 120 N. W. 966, 972 (overruling Cedar Rapids W. Co. v. Cedar Rapids (1902) 118 Iowa, 234, 263, 91 N. W. 1081, 1091) ; Spring Valley W. Co. v. San Fran- cisco (1908) 165 Fed. 667, 703; Long Branch Comn. v. Tintern M. W. Co. (1905) 70 N. J. Eq. 71, 94, 62 Atl. 474, 482; Contra Costa W. Co. v. Oak- land (1904) 165 Fed. 518, 532; Northern P. Ry. Co. v. Keyes (1898) 91 Fed. 47, 53; Chicago & N. W. Ry. Co. v. Dey (1888) 35 Fed. 866, 879, 1 L. R. A. 744, 752; and see cases cited in Wyman, Public Service Corpora- tions, pp. 1034, 1037; Whitten, Valuation of Public Service Corporations, chap. 20. Compare Home T. Co. v. Carthage (1911) 235 Mo. 644, 655, 656, 139 S. W. 547, 552; Illinois C. R. Co. v. Interstate Com. Comn. (1907) 206 U. S. 441, 462, 27 Sup. Ct. 700, 707, 51 L. ed. 1128; Long Branch Comn. V. Tintern M. W. Co. (1905) 70 N. J. Eq. 71, 62 Atl. 474; Wyman, Public Service Corporations, p. 1036. 94 Cumberland T. & T. Co. v. Memphis (1908) 183 Fed. 875, 877; Contra Costa W. Co. V. Oakland (1904) 165 Fed. 518, 532; Southern Pac. Co. v. Board of R. Comrs. (1896) 78 Fed. 236, 272. 95 Chicago & G. T. Ry. Co. v. Wellman (1892) 143 U. S. 339, 345, 12 Sup. Ct. 400, 402, 30 L. ed. 176; Brooklyn H. R. Co. v. Brooklyn C. R. Co. (1908) 109 N. Y. Supp. 31, 35. And see Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 412, 14 Sup. Ct. 1047, 1059, 38 L. ed. 1014; Missouri P. Ry. Co. v. Smith (1895) 60 Ark. 221, 244, 29 S. W. 752, 755. 96Pannell v. Louisville T. W. Co. (1902) 113 Ky. 630, 68 S. W. 662; Missouri, K. & T. R. Co. v. Interstate Com. Comn. (1908) 164 Fed. 645, 648. See also Reagan v. Farmers' L. &, T. Co. (1894) 154 U. S. 362, 412, 304 JUST COilPENSATION. essary for the securing of business.^" And if losses caus- ed by the negligence of employees have occurred in spite of proper management of the railroad, such losses may be included in the operating expenses.^^ The courts recognize the fact that local transportation costs more per mile than through transportation and that, while the exact difference may never be ascertainable, working estimates of that difference can be formed.^^ So also the courts have recognized the fact that where ship- 14 Sup. Ct. 1047, 1059, 1060, 38 L. ed. 1014; Missouri P. Ry. Co. v. Smith (1895) 60 Axk. 221, 244, 29 S. W. 752, 755. Compare In re Arkansas R. Rates (1909) 168 Fed. 720, 729, 730. 97 See In re Arkansas Rate Cases (1911) 187 Fed. 290, 316. Compare United States v. Delaware, L. & W. R. Co. (1907) 152 Fed. 269; Pannell V. Louisville T. W. Co. (1902) 113 Ky. 630, 68 S. W. 662. 98 In re Arkansas Rate Cases (1911) 187 Fed. 290, 306. 99 Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 262, 22 Sup. Ct. 900, 902, 903, 46 L. ed. 1151; Chicago, M. & St. P. Ry. Co. v. Tompkins (1900) 176 U. S. 167, 177, 178, 20 Sup. Ct. 336, 340, 44 L. ed. 417; In re Arkansas Rate Cases (1911) 187 Fed. 290, 334; Shepard v. Northern P. Ry. Co. (1911) 184 Fed. 765, 812, and cases cited on p. 815, with which compare Minnesota Rate Cases, infra. As was said in North- ern P. Ry. Co. V. Keyes (1898) 91 Fed. 47, 53, "The operating expenses of a railroad consist of two principal items: (1) Cost of maintenance of plant; (2) cost of conducting transportation. The former item is con- stant, and can justly be divided between the diiferent kinds of traffic in proportion to their volume. As to the second item, however, such a divis- ion cannot properly be made; for it is agreed, by all who have had oc- casion to consider the subject, railroad commissions as well as railroad officials, that the cost of conducting transportation is, relative to income, much higher for local business than for the general business of a road. The causes of this added cost are chiefly three : ( 1 ) The shortness of the haul ; (2) the lightness of the train loads; (3) expense of billing and handling the traffic." Compare note 79, supra. — In the Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 465, 466, 469, 33 Sup. Ct. 729, 766, 767, 768, 57 L. ed. 1511, the court discusses the question and decides that the difference in cost of conducting the two classes of transportation was not shown with such accuracy as to warrant the court in declaring the state legislation unconstitutional. See also discussion in Missouri Rate Cases — Knott v. Chicago, B. & Q. R. Co. (1913) 230 U. S. 474, 504, 505, 507, 30 Sup. Ct. 975, 982, 983, 57 L. ed. 1571; Allen v. St. Louis, I. M. & S. Ry. Co. (1913) 230 U. S. 553, 558, 559, 33 Sup. Ct. 1030, 1032, 1033, 57 L. ed. 1625; Wood v. Vandalia R. Co. (1913) 231 U. S. 1, 32 Sup. Ct. 7, 58 L. ed. OPERATING EXPENSES. 305 ments are few and small they cost more per ton mile than where they are many and large.^*^^ Maintenance. 173. The cost of maintenance embraces whatever cur- rent expenditures are necessary in order to maintain the total value of the property unimpaired; ^^^ but it does not embrace expenditures which increase the value of that property. 1^2 It does not seem necessary that the money 100 Northern P. Ry. Co. v. Keyes (1898) 91 Fed. 47.— On relative cost of freight and passenger traffic see Coal & C. Ry. Co. v. Conley (1910) 67 W. Va. 129, 197, 67 S. E. 613, 642; Pennsylvania R. Co. v. Philadelphia County (1908) 220 Pa. 100, 68 Atl. 676, 15 L. R. A. N. S. 108. 101 See cases in note 93, supra. 102 Coal & C. Ry. Co. v. Conley (1910) 67 W. Va. 129, 193, 67 S. E. 613, 641; Erie v. Erie G. & M. Co. (1908) 78 Kan. 348, 354, 97 Pac. 468, 470; and see Miller, Some Questions in Connection with State Rate Regulation, 8 Mich. L. Rev. 108, 110, 111. Tlie Interstate Commerce Act (Act June 29, 1906, 34 U. S. Stat, at L. 584, 593, Fed. Stats. An., Supp., 1909, 254, 272) requires carriers subject to it to report separately the amount spent for improvements and the amount spent for operating expenses. In Illinois C. R. Co. V. Interstate Com. Comn. (1907) 206 U. S. 441, 462, 27 Sup. Ct. 700, 707, 51 L. ed. 1128, the court said, "It would seem as if expenditures for additions to construction and equipment, as expenditures for original con- struction and equipment, should be reimbursed by all of the traffic they ac- commodate during the period of their duration, and that improvements that will last many years should not be charged wholly against the revenue of a single year." — Where a wooden bridge is replaced by a steel one, or a steel bridge by a stone bridge, or a track of eighty pound rails by a track of hundred pound rails, should the additional cost be included in the or- dinary maintenance expenses or should it be given a separate classification? It seems that if earnings are spent in increasing the value of the road, which increased value may be used as a basis for estimating the constitu- tionality of rates in the future, that fact should be stated, and while that part of the expenditures which a replacement would cost should be in- cluded in the operating expenditures, the increase in cost should be separ- ated from ordinary expense of maintenance. See Hearings of Senate Com- mittee on Interstate Commerce, May, 1905, vol. IV, pp. 3085, 3111. In opposition to this view may possibly be cited Metropolitan T. Co. v. Houston & T. C. R. Co. (1898) 90 Fed. 683, which decides that under the circumstances there set forth betterments can be paid for from the gross earnings, although it is doubtful whether the case decides more than 306 JUST COMPENSATION. should be spent only for renewals. If, for instance, upon a new railroad a sum equivalent to the depreciation in property which does not yet require renewal were spent for betterments or extensions, such an expenditure which simply maintained the total value of the property at the original amount should, it seems, be considered legitimate expense of maintenance,^"^ although in the case of an older railroad where necessary renewals called for the full amount of the depreciation fund an expenditure for bet- terments, even though required by the increasing demands for transportation, could not properly be considered an expense for maintenance.^"^ So also it seems that the company must be allowed to replace from operating ex- penditures whatever losses are caused by obsolescence as well as those which are caused by wear and tear or de- cay.^"'^ Whatever maintains the total value of the prop- erty should be regarded as legitimate expense of mainte- this. Southern P. Co. v. Board of R. Comrs. (1896) 78 Fed. 236, decides that betterments may be included in the operating expenses, citing Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014, and earlier cases. In Reagan v. Farmers' L. & T. Co., while the court seems to decide as stated, it barely touches upon the question, for other facts control the case, and, moreover, many of the expenditures for so- called betterments were merely for renewals. None of the other cases cited in the Southern Pacific case involve railroad rates, and in some of them the question of betterments does not arise in any way. In Reagan v. Farmers' L. & T. Co. the court carefully points out that none of the ex- penditures for so-called betterments were for extensions. Part of the amount so expended was very properly included in the operating expenses, although it is not clear that all of the expenditure should have been so classified. 103 See Hearings of Senate Committee on Interstate Commerce, April, 1905, vol. II, p. 931; Whitten, Valuation of Public Service Corporations, chap. 20; and also Railroad Comn. of La. v. Cumberland T. & T. Co. (1909) 212 U. S. 414, 29 Sup. Ct. 357, 53 L. ed. 577, referred to at end of note 16, supra. 104 See Wyman, Public Service Corporations, sec. 1164. 105 See Whitten, Valuation of Public Service Corporations, pp. 403 et seq., 383, where the question is discussed. OPERATING EXPENSES. 307 nance; whatever increases that value should be accounted for under another head. But expenditure on account of past losses cannot be in- cluded in the cost of maintenance. If the property has been allowed to depreciate the company cannot charge against the present year expenditures on account of losses which accrued in years gone by. Past depreciation can- not be made good at the expense of present patrons.^ °^ Pa3mients to stockholders and bondholders. 174. Payments to stockholders ^°^ and to bondhold- ers/"^ however, are not part of the current expenses, but loepuget S. E. Ey. v. Railroad Comn. (1911) 65 Wash. 75, 82, 117 Pac. 739, 743. See also Southern Pac. Co. v. Board of R. Comrs. (1896) 78 Fed. 236, 272. Compare Hearings of Senate Committee on Interstate Com- merce, May, 1905, vol. Ill, p. 2149. 107 Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 266, 22 Sup. Ct. 900, 904, 46 L. ed. 1151, affirming State v. Minneapolis & St. L. R. Co. (1900) 80 Minn. 191, 200, 83 N. W. 60, 64. 108 In Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 266, 22 Sup. Ct. 900, 904, 46 L. ed. 1151, the court speaks of the propriety of including payments to bondholders as "at least doubtful." See also Miller, Some Questions in Connection with State Rate Regulation, 8 Mich. L. Rev. 108, 112. Compare Chicago & N. W. Ry. Co. v. Dey ( 1888) 35 Fed. 866, 879, 1 L. R. A. 744, 752; Wallace v. Arkansas C. R. Co. (1902) 118 Fed. 422; Chicago, M. & St. P. Ry. Co. v. Smith (1901) 110 Fed. 473.— A company iinanced only by stock subscriptions would have to be satisfied with rates based upon present conditions. The value of its property would be merely the cost of replacement. What if the road were built entirely from money received from holders of bonds, if it cost more than it would cost to replace it, and if the rate of interest named in the bonds were higher than the current rate? Should such a road be entitled to charge more for transportation than might be charged by a road built entirely by the stockholders? Such cases are not imaginary. In Lincoln G. & E. L. Co. v. Lincoln (1909) 182 Fed. 926, 929, the bonded indebtedness alone greatly exceeded the cost of the plant. See also 19 Industrial Commission Reports, 403-407; Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 11, 29 Sup. Ct. 148, 151, 53 L. ed. 371. And in Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 385-389, 72 N. W. 713, 719-721, the rate of interest on the bonds was considerably higher than the rate at which money could be borrowed in 1897. 308 JUST COMPENSATION. are both returns from investment. In finding the value of the railroad property the court does not treat the in- vestment of bondholders as a separate item, like the in- vestment of a lessor. It is, instead, part of the property of the company, part of the principal sum upon which the company is entitled to earn a revenue. For this reason, payments to bondholders cannot be regarded as operating expenses like payments to lessors, but they must be placed in the same class as payments to stockholders, as coming from the net revenue upon the entire value of the prop- erty. NET EARNINGS. What earnings are to be considered. 175. The return which the carrier receives from the use of its property is shown by the amount of the net earnings and not by the amount of the gross earnings.^ "^ The de- preciation in the value of the property, whether from wear and tear, obsolescence or any analogous cause, should be deducted from the amount of the gross earnings in com- puting the net returns from the property; ^^° and upon the same principle it seems clear that appreciation in the value of the property should be added to the revenue re- ceived from its patrons. ^^^ In passing upon the constitutionality of regulations the returns from interstate traffic are separated from the re- 109 Chicago, M. & St. P. Ry. Co. v. Tompkins (1900) 176 U. S. 167, 20 Sup. Ct. 336, 44 L. ed. 417. And see Wood v. Vandalia R. Co. (1913) 231 U. S. 1, 34 Sup. Ct. 7, 58 L. ed.; Morgan's L. & T. R. Co. v. Railroad Comn. of La. (1911) 127 La. 636, 53 So. 890; Chicago, M. & St. P. Ry. Co. V. Smith (1901) 110 Fed. 473; and sec. 171, supra. 110 See sec. 171, supra. 111 See authorities cited in note 102, supra, Whittcn, Valuation of Public Service Corporations, sees. 122, 124; Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 381 et seq., 72 N. W. 713, 718 et seq. NET EARNINGS. 309 turns from intrastate traffic. A state cannot require a railroad to carry local traffic at inadequate rates upon the ground that the railroad is compensated by the profitable- ness of its interstate traffic ;^^2 and, conversely, it must fol- low that the federal government cannot require a rail- road to carry interstate traffic at inadequate rates upon the ground that it is compensated by the profitableness of its local traffic. Proving amount of earnings. 176. In estimating the probable earnings of the com- pany under the rates considered, the courts will not as- sume as a matter of law that a reduction of rates will di- minish the income of the company, but such an effect must be proved.^ ^^ Rates fair to public. 177. A railroad must transport at rates which are rea- sonable to its patrons.^ ^^ While the amount of business 112 See note 48 in Chap. 1, supra. 113 Chicago & G. T. Ry. Co. v. Wellman (1892) 143 U. S. 339, 12 Sup. Ct. 400, 30 L. ed. 176; Chicago U. T. Co. v. Chicago (1902) 199 111. 484, 547, 65 N. E. 451, 470, 59 L. R. A. 631, 653; Winchester & L. T. R. Co. v. Croxton (1896) 98 Ky. 739, 34 S. W. 518, 33 L. R. A. 177. See also Wood V. Vandalia R. Co. (1913) 231 U. S. 1, 34 Sup. Ct. 7, 58 L. ed.; Rail- road Comn. of La. v. Cumberland T. & T. Co. (1909) 212 U. S. 414, 426, 427, 29 Sup. Ct. 357, 362, 363, 53 L. ed. 577; Willcox v. Consolidated G. Co. (1909) 212 U. S. 19, 51, 29 Sup. Ct. 192, 199, 53 L. ed. 382; Atlantic C. L. R. Co. V. Florida (1906) 203 U. S. 256, 260, 27 Sup. Ct, 108, 109, 51 L. ed. 174; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 404, 14 Sup. Ct. 1047, 1057, 38 L. ed. 1014; State v. Adams Ex. Co. (1909) 85 Neb. 25, 32, 122 N. W. 691, 694; Central of Ga. Ry. Co. v. McLendon (1907) 157 Fed. 961, 976; Smalley, Railroad Rate Control (Publications of Ameri- can Economic Assn.) 6, 7. Compare Seaboard A. L. Ry. Co. v. Railroad Comn. of Alabama (1907) 155 Fed. 792. 114 "It would not ... be claimed that the railroads could in all cases be allowed to charge grossly exorbitant rates as compared with rates paid upon other roads, in order to pay dividends to stockholders. Each case 310 JUST COIklPENSATION. done by the road may affect the rates charged/ ^'^ a road having but little traffic may not charge extortionate rates in order to earn profits on that traffic; ^^^ and while the carrier is entitled to fair compensation, so also the public is entitled to carriage at rates which are fair to it, and the state or federal government in making regulations may very properly consider the value of the services to the public.^^"^ Rates fair to railroad. 178. But, if a railroad may do so consistently with the must be determined by its own considerations, and while the rule stated in Smyth v. Ames [see sec. 168, supra] is undoubtedly sound as a gen- eral proposition that the railways are entitled to a fair return upon the capital invested [see sec. 168, supra] it might not justify them in charging an exorbitant mileage in order to pay operating expenses, if the conditions of the country did not permit it:" Minneapolis & St. L. R. Co. V. Minnesota (1902) 186 U. S. 257, 268, 22 Sup. Ct. 900, 905, 46 L. ed. 1151. See also Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 596, 597, 17 Sup. Ct. 198, 205, 41 L. ed. 560; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 412, 14 Sup. Ct. 1047, 1059, 1060, 38 L. ed. 1014; Alabama & V. Ry. Co. v. Mississippi R. Comn. (1906) 203 U. S. 496, 501, 27 Sup. Ct. 163, 165, 51 L. ed. 289; Puget S. E. Ry, v. Railroad Comn. (1911) 65 Wash. 75, 87, 117 Pac. 739, 744; Missouri, K. & T. R. Co. v. Interstate Com. Comn. (1908) 164 Fed. 645, 648; Brunswick & T. W. Dist. V. Maine W. Co. (1904) 99 Me. 371, 380, 59 Atl. 537, 540; Interstate Com. Comn. V. Louisville & N. R. Co. (1902) 118 Fed. 613; Bruce, State Regu- lation of Railroad Rates and Charges, 62 Cent. L. J. 458, 460; Smalley, Railroad Rate Control (Publications of American Economic Assn.) 94, 97; Washington S. Ry. Co. v. Commonwealth (1911) 112 Va. 515, 71 S. E. 539; Coal & C. Ry. Co. v. Conley (1910) 67 W. Va. 129, 190, 67 S. E. 613, 639. 115 Smyth v. Ames (1898) 169 U. S. 466, 540, 18 Sup. Ct. 418, 431, 42 L. ed. 819. 116 See note 34, supra; Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 17 Sup. Ct. 198, 41 L. ed. 560; and also Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014. iiT Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151. See also Smyth v. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; and cases cited in note 114, supra. But compare authorities cited at end of note 164, infra. NET EARNINGS. 311 above rule, it is entitled to receive a profit from the use of its property. The United States Supreme Court has not stated definitely just what rate of profit must be al- lowed,^ ^^ and there is a wide range in the decisions of the state and the lower federal courts. ^^'^ It is possible, how- ever, to state the principles which should govern the courts in deciding whether or not the revenues of a rail- road are reduced to an unconstitutional extent. Constitutional rate of return. 179. As a general rule ^^^ a governmental regulation should be held unconstitutional if under it the carrier is not allowed to receive from all of its transportation which is subject to that government, taken as an entirety,^ ^^ whatever rate of return it can be shown would unques- tionably be received at the present time in other enter- prises involving the same business hazards. ^^- Of course, 118 See sec. 180, infra. 119 See sec. 181, infra. 120 See, however, sec. 177, supra. 121 See sees. 184-187, infra. i22WiIlcox V. Consolidated G. Co. (1009) 212 U. S. 19, 48, 29 Sup. Ct. 192, 198, 53 L. ed. 382; Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 459, 118 Pac. 354, 366, 38 L. R. A. N. S. 1209; Puget S. E. Ry. V. Railroad Comn. (1911) 65 Wash. 75, 97, 117 Pac. 739, 749; Des Moines W. Co. V. Des Moines (1911) 192 Fed. 193, 199; Central of Ga. Ry. Co. v. Railroad Comn. of Alabama (1908) 161 Fed. 925, 993; Trustees v. Sara- toga G., E. L., H. & P. Co. (1907) 122 N. Y. App. Div. 203, 220, 107 N. Y. Supp. 341, 354; Consolidated G. Co. v. New York (1907) 157 Fed. 849, 871; San Diego W. Co. v. San Diego (1897) 118 Cal. 556, 570, 50 Pac. 633, 637, 38 L. R. A. 460; Whitten, Valuation of Public Service Corporations, p. 659; Coal & C. Ry. Co. v. Conley (1910) 67 W. Va. 129, 189, 67 S. E. 613, 639. Compare People v. Public Service Comn. (1912) 153 N. Y. App. Div. 129, 138 N. Y. Supp. 434; Fenwick, The Judicial Test of a Reasonable Railroad Rate, 8 Mich. L. Rev. 445, 447, 448 ; note 123, infra. On this subject as on so many others the opinion of the majority of the court in Pennsylvania R. Co. V. Philadelphia County (1908) 220 Pa. 100, 115, 08 Atl. 676, 679, 15 L. R. A. N. S. 108, 117, is clearly wrong. The opinion refers to the original 312 JUST COI^rPENSATION. the amount of risk involved and the rate of return neces- sarily vary from time to time and in different parts of the country; ^-^ and a change in economic conditions may make regulations which have been constitutional become unconstitutional or make regulations which have been un- constitutional become constitutional.^^'* Yet, on the other hand, the court has no right to con- sider whether it would have established the schedule in- volved if it had been given the power.^^^ It has no right to apply common law tests. ^-^ The question before it is simply whether the schedule of rates which was estab- lished by the appropriate organ of government clearly violates the Constitution.^ ^'^ The amount of compensa- risks of the business. The original risk is as objectionable a basis as the original value. And see Whitten, op. cit., p. 702. — It does not follow that if other businesses are not regulated railroads may not be regulated : with Central of Ga. Ry. Co. v. R. Comn. of Alabama (1908) 161 Fed. 925, 995, compare Chap. 5, supra. i23Willcox V. Consolidated G. Co. (1909) 212 U. S. 19, 48, 29 Sup. Ct. 192, 198, 53 L. ed. 382; Pioneer T. & T. Co. v. Westenhaver (1911) 29 Okla. 429, 459, 118 Pac. 354, 366, 38 L. R. A. N. S. 1209; Puget S. E. Ry. V. Railroad Comn. (1911) 65 Wash. 75, 97, 117 Pac. 739, 748; Brunswick & T. W. Dist. V. Maine W. Co. (1904) 99 Me. 371, 380, 59 Atl. 537, 540. And it may differ in different parts of the country: Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 385-390, 72 N. W. 713, 719-721. The legal rate varies greatly in different parts of the country. 124 See Missouri Rate Cases— Knott v. Chicago, B. & Q. R. Co. ( 1913) 230 U. S. 474, 508, 33 Sup. Ct. 975, 983, 57 L. ed. 1595; Minnesota Rate Cases- Simpson V. Shepard (1913) 230 U. S. 352, 473, 33 Sup. Ct. 729, 769, 57 L. ed. 1511; Smyth v. Ames (1898) 171 U. S. 361, 18 Sup. Ct. 888, 43 L. ed. 197; Coal & C. Ry. Co. v. Conley (1910) 67 W. Va. 129, 203, 67 S. E. 613, 645; Chicago & N. W. Ry. Co. v. Dey (1888) 35 Fed. 866, 875, 1 L. R. A. 744, 750. Compare Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 387, 390, 72 N. W. 713, 720, 721. 125 See sec. 33, supra; and Whitten, Valuation of Public Service Cor- porations, pp. 690 et seq., and cases there cited. 126 See sec. 33, supra. 127 See references in note 125, supra. The correct position is taken in the opinion of Stewart, J., dissenting, in Pennsylvania R. Co. v. Philadel- phia County (1908) 220 Pa. 100, 133, 68 Atl. 676, 681, 15 L. R. A. 108, 119. NET EARNINGS. 313 tion for property taken for public use is not primarily a judicial question ;^^^ and even where it is contended that the railroad is not being accorded the equal protection of the laws, it must be remembered that the court concedes that legislatures and commissions possess considerable lee-way.^-^ But before going further let us note the decisions on the rate of return to which we have already referred."^ No particular rate fixed by Supreme Court. 180. As we have already seen,^"^ the United States Su- preme Court has not fixed definitely the extent to which the rate of return to the carrier may be reduced. Some years ago it declared that ''It cannot be said that a cor- poration is entitled, as of right, and without reference to the interests of the public, to realize a given per cent upon its capital stock. . . . Each case must depend upon its special facts. "^^- The court has not even named a rate of return upon the proper valuation to which a rail- road would be entitled in normal cases. In a gas case it conceded that under the facts of the case the company was entitled to six per cent upon the value of the property, although it reversed a decree which enjoined the enforce- ment of the statute involved; ^^^ and yet on the same day in a water case in which the opinion was handed down by 128 See Bauman v. Ross (1897) 167 U. S. 548, 593, 17 Sup. Ct. 966, 983, 42 L. ed. 270, cases there cited, and discussion in note 17 of Chap. 2, supra. 129 See sees. 139, 140, 143, supra. Compare 7 A. & E. An. Cas. 478. 130 In sec. 178, supra. 131 See sec. 178, supra. 132 Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 596, 597, 17 Sup. Ct. 198, 205, 41 L. ed. 560. i33Willcox V. Consolidated G. Co. (1909) 212 U. S. 19, 50, 29 Sup. Ct. 192, 199, 53 L. ed. 382. 314 JUST COMPENSATION. another justice the court did not feel called upon to de- termine whether a demonstrated reduction of income to four per cent would or would not be constitutional.^^* In an earlier case it had said that it could not declare an act unconstitutional merely because under it the com- pany could not earn more than four per cent upon its capital stock.''^^ The court has, however, declared un- constitutional regulations which left little or no return to investors in the property ;^^^ and, on the other hand, it has sustained a law which limited the return to an irrigation 134 Kjioxville V. Knoxville W. Co. (1909) 212 U. S. 1, 17, 29 Sup. Ct. 148, 154, 53 L. ed. 371. 135 "It is proper to say that if the answer had not alleged, in substance, that the tolls prescribed by the act of 1890 were wholly inadequate for keeping the road in proper repair and for earning dividends, we could not say that the act was unconstitutional merely because the company (as was alleged and as the demurrer admitted) could not earn more than four per cent on its capital stock:" Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 596, 17 Sup. Ct. 198, 205, 41 L. ed. 560. 136 As the court said in Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 17, 29 Sup. Ct. 148, 153, 53 L. ed. 371, "It cannot be doubted that in a clear case of confiscation it is the right and duty of the court to annul the law. Thus in Reagan v. Farmers' L. & T. Co. ( 1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014, where the property was worth more than its capi- talization, and upon the admitted facts the rates prescribed would not pay one-half the interest on the bonded debt; in Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 17 Sup. Ct. 198, 41 L. ed. 560, where the rates prescribed would not even pay operating expenses; in Smyth v. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819, where the rates prescribed left substantially nothing over operating expenses and cost of service; and in Ex parte Young (1908) 209 U. S. 123, 28 Sup. Ct. 441, 52 L. ed. 714, 13 L. R. A. N. S. 932, 14 A. & E. An. Cas. 764, where, on the aspect of the case which was before the court, it was not disputed that the rates prescribed were in fact confiscatory, injunctions were severally sus- tained. But the case before us is not a case of this kind." See also South- ern Ry. Co. V. St. Louis H. & G. Co. (1909) 214 U. S. 297, 29 Sup. Ct. 678, 53 L. ed. 1004; Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 469-473, 33 Sup. Ct. 729, 768, 769, 57 L. ed. 1511. Compare Norfolk & S. T. Co. V. Virginia (1912) 225 U. S. 264, 32 Sup. Ct. 828, 56 L. ed. 1082, where the court sustained a statute which made the keeping of a toll road in repair a condition precedent to the right to collect tolls. To the same effect is Back R. N. T. Co. v. Homberg (1903) 96 Md. 430, 54 Atl. 82. NET EARNINGS. 315 company to six per cent,^^^ and an ordinance under which a gas company received more than six per cent.^"^ Other decisions in conflict. 181. There is also a wide range in the decisions of the state and lower federal courts. It has been held, for ex- ample, that ' ' the right of judicial interference exists only when the schedule of rates established will fail to secure to the owners of the property some compensation or in- come from their investment. As to the amount of such compensation, if some compensation or reward is in fact secured, the legislature is the sole judge." ^^^ And in other cases state regulations have been sustained although the rates of return from the property were not large.^^^ 137 Stanislaus County v. San Joaquin & K. R. C. & I. Co. (1904) 192 U. S. 201, 213, 24 Sup. Ct. 241, 246, 48 L. ed. 406. Compare Louisville v. Cumberland T. & T. Co. (1912) 225 U. S. 430, 436, 32 Sup. Ct. 741, 742, 56 L. ed. 1151. 138 Cedar Rapids G. L. Co. v. Cedar Rapids (1912) 223 U. S. 655, 32 Sup. Ct. 389, 56 L. ed. 594. 139 Chicago & N. W. Ry. Co. v. Dey (1888) 35 Fed. 866, 878, 879, 1 L. R. A. 744, 752. See also Chicago, B. & Q. R. Co. v. Dey (1889) 38 Fed. 656, 663; Tilley v. Savannah, F. & W. R. Co. (1881) 5 Fed. 641, 663, 664. Compare comments on above language in Southern P. Co. v. Board of R. Comrs, (1896) 78 Fed. 236, 261. 140 4 2-5% held constitutional. "This estimate of earnings may be very materially reduced, or the estimate of the value of the plant be very ma- terially increased, before the court will be justified in saying that the plain- tiff's property is being exposed to destruction or confiscation by an unpro- fitable schedule of rates:" Cedar R. W. Co. v. Cedar Rapids (1902) 118 Iowa, 234, 262, 91 N. W. 1081, 1091. 2^% on terminals and 5% on remainder of road not confiscatory: Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 384, 389, 72 N. W. 713, 719, 721. 5% not con- fiscatory, in spite of fact that current rates of interest were tempor- arily higher: Spring V. W. Co. v. San Francisco (1908) 165 Fed. 667, 684, 685. See also Central of Ga. Ry. Co. v. McLendon (1907) 157 Fed. 961, 974; Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 450, 120 N. W. 966, 974. Earnings of 6% or over sustained in Home T. Co. v. Carthage (1911) 235 Mo. 644, 667, 139 S. W. 547, 553; Arkadelphia E. L. Co. V. Arkadelphia (1911) 99 Ark. 178, 188, 137 S. W. 1093, 1097; 316 JUST COMPENSATION. But, on the other hand, other courts have declared uncon- stitutional not only regulations which left returns insuffi- cient to pay operating expenses or insufficient to pay any returns to stockholders,^'*^ but also regu- lations which allowed greater returns from the prop- erty,^'*^ in some cases declaring that the carriers were en- titled to at least six per cent,^^^ and in other cases that Puget S. E. Ry. v. Railroad Comn. (1911) 65 Wash. 75, 97, 117 Pac. 739, 749. — On this note see also Whitten, Valuation of Public Service Cor- porations, chap. 30. 141 Louisville & N. R. Co. v. Railroad Comn. of Alabama (1912) 196 Fed. 800, 819; Cumberland T. & T. Co. v. Memphis (1908) 183 Fed. 875, 876; In re Arkansas R. Rates (1908) 163 Fed. 141, 143; Seaboard A. L. Ry. Co. v. Railroad Comn. (1907) 155 Fed. 792, 807; Ozark-Bell T. Co. v. Springfield (1905) 140 Fed. 666, 669; Wallace v. Arkansas C. R. Co. (1902) 118 Fed. 422, 424. See also Morgan's L. & T. R. Co. v. Railroad Comn. of La. (1911) 127 La. 636, 670, 53 So. 890, 902; Gulf, C. & S. F. Ry. Co. v. Railroad Comn. of Texas (1909) 102 Tex. 338, 116 S. W. 795; Southern I. Ry. Co. V. Railroad Comn. (1909) 172 Ind. 113, 128, 87 N. E. 966, 971; Southern Ry. Co. v. McNeill (1907) 155 Fed. 756, 788; Chicago C. Ry. Co. V. Chicago (1905) 142 Fed. 844; Pensacola & A. R. Co. v. State (1889) 25 Fla. 310, 332, 333, 5 So. 833, 843, 3 L. R. A. 661. Compare Boise City L & L. Co. v. Clark (1904) 131 Fed. 415, 422; State v. Sutton (1912) 84 N. J. L., 84 Atl. 1057; sec. 186, infra. 142 1.21% held confiscatory: Trust Co. of A. v. Chicago, P. & St. L. Ry. Co. (1912) 199 Fed. 593, 610. 3.97% held confiscatory: Spring V. W. W. v. San Francisco (1911) 192 Fed. 137, 193. 4^% held confiscatory: Mil- waukee E. Ry. & L. Co. V. Milwaukee (1898) 87 Fed. 577, 585, 586. Water company entitled to at least 5%: Spring V. W. W. v. San Francisco ( 1903) 124 Fed. 574, 599; followed in Contra Costa W. Co. v. Oakland (1904) 165 Fed. 518, 532. Water company should receive at start 5%: Long Branch Comn. v. Tintern M. W. Co. (1905) 70 N. J. Eq. 71, 94, 95, 62 Atl. 474, 482, 483. — On this note see also Whitten, Valuation of Public Service Cor- porations, chap. 30. 143 St. Louis & S. F. R. Co. v. Hadley (1909) 168 Fed. 317, 324, 354; Trust Co. of A. v. Chicago, P. & St. L. Ry. Co. (1912) 199 Fed. 593, 605. See also Owensboro v. Cumberland T. & T. Co. (1909) 174 Fed. 739. En- titled to 6%, but that rate shown in this case: Lincoln G. & E. L. Co. v. Lincoln (1909) 182 Fed. 926, 929, reversed on another ground in Lincoln G. & E. L. Co. V. Lincoln (1912) 223 U. S. 349, 32 Sup. Ct. 271, 56 L. ed. 466. Not less than the legal rate of interest (6%. In other words, the maximiim rate allowed on loans, however great the risk, is necessarily the minimum rate which may constitutionally be allowed on investments in NET EARNINGS. 317 they were entitled to seven ^'^^ or seven and a half ^**^ or even eight per cent.^"*^ Distribution between stockholders and bondholders. 182. We have already seen that the principal upon which the return is to be based is the cost of producing at the present time a railroad which would be equally effi- railroad securities) : Pennsylvania R. Co. v. Philadelphia County (1908) 220 Pa. 100, 114, 68 Atl. 676, 678, 15 L. R. A. N. S. 108, 117. Entitled to 6%. "He would expect, and have a just and reasonable right to expect, a return of 6%, not because that happens to be the interest rate by law es- tablished in the state of New York, but because it is the return ordinarily sought and obtained on investments of that degree of safety in the city of New York." "As was observed by counsel, equally learned in law and poli- tics, it would be easy to amend the legal rate, and judicial dependence upon an interest rate susceptible of change by the same legislature that regu- lates the rate of earnings would be, to say the least, inadvisable:" Con- solidated Gas Co. V. New York (1907) 157 Fed. 849, 871, 870, reversed on another ground in Willcox v. Consolidated Gas Co., cited in note 133, supra. — Entitled to "amount equal, at least, to the usual and legal rate of interest in the locality where the railroad is situated:" Louisville & N. R. Co. v. Brown (1903) 123 Fed. 946, 951. See also Pioneer T. & T. Co. v. Westen- haver (1911) 29 Okla. 429, 460, 118 Pac. 354, 366, 38 L. R. A. N. S. 1209. Compare Brunswick & T. W. Dist. v. Maine W. Co. (1904) 99 Me. 371, 379, 380, 59 Atl. 537, 540, which did not involve the constitutionality of rate regulations but in which the court said that "An equivalent to the prevail- ing rate of interest might be a reasonable return, and it might not. It might be too high or it might be too low." i44Shepard v. Northern P. Ry. Co. (1911) 184 Fed. 765, 816, reversed on another ground in Minnesota Rate Cases — Simpson v. Shepard (1913) 230 U. S. 352, 33 Sup. Ct. 729, 57 L. ed. 1511; Cumberland T. & T. Co. v. Louisville (1911) 187 Fed. 637, 658; Cumberland T. & T. Co. v. Railroad Comn. of La. (1907) 156 Fed. 823, 833, 834, reversed on another ground in Railroad Comn. of La. v. Cumberland T. & T. Co. (1909) 212 U. S. 414, 29 Sup. Ct. 357, 53 L. ed. 577. 145 In re Arkansas Rate Cases (1911) 187 Fed. 290, 348. 146 Des Moines W. Co. v. Des Moines (1911) 192 Fed. 193, 199. "The current rate of profit upon property used in business enterprises similar to railroads gives a net income upon the value of such property not lower than 8% per annum. Whether we take the legal rate of profit by way of interest on loans of money, or the rate of profit which common experience shows to be the average, and, therefore, approximately a just, return from 318 JUST COMPENSATION. cient.^''^ This is true whether the road was built entirely from money contributed by the stockholders or whether most of the capital came from bondholders. It is only the completed road which is considered. For this reason the rate of return to the company can- not depend upon how much of the revenue is to go to bondholders and how much to stockholders.^"*^ The meth- ods of financing any particular company cannot be al- lowed to make any difference in the results. The hazards of the business are to be considered as falling upon the company as a whole and not as the risks of the stockhold- ers or the bondholders as separate classes.^ ^^ If, then, the company has made a bad bargain with its bondholders the stockholders should suffer from it, just as they should suffer if the company has made a bad bargain with a con- struction company; and, on the other hand, if the company has secured money from bondholders upon favorable terms the stockholders certainly are entitled to the ad- vantages which should come from good financial manage- rnent.^^^ EXCEPTIONAL CONDITIONS. 183. As we have already said, while the factors which we have considered govern nonnal cases in which it is the use of other forms of property, both modes lead to the same result:" Central of Ga. Ry. Co. v. Railroad Comn. of Alabama (1908) 161 Fed. 925, 996. See also Montana, W. & S. R. Co. v. Mcrley (1912) 198 Fed. 991, 1007. 147 See sec. 157, supra. 148 See sec. 156, supra. 149 The risk per dollar upon the property as a whole is less than the risk per dollar on the investment of stockholders and greater than the risk per dollar on the investment of bondholders, where a large part of the capi- tal comes from bondholders. 150 On this section as a whole see Whitten, Valuation of Public Service Corporations, sees. 792, 735; Steenerson v. Great N. Ry. Co. (1897) 69 Minn. 353, 385-389, 72 N. W. 713, 719-721. EXCEPTIONAL CONDITIONS. 319 claimed that the schedules as entireties are unconstitu- tional, there are also at times exceptional conditions which must be taken into consideration.^ ^^ Some of the questions which may be raised are easily solved. Thus, while a schedule of rates may be constitu- tional at one time and unconstitutional at another time,^'^^ the courts would doubtless recognize the importance to the public of stability of rates ^^^ and would not declare that rates which had been constitutional became unconsti- tutional because of a change in conditions which was slight or appeared likely to be of but short duration. ^^^ And, on the other hand, if a railroad were built for a temporary purpose, as in the case of a logging railroad, where the sources of traffic would be depleted within a few years, it would unquestionably be entitled during the years when it was being used for that purpose to a higher rate of return upon the value of its property than could be claimed in the case of a normal road.^^^ But it is not clear just how far a railroad must be al- lowed to earn a revenue upon value which does not repre- sent investment. Where there has been a general increase in the value of land in the territory through which a rail- 151 Sec. 154, supra. 152 Sec. 179, supra. 153 Sec. 177, supra. 154 Sec. 158, supra. 155 In the case of a road properly located which would completely exhaust the sources of traffic within ten years from the time of its construction, the depreciation during those ten years would be the difference between the cost of reproduction new at the beginning of that period and the value at the end of that period of the property for purposes other than the use of that particular road. Earnings during those ten years should not only yield adequate returns upon the value of the property but should also be sufficient to cover that depreciation. As to roads whose traffic is insuffi- cient to warrant returns upon the full cost of reproduction see authorities cited in note 34, supra. 320 JUST COIMPENSATION. road runs, a similar increase in the value of the land of the company should be recognized; '^^^ yet if land imme- diately along the route of a railroad has increased in value because of the presence of the railroad to a greater extent than land more remote from the tracks, that part of the increase in value should be ignored.^'*" And if a railroad were allowed by a state to extend its tracks through prop- erty of which the title remained in the state, the value of that right of way could not be included in the value upon which the railroad was entitled to earn a revenue.^^^ But would or would not the law be different if the state had conveyed title in that land to the railroad company and the company insisted upon receiving an income sufficient to allow of returns upon that part of its property? ^^^ PARTICULAR RATES. Decisions that only schedule as entirety may be consid- ered. 184. Thus far we have considered simply cases in which it was claimed that the schedule as an entirety was un- constitutional. We must now observe cases in which the attack is restricted to part of the rates. The court has declared repeatedly that if the state al- 156 See sees. 155 et seq., 175, supra; Whitten, Valuation of Public Service Corporations, chap. 6. But compare Willcox v. Consolidated G. Co. (1909) 212 U. S. 19, 52, 29 Sup. Ct. 192, 200, 53 L. ed. 382; In re Advances in Rates— Western Case (1911) 20 I. C. C. 307, 337 et seq. 157 See note 30, supra. 158 Lincoln G. & E, L. Co. v. Lincoln (1909) 182 Fed. 926, 928. See also Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 437, 438, 120 N. W. 966, 970. 159 As bearing on this question see Cumberland T. & T. Co. v. Louisville (1911) 187 Fed. 637, 647; Cedar R. G. L. Co. v. Cedar Rapids (1909) 144 Iowa, 426, 437, 438, 120 N. W. 966, 970; Whitten, Valuation of Public Ser- rice Corporations, p. Ill, chaps. 8, 7. PARTICULAR RATES. 321 lows a railroad to earn a suitable revenue from its local business as a whole it may require the company to carry at unprofitable rates upon separate parts of the road ^^° and upon separate kinds of traffic.^^^ Such statements 160 St. Louis & S. F. Ry. Co. v. Gill (1895) 156 U. S. 649, 15 Sup. Ct. 484, 39 L. ed. 567. The question is discussed more fully in St. Louis & S. F. Ry. Co. V. Gill (1891) 54 Ark. 101, 15 S. W. 18, 11 L. R. A. 452. See also Chicago U. T. Co. v. Chicago (1902) 199 111. 579, 65 N. E. 470; South- ern P. Co. V. Board of R. Comrs. (1896) 78 Fed. 236, 263, 264; Missouri P. Ry. Co. V. Smith (1895) 60 Ark. 221, 29 S. W. 752; Ex parte Koehler (1885) 23 Fed. 529; Wyman, Public Service Corporations, sec. 1175. And see Interstate Com. Comn. v. Louisville & N. R. Co. (1902) 118 Fed, 613, where losses on one part of the line did not justify the rates there charged by the carrier. Compare Steenerson v. Great N. Ry. Co. ( 1897 ) 69 Minn. 353, 72 N. W. 713, which decides that "where . . . portion of the line is not self-supporting, but is an encumbrance on, and not a feeder of, the rest of the line or system, ... in determining what are reasonable rates for the rest of the line or system, such portion may be rejected." 161 In the Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 466, 33 Sup. Ct. 729, 767, 57 L. ed. 1511, the court said, "We express no opinion with respect to the method adopted in dividing expenses between the passenger and freight departments. For the purpose of determining whether the rates permit a fair return, the results of the entire intrastate business must be taken into account." In Willcox v. Consolidated Gas Co. (1909) 212 U. S. 19, 54, 29 Sup. Ct. 192, 200, 201, 53 L. ed. 382, the court said, "The only interest of the complainant in question is to find out whether, by the reduction to the city, the complainant is upon the whole unable to realize a return sufficient to comply with what it has the right to demand. . . . We cannot see from the whole evidence that the price fixed for gas supplied to the city by wholesale, so to speak, would so reduce the profits from the total of the gas supplied as to thereby render such total profits insufficient as a return upon the property used by the complain- ant. So long as the total is enough to furnish such return it is not im- portant that with relation to some customers the price is not enough." See also 212 U. S. at 21. In Minneapolis & St. L. R. Co. v. Minnesota (1902) 186 U. S. 257, 22 Sup. Ct. 900, 46 L. ed. 1151, where the constitu- tionality of coal rates was considered, the court said, "Notwithstanding the evidence of the defendant that, if the rates upon all merchandise were fixed at the amount imposed by the commission upon coal in carload lots, the road would not pay its operating expenses, it may well be that the existing rates upon other merchandise, which are not disturbed by the commission may be sufficient to earn a large profit to the company, though it may earn little or nothing upon coal in carload lots. In Smyth v. Ames we expressed the opinion that the reasonableness or unreasonableness of rates prescribed 322 JUST COMPENSATION. by a state for the transportation of persons or property wholly within its limits, must be determined without reference to the interstate business done by the carrier, or the profits derived from it, but it by no means fol- lows that the companies are entitled to earn the same percentage of profits upon all classes of freight carried. . . . We do not think it beyond the power of the state commission to reduce the freight upon a particular arti- cle, provided the companies are able to earn a fair profit upon their entire business, and the burden is upon them to impeach the action of the com- mission in this particular. ... In exercising its power of supervising such rates the commission is not bound to reduce the rates upon all classes of freight, which may perhaps be reasonable, except as applied to a particular article; and if, upon examining the tariffs of a certain road, the commis- sion is of opinion that the rate upon a particular article, or class of freight, is disproportionately or unreasonably high, it may reduce such rate, not- withstanding that it may be impossible for the company to determine with mathematical accuracy the cost of transportation of that particular article as distinguished from all others. Obviously such a reduction could not be shown to be unreasonable simply by proving that, if applied to all classes of freight, it would result in an unreasonably low rate. ... It is suffi- cient, however, for the purpose of this case to say that the action of the commission in fixing the rate has not been shown to be so unjust or unrea- sonable as to amount to a taking of property without due process of law." In Smyth v. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819, it was decided that the rates as an entirety were so low as to prevent the companies from earning just compensation. In fact only the freight rates were considered. The decree therein was modified later (1898) 171 U. S. 361, 18 Sup. Ct. 888, 43 L. ed. 197, the court saying, "It was appropriate and necessary to inquire as to the earnings of the respective companies under the rates which they had established — looking at those rates, also, as an entirety. In this way we ascertained the probable effect of the statute in question. We did not intend, by an affirmance of the several decrees, to adjudge that the railroad companies should not, at any time in the future, if they saw proper, reduce the rates, or any of them, under which they were conducting business at the time the final decrees were rendered, nor that the state board of transportation should not reduce rates on specific or par- ticular articles below the rates which the companies were charging on such articles when the decrees were entered. It may well be that on some par- ticular article the railroad companies may deem it wise to make a reduc- tion of the rate, and it may be that the public interests will justify the state board of transportation in ordering such reduction. We have not laid down any cast-iron rule covering each and every separate rate. We only adjudged that the enforcement of the schedule of rates established by the state statute, looking at such rates as a whole, would deprive the railroad com- panies of the compensation they were legally entitled to receive. We did not pass judgment upon the reasonableness or unreasonableness of the rates on any particular article prescribed by the statute or by the railroad companies. If the state should by statute, or through its board of trans- PARTICULAR RATES. 323 have been made in a number of leading cases; and the same position has been taken by state and lower federal courts.^ ^2 portation, prescribe a new schedule of rates, covering substantially all arti- cles, and which would materially reduce those charged by the companies respectively, or should by a reduction of rates on a limited number of arti- cles make its schedule of rates, as a whole, produce the same result, the question will arise whether such rates, taking into consideration the rights of the public as well as the rights of carriers, are consistent with the prin- ciples announced by this court in the opinion heretofore delivered." In St. Louis & S. F. Ry. Co. v. Gill (1895) 156 U. S. 649, 15 Sup. Ct. 484, 39 L. ed. 567 (1891) 54 Ark. 112, 15 S. W. 18, 11 L. R. A. 462, a decision that the company may be required to carry at a loss upon separate parts of the road was sustained by reasoning which apparently would apply to the car- riage of separate kinds of trafl&c. 162 In Matthews v. Board of Corp. Comrs. (1901) 106 Fed. 7, 10, where it was not shown that the particular order of the commission was unjust, the court said, citing Smyth v. Ames (note 161, supra), that "the Supreme Court of the United States, in deciding whether the rates fixed under legis- lative authority violate the Fourteenth Amendment, do not rest their judg- ment on one set of rates for specific articles, but they take into consid- eration all the rates on all articles, and decide whether, as a whole, the result is unreasonable." Smyth v. Ames does not establish such a rule, although consistent with it. In Missouri P. Ry. Co. v. Smith (1895| 60 Ark. 221, 29 S. W. 752, an allegation that statutory rates of fare were inadequate was held bad on demurrer because it did not show that statutory rates prevented a profit on the company's traffic as a whole. In Chicago & N. W. Ry. Co. V. Dey (1888) 35 Fed. 866, 881, 1 L. R. A. 744, 753, the court granted a preliminary injunction restraining the enforcement of a schedule of freight charges, but said that "the schedule as a whole must control, and its validity or invalidity does not depend upon the sufficiency or insuffi- ciency of the rates for any few particular subjects of transportation." In Pensacola & A. R. Co. v. State (1889) 25 Fla. 310, 331, 342, 5 So. 833, 842, 847, 3 L. R. A. 661, 669, 672, decided after the Minnesota case referred to in note 163, infra, had been decided by the state court but before it had been passed upon by the higher court, that case was distinguished as not "involving the entire rates, but only the rate on one article, and there was no contention that the entire tariffs, as prescribed by the commissioners, would not pay operating expenses. The fact that the tarifif on simply one or several articles may be unremunerative is not ground for an assumption that the tarifi"s are so as a whole, nor reason to our minds for judicial interference in behalf of the railroad company." In the Florida case a plea that the passenger rates were unremunerative was insufficient, but a further plea that the rates as a whole were unremunera- tive was held to be good. See also People v. Public Service Comn. (1912) 324 JUST COMPENSATION. Decisions on particular rates. 185. On the other hand, without discussing the ques- tion, the court has declared unconstitutional Minnesota regulations which related only to milk rates^^^ and Ne- braska regulations which related only to freight rates j^^'* and in a recent case, while it refused to declare a particu- lar rate invalid, saying that the evidence was insufficient and calling attention to "the great difficulty in the at- tempt to measure the reasonableness of charges by refer- ence to the cost of transporting the particular class of freight concerned, "^^^ it affirmed the decree of the state court ' ' without prejudice to the right of the railroad com- pany to reopen the case by appropriate proceedings if, 153 N. Y. App. Div. 129, 138 N. Y. Supp. 434; Ex parte Koehler (1885) 23 Fed. 529, 532. 163 Chicago, M. & St. P. Ky. Co. v. Minnesota (1890) 134 U. S. 418, 10 Sup. Ct. 462, 33 L. ed. 970. Nothing was said as to the revenue from the local traffic as a whole. See also Southern P. Co. v. Campbell (1911) 189 Fed. 182. Compare Gulf, C. & S. F. Ry. Co. v. Railroad Comn. of Texas (1909) 102 Tex. 338, 116 S. W. 795. The Minnesota case turned more upon the common law and the powers of the courts at common law than do later cases. 164 Smyth V. Ames, cited in note 161, supra. See also Chicago & N. W. Ry. Co. V. Dey, cited in note 162, supra. 165 See also Northern P. Ry. Co. v. Lee (1912) 199 Fed. 621, 632, and cases there cited; Atlantic C. L. R. Co. v. Florida (1906) 203 U. S. 256, 260, 27 Sup. Ct. 108, 109, 51 L. ed. 174; Atchison, T. & S. F. Ry. Co. v. United States (1913) 203 Fed. 56, 69. — On the apportionment of the value of the property to find the basis on which to estimate the reasonableness of rates on particular classes of traffic, see the discussion in sec. 166, supra. On the propriety of considering the value of the service to the patron, see United States v. Chandler-Dunbar W. P. Co. (1913) 229 U. S. 53, 76, 33 Sup. Ct. 667, 677, 57 L. ed. 1063; Boston Chamber of Commerce v. Boston (1910) 217 U. S. 189, 194, 195, 30 Sup. Ct. 459, 460, 54 L. ed. 725; Minnesota Rate Cases— Simpson v. Shepard (1913) 230 U. S. 352, 451, 33 Sup. Ct. 729, 761, 57 L. ed. 1511; Clyde v. Richmond & D. R. Co. (1893) 57 Fed. 436, 440; Salt R. V. C. Co. v. Nelssen (1906) 10 Ariz. 9, 85 Pac. 117, 12 L. R. A. N. S. 711; Hearings of Senate Committee on Interstate Commerce, April, 1905, vol. II, p. 1099; Freund, Police Power, pp. 578, 579. But com- pare sec. 177, supra. PARTICULAR RATES. 325 after adequate trial, it thinks it can prove more clearly than at present the confiscatory character of the rates for coal/'i^'^ Discussion on considering merely schedule as entirety. 186. From these authorities it seems clear that the fact that the rates for a portion of the transportation are un- profitable does not necessarily render the governmental regulations unconstitutional. The state may require a railroad to render services for which it cannot expect any adequate return ;^^'' and it may require a public service corporation to render services to patrons whose calls upon it are light at the same rate as is charged to patrons whose calls upon it are heavier, although in the former case the services must be rendered at a loss.^^^ And so, even if it were proved that under a particular regulation the company would not receive even the operating ex- penses, the regulations would not necessarily be unconsti- tutional.i^^ i66Nortliern P. Ry. Co. v. North Dakota (1910) 216 U. S. 579, 581, 30 Sup, Ct. 423, 424, 54 L. ed. 634. See also Wood v. Vandalia R. Co. (1913) 231 U. S. 1, 34 Sup. Ct. 7, 58 L. ed.; dicta in Interstate Com. Comn. V. Union P. R. Co. (1912) 222 U. S. 541, 32 Sup. Ct. 108, 56 L. ed. 308; and cases in note 173, infra. 167 Atlantic C. L. R. Co. v. North Carolina Corp. Comn. (1907) 206 U. S. 1, 24, 25, 27 Sup. Ct. 585, 594, 51 L. ed. 933; State v. Louisville & N. R. Co. (1912) 62 Fla. 315, 57 So. 175; State v. Missouri P. Ry. Co. (1907) 76 Kan. 467, 491, 92 Pac. 606, 614; Washington S. Ry. Co. v. Common- wealth (1911) 112 Va. 515, 71 S. E. 539; and see note 169, infra. Compare George v. Chicago, R. I. & P. Ry. Co. (1908) 214 Mo. 551, 113 S. W. 1099; State ex rel. Washington M. Co. v. Great N. Ry. Co. (1906) 43 Wash. 658, 86 Pac. 1056, 6 L. R. A. N. S. 908; Chicago C. Ry. Co. v. Chicago (1905) 142 Fed. 844; note 141, supra. 168 Lincoln G. & E. L. Co. v. Lincoln (1909) 182 Fed. 926, 929. See also Puget S. E. Ry. v. Railroad Comn. (1911) 65 Wash. 75, 87, 96, 117 Pac. 739, 744, 748; Wyman, Business Policies Inconsistent with Public Employ- ment, 20 Harv. L. Rev. 511, 514. 169 See, e. g., Boise City L & L. Co. v. Clark (1904) 131 Fed. 415, 422; state V. Sutton (1912) 84 N. J. L., 84 Atl. 1057; Ex parte Koehler (1885) 326 JUST COMPENSATION. Yet, on the other hand, it seems that it would be going too far to say that if the rates as a whole yield an ade- quate return every particular rate must be constitutional. Regulations which limit part of the rates cannot be en- joined merely because under them the rates as an en- tirety will not yield a sufficient return ;^'^" and, conversely, regulations of particular rates should not be sustained merely because a sufficient return is secured from the rates as an entirety. The court should, rather, say that if the total returns are adequate something more than the inadequacy of particular returns would have to be shown before the particular rates could be held unconstitution- al.^'^^ It should say that before the particular regulations could be declared unconstitutional— certainly in any cases other than those arising under the just compensation provision of the Fifth Amendment, which relates only to the federal government— it would be necessary to show clearly that the organ of government which had power to decide upon questions of policy^ ''^^ had acted so outrage- ously that there could be no honest difference of opinion that it was committing an act of spoliation under the guise of regulating rates. ^^^ 23 Fed. 529, 5.32. Compare Lehigh V. K. Co. v. United States (1913) 204 Fed. 986; Atchison, T. & S. F. Ry. Co. v. United States (1913) 203 Fed. 56, 59; Morgan's L. & T. R. Co. v. Railroad Comn. of La. (1911) 127 La. 636, 667, 53 So. 890, 901; Chicago, St. P., M. & 0. Ry. Co. v. Becker (1888) 35 Fed. 883; and end of note 167, supra. 170 Northern P. Ry. Co. v. Lee (1912) 199 Fed. 621. See also Higginson V. Chicago, B. & Q. R. Co. (1900) 100 Fed. 235. 171 Atlantic C. L. R. Co. v. North Carolina Corp. Comn. (1907) 206 U. S. 1, 24, 25, 27 Sup. Ct. 585, 594, 51 L. ed. 933; State v. Missouri P. Ry. Co. (1907) 76 Kan. 467, 491, 92 Pac. 606, 614. 172 See sec. 140, supra. 173 Of course, the rule may be different where special provisions of state constitutions or statutory grants of power to commissions are involved: see Morgan's L. & T. R. Co. v. Railroad Comn. of La. (1911) 127 La. 636, 665, 53 So. 890, 900; Gulf, C. & S. F. Ry. Co. v. Texas (1909) 102 Tex. PARTICULAR RATES. 327 Mileage books. 187. The court has, however, decided that a state may not require a railroad company to sell mileage books at a lower rate per mile than the company is authorized to charge for ordinary tickets.^ ^^ From this decision three justices dissented; and it is clearly unsound. Before as well as after the enactment of the law many railroads issued mileage books at reduced rates, good for extended periods, and the court did not criticise this cus- tom."^ The objection, and the only real objection, to the law was that it regulated the railroads in a respect in which a majority of the court thought that the companies should be left free from regulation; and as the court has 338, 116 S. W. 795; Pennsylvania R. Co. v. Philadelphia County (1908) 220 Pa. 100, 68 Atl. 676, 15 L. R. A. N. S. 108. With opinion in case last cited compare Hadley, Railroad Rate Regulation, 7 The Brief, 175, 184; Robinson, The Legal, Economic and Accounting Principles Involved in the Judicial Determination of Railway Passenger Rates, 16 Yale Review, 355, 360. 174 Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858. See also State v. Bonneval (1911) 128 La. 902, 55 So. 569; Commonwealth v. Atlantic C. L. R. Co. (1906) 106 Va. 61, 55 S. E. 572, 7 L. R. A. N. S. 1086, and cases cited in note in 7 L. R. A. N. S.; State v. Great N. Ry. Co. (1908) 17 N. D. 370, 116 N. W. 89; Bruce, State Regulation of Railroad Rates and Charges, 62 Cent. L. J. 458, 464; Wy- man, Business Policies Inconsistent with Public Employment, 20 Harv. L. Rev. 511, 514; note in 14 Harv. L. Rev. at 143. As pointed out in Wisconsin, M. & P. Ry. Co. v. Jacobson (1900) 179 U. S. 287, 21 Sup. Ct. 115, 45 L. ed. 1194, the essential question in L. S. & IL S. Ry. Co. v. Smith was as to the power of the state to establish a lower charge for mileage books than for ordinary tickets. It was not shown that the lower rate would have been inadequate if applied to all passenger traflfic. (This point was urged, and the court replied that the fact that the state had not fixed such rates for all passenger traffic aflforded a presiunption that a law fixing such rates would be invalid. In other words, constitutional limitations are presumed to be the only deterrents to legislative action. Is this true?) It did not appear that the rates would have been inadequate if applied to all passenger traflfic. But the law did not go so far. The lower rate applied only to mileage tickets. Compare notes 178, 179, infra. 175 See also State v. Sutton (1912) 84 N. J. L., 84 Atl. 1057. 328 JUST COJCPENSATION. no power to declare legislation invalid simply upon the ground that it is unwise or unjust/ ^^ such an objection cannot properly be considered."^ Moreover, the decision is inconsistent with that in the later case of Willcox v. Consolidated Gas Co./"^^ in which the opinion was by the author of the opinion in the mile- age book case and in which it was held that a gas com- pany may be required to sell gas to a particular whole- sale customer at a lower rate than is charged to the gen- eral public."^ 176 See sec. 95, supra. 177 With the comments of the court in 173 U. S. at 693, 19 Sup. Ct. at 569, 43 L. ed. at 863, on fixing period within which tickets should be usable, see also Lochner v. New York (1905) 198 U. S. 45, 62, 25 Sup. Ct. 539, 545, 49 L. ed. 937; but compare criticism in Freund, Limitations of Hours of Labor, 17 Green Bag, 411, 415; and decisions in Bacon v. Walker (1907) 204 U. S. 311, 317, 27 Sup. Ct. 289, 291, 51 L. ed. 499, Hatch v. Reardon (1907) 204 U. S. 152, 159, 27 Sup. Ct. 188, 190; and also Southwestern Oil Co. V. Texas (1910) 217 U. S. 114, 126, 30 Sup. Ct. 496, 500, 54 L. ed. 688. 178 (1912) 212 U. S. 19, 54, 29 Sup. Ct. 192, 200, 201, 53 L. ed. 382; see note 161, supra. 179 Compare also note in 14 Harv. L. Rev. at 143 ; Interstate Com. Comn. V. Chicago, R. I. & P. Ry. Co. (1910) 218 U. S. 88, 30 Sup. Ct. 651, 54 L. ed. 946 ; the language of Holmes and Harlan, JJ., in Interstate C. S. Ry. Co. V. Commonwealth (1907) 207 U. S. 79, 28 Sup. Ct. 26, 52 L. ed. Ill, affirm- ing Commonwealth v. Interstate C. S. Ry. Co. (1905) 187 Mass. 436, 73 N. E. 530, 11 L. R. A. N. S. 973; and Fitzmaurice v. New Y., N. H. & H. R. Co. (1906) 192 Mass. 159, 78 N. E. 418, 6 L. R. A. N. S. 1146; Puget S. E. Ry. V. Railroad Comn. (1911) 65 Wash. 75, 117 Pac. 739; Interstate Com. Comn. V. Baltimore & 0. R. Co. (1892) 145 U. S. 263, 276, 12 Sup. Ct. 844, 848, 36 L. ed. 699; Whiting, Commutation Tickets and Rate Regulation, S Col. L. Rev. 636; Freund, Police Power, pp. 406, 407, 410, note; Judson, In- terstate Commerce, 2d ed., sec. 203; and cases cited in Wyman, Public Ser- vice Corporations, p. 950. CHAPTER Vn. THE IMPAIRMENT OF CONTRACTS. INTRODUCTORY. 188. The clause stated. "LAWS" FORBIDDEN. 189. In general. 190. Rule as to judicial decisions. 191. CONTRACTS PROTECTED. INTERPRETATION OF CONTRACTS. 192. Contractual limitations upon governmental power over rates. 193. Governmental power not limited by mere implication. 194. Parties exempted. LIMITATIONS UPON POWER TO CONTRACT. 195. In general. 196. Contracts with municipalities. 197. Contracts between state and carrier. 198. Contracts between carriers or between carrier and patron. 199. POWER TO ALTER, AMEND OR REPEAL. INTRODUCTORY. The clause stated. 188. The Constitution in Article I, section 10, declares that '^No state shall .... pass any .... law impair- ing the obligation of contracts. ' ' "LAWS" FORBIDDEN. In general. 189. The provision obviously does not relate to federal legislation.^ We have already ^ noted cases in which the 1 Philadelphia, B. & W. R. Co. v. Schubert (1912) 224 U. S. 603, 613, 329 330 THE IMPAIRMENT OF CONTRACTS. Interstate Commerce Act had impaired the obligation of contracts between railroads and their patrons and in which the Act was enforced by the Supreme Court. But the provision does forbid the states by law to deprive parties of the legal right of enforcing their contracts or obtaining compensation for breaches thereof. This is true whether the law-making is by means of the state consti- tution,^ or an act of the legislature,"* or an act of an ad- ministrative authority of the state to which power has been delegated by the legislature,'^ or an act of a munici- pality ^ or other extrinsic authority '^ to which the state 614, 32 Sup. Ct. 589, 592, 56 L. ed. 911; Hanover Nat. Bank v. Moyses (1902) 186 U. S. 181, 188, 22 Sup. Ct. 857, 860, 46 L. ed. 1113; Sturges v. Crowninshield (1819) 4 Wheat. 122, 194, 4 L. ed. 529. See also sec. 53, supra; note 2 in Chapter 5, supra. 2 Sec. 18, supra. 3 Houston & T. C. Ry. Co. v. Texas (1898) 170 U. S. 243, 18 Sup. Ct. 610, 42 L. ed. 1023; Fisk v. Jefferson Police Jury (1885) 116 U. S. 131, 6 Sup. Ct. 329, 29 L. ed. 587; New O. G. Co. v. Louisiana L. Co. (1885) 115 U. S. 650, 6 Sup. Ct. 252, 29 L. ed. 516; Keith v. Clark (1878) 97 U. S. 454, 24 L. ed. 1071; Edwards v. Kearzey (1877) 96 U. S. 595, 24 L. ed. 793; Pacific R. Co. V. Maguire (1873) 20 Wall. 36, 22 L. ed. 282; Gunn v. Barry (1872) 15 Wall. 610, 21 L. ed. 212; Delmas v. Insurance Co. (1871) 14 Wall. 661, 20 L. ed. 757; White v. Hart (1871) 13 Wall. 646, 20 L. ed. 685; see also County of Moultrie v. Rockingham T. C. S. Bank (1875) 92 U. S. 631, 23 L. ed. 631; Railroad Co. v. McClure (1870) 10 Wall. 511, 515, 19 L. ed. 997; Dodge v. Woolsey (1855) 18 How. 331, 15 L. ed. 401. *See, e. g., Louisiana v. New Orleans (1909) 215 U. S. 170, 30 Sup. Ct. 40, 54 L. ed. 144; American S. & R. Co. v. Colorado (1907) 204 U. S. 103, 27 Sup. Ct. 198, 51 L. ed. 393; Dartmouth College v. Woodward (1819) 4 Wheat. 518, 4 L. ed. 629; Terrett v. Taylor (1815) 9 Cranch, 43, 3 L. ed. 650; Fletcher v. Peck (1810) 6 Cranch, 87, 3 L. ed. 162. 5 See Grand T. W. Ry. Co. v. Railroad Comn. of Indiana (1911) 221 U. S. 400, 403, 31 Sup. Ct. 537, 55 L. ed. 786, and cases there cited. 6 Boise A. H. & C. W. Co. v. Boise City (1913) 230 U. S. 84, 33 Sup. Ct. 997, 57 L. ed. 1400; Owensboro v. Cumberland T. & T. Co. (1913) 230 U. S. 58, 33 Sup. Ct. 988, 57 L. ed. 1389; Grand T. W. Ry. Co. v. South Bend (1913) 227 U. S. 544, 33 Sup. Ct. 303, 57 L. ed. 633; Louisville v. Cum- berland T. & T. Co. (1912) 224 U. S. 649, 32 Sup. Ct. 572, 56 L. ed. 934; Minneapolis v, Minneapolis S. Ry. Co. (1910) 215 U. S. 417, 30 Sup. Ct, 118, 54 L. ed. 259; Vicksburg v. Vicksburg W. Co. (1906) 202 U. S. 453, 26 "LAWS" FORBIDDEN. 331 by its enforcement gives the force of a law. It must be noted, however, that a "law" to violate the provision must have been enacted after the making of the contract.^ Sup. Ct. 660, 50 L. ed. 1102; Cleveland v. Cleveland E. Ry. Co. (1906) 201 U. S. 529, 26 Sup. Ct. 513, 50 L. ed. 854; Cleveland v. Cleveland C. Ry. Co. (1904) 194 U. S. 517, 24 Sup. Ct. 756, 48 L. ed. 1102; Detroit v. Detroit C. S. Ry. Co. (1902) 184 U. S. 368, 22 Sup. Ct. 410, 46 L. ed. 592; Los An- geles v. Los Angeles C. W. Co. (1900) 177 U. S. 558, 20 Sup. Ct. 736, 44 L. ed. 886; Walla Walla v. Walla Walla W. Co. (1898) 172 U. S. 1, 19 Sup. Ct. 77, 43 L. ed. 341; Cumberland T. & T. Co. v. Memphis (1912) 198 Fed. 955. See also Northern P. Ry. Co. v. Duluth (190S) 208 U. S. 583, 28 Sup. Ct. 341, 52 L. ed. 630; Mercantile T. & D. Co. v. Columbus (1906) 203 U. S. 311, 321, 27 Sup. Ct. 83, 85, 51 L. ed. 198; St. Paul G. L. Co. v. St. Paul (1901) 181 U. S. 142, 21 Sup. Ct. 575, 45 L. ed. 788; City Ry. Co. v. Citi- zens' S. Ry. Co. (1897) 166 U. S. 557, 17 Sup. Ct. 653, 41 L. ed. 1114; Home T. & T. Co. v. Los Angeles (1913) 227 U. S. 278, 33 Sup. Ct. 312, 57 L. ed. 510; Portland Ry., L. & P. Co. v. Portland (1912) 201 Fed. 119. Compare Des Moines v. Des Moines C. Ry. Co. (1909) 214 U. S. 179, 29 Sup. Ct. 553, 53 L. ed. 958. A simple breach of a contract by a municipality which is not based on legislation does not amount to an act impairing the obligation of the contract: Shawnee S. & D. Co. v. Stearns (1911) 220 U. S. 462, 31 Sup. Ct. 452, 55 L. ed. 544; Dawson v. Columbia A. S. F., S. D., T. & T. Co. (1905) 197 U. S. 178, 25 Sup. Ct. 420, 49 L. ed. 713. See also Ham- ilton G. L. & C. Co. V. Hamilton City (1892) 146 U. S. 258, 266, 13 Sup. Ct. 90, 92, 36 L. ed. 963. 7 Stevens v. Griffith (1884) 111 U. S. 48, 4 Sup. Ct. 283, 28 L. ed. 348. See also Ford v. Surget (1878) 97 U. S. 594, 24 L. ed. 1018; Williams v. Bruffy (1877) 96 U. S. 176, 24 L. ed. 716. 8 Chicago, B. & Q. R. Co. v. Cram (1913) 228 U. S. 70, 85, 33 Sup. Ct. 437, 440, 57 L. ed. 734; Abilene Nat. Bk. v. Dolley (1913) 228 U. S. 1, 5, 33 Sup. Ct. 409, 410, 57 L. ed. 707; National M. B. & L. Assn. v. Brahan (1904) 193 U. S. 635, 647, 24 Sup. Ct. 532, 535, 48 L. ed. 823; Oshkosh W. Co. V. Oshkosh (1903) 187 U. S. 437, 446, 23 Sup. Ct. 234, 237, 47 L. ed. 249; New O. W. Co. V. Louisiana (1902) 185 U. S. 336, 350, 352, 22 Sup. Ct. 691, 696, 697, 46 L. ed. 936; Pinney v. Nelson (1901) 183 U. S. 144, 147, 22 Sup. Ct. 52, 54, 46 L. ed. 125; Bier v. McGehee (1893) 148 U. S. 137, 140, 13 Sup. Ct. 580, 581, 37 L. ed. 397; Brown v. Smart (1892) 145 U. S. 454, 458, 12 Sup. Ct. 958, 959, 36 L. ed. 773; Denny v. Bennett (1888) 128 U. S. 489, 9 Sup. Ct. 134, 32 L. ed. 491; Lehigh W. Co. v. Easton (1887) 121 U. S. 388, 391, 7 Sup. Ct. 916, 918, 30 L. ed. 1059. See also ShawTiee S. & D. Co. V. Stearns (1911) 220 U. S. 462, 471, 31 Sup. Ct. 452, 45.5, 65 L. ed. 544; San Antonio T. Co. v. Altgelt (1906) 200 U. S. 304, 26 Sup. Ct. 261, 50 L. ed. 491; Blackstone v. Miller (1903) 188 U. S. 189, 207, 23 Sup. Ct. 277, 279, 47 L. ed. 439; Hanford v. Daviea (1896) 163 U. S. 273, 278, 16 332 THE IMPAIRMENT OF CONTRACTS. Rule as to judicial decisions. 190. An erroneous decision by a state court as to the existence or the validity of a contract does not in itself amount to a law impairing its obligation.^ The decision will not be reviewed by the Supreme Court unless it is claimed that the state has impaired the obligation of the contract by some law.^*^ In that case the Supreme Court will re-examine a decision by the state court that the law Sup. Ct. 1051, 1053, 41 L. ed. 157; Planters' I. Co. v. Tennessee (1896) 161 U. S. 193, 16 Sup. Ct. 466, 40 L. ed. 667; Denver v. New York T. Co. (1913) 229 U. S. 123, 33 Sup. Ct. 657, 57 L. ed. 1101; Ettor v. Tacoma (1913) 228 U. S. 148, 33 Sup. Ct. 428, 57 L. ed. 773. 9 As was said in Cross L. S. & F. Club v. Louisiana (1912) 224 U. S. 632, 638-639, 32 Sup. Ct. 577, 579-580, 56 L. ed. 924, "This clause, as its terms disclose, is not directed against all impairment of contract obligations, but only against such as results from a subsequent exertion of the legislative power of tlie state. It does not reach mere errors committed by a state court when passing upon the validity or effect of a contract under the laws in existence when it was made. And so, while such errors may operate to impair the obligation of the contract, they do not give rise to a federal question. But when the state court, either expressly or by necessary impli- cation, gives effect to a subsequent law of the state whereby the obligation of the contract is alleged to be impaired, a federal question is presented. In such a case it becomes our duty to take jurisdiction and to determine the existence and validity of the contract, what obligations arose from it, and whether they are impaired by the subsequent law. But if there be no such law, or if no effect be given to it by the state court, we cannot take jurisdiction, no matter how earnestly it may be insisted that that court erred in its conclusion respecting the validity or effect of the contract; and this is true even where it is asserted, as it is here, that the judgment is not in accord with prior decisions on the faith of which the rights in question were acquired." See also the cases cited there and in Patterson, The United States and the States Under the Constitution, 2d ed., p. 140; Mobile, J. & K. C. R. Co. V. Mississippi (1908) 210 U. S. 187, 205, 28 Sup. Ct. 650, 656, 657, 52 L. ed. 1016. 10 Willoughby on the Constitution, p. 917, points out that "The Supreme Court has shown a strong disposition to find, when possible, an impairing statute, and thus to justifj^ its appellate jurisdiction for the protection of contracts in cases originating in state courts." See also Dodd, Impairment of the Obligation of Contract by State Judicial Decisions, 4 111. L. Rev. 155, 327, 332. "LAWS" FORBIDDEN. 333 has not impaired the contract or that there has been no contract to be impaired.^^ Where, however, a state court construes a state statute that construction becomes, as to contract rights acquired imder it, as much a part of the statute as the text itself, and in cases arising in federal courts those courts will re- fuse to recognize the validity of any subsequent retroac- tive change of that statute by construction,^^ But in cases arising in state courts the Supreme Court will not on writ of error decide whether the state court has or has not interpreted the state law in accordance with previous interpretations by the state court.^^ 11 Grand T. W. Ry. Co. v. South Bend (1913) 227 U. S. 544, 33 Sup. Ct. 303, 57 L. ed. 633; Kier v. Lowrey (1905) 199 U. S, 233, 26 Sup. Ct. 27, 50 L. ed. 167; McCullough v. Virginia (1898) 172 U. S. 102, 19 Sup. Ct. 134, 43 L. ed. 382; Mobile & 0. R. Co. v. Tennessee (1894) 153 U. S. 486, 14 Sup. Ct. 986, 38 L. ed. 793; JeflFerson Branch Bank v. Skelly (1861) 1 Black, 436, 17 L. ed. 173; State Bank v. Knopp (1853) 16 How. 369, 14 L. ed. 977; Louisiana ex rel. Hubert v. New Orleans (1909) 215 U. S. 170, 30 Sup. Ct. 40, 54 L. ed. 144; Muhlker v. New Y. & H. R. Co. (1905) 197 U. S. 544, 570, 25 Sup. Ct. 522, 528, 49 L. ed. 872. See also J. W. Perry Co. V. Norfolk (1911) 220 U. S. 472, 31 Sup. Ct. 465, 55 L. ed. 548; Northern P. Ry. Co. V. Duluth (1908) 208 U. S. 583, 28 Sup. Ct. 341, 52 L. ed. 630 Sullivan v. Texas (1908) 207 U. S. 416, 28 Sup. Ct. 215, 52 L. ed. 274 Wilson V. Standefer (1902) 184 U. S. 399, 22 Sup. Ct. 384, 46 L. ed. 612 and cases cited in Patterson, The United States and the States Under the Constitution, 2d ed., p. 141. 12 Wilkes County v. Coler (1901) 180 U. S. 506, 21 Sup. Ct. 458, 45 L. ed. 642; Loeb v. Columbia Township Trustees (1900) 179 U. S. 472, 492, 21 Sup. Ct. 174, 182, 45 L. ed. 280; Douglass v. County of Pike (1879) 101 U. S. 677, 25 L. ed. 968; City v. Lamson (1869) 9 Wall. 477, 19 L. ed. 725; Chicago V. Sheldon (1869) 9 Wall. 50, 19 L. ed. 594; Gelpcke v. Dubuque (1863) 1 Wall. 175, 206, 17 L. ed. 520. See also Kuhn v. Fairmount C. Co. (1910) 215 U. S. 349, 30 Sup. Ct. 140, 54 L. ed. 228; Havemeyer v. Iowa County (1865) 3 Wall. 294, 303, 18 L. ed. 38. The principles in- volved in the above cases are discussed in Dodd, Impairment of the Obli- gation of Contract by State Judicial Decisions, 4 111. L. Rev. 155, 327, where a bibliography on the subject is given on p. 155; Willoughby on the Constitution, p. 920 et seq. ; White, Some Recent Criticisms of Gelpcke v. Dubuque, 38 Am. L. Reg. N. S. 473, 529, 593, 657; 16 L. R. A. 646. 13 National M. B. & L. Assn. v. Brahan (1904) 193 U. S. 635, 647, 24 334 THE IMPAIRMENT OF CONTRACTS. CONTRACTS PROTECTED. 191. The provision which we are considering protects against impairment of obligation both executory ^^ and executed ^^ contracts. It protects not only contracts be- tween private individuals but also contracts to which one Sup. Ct. 532, 535, 48 L. ed. 823; Bacon v. Texas (1896) 163 U. S. 207, 220- 222, 16 Sup. Ct. 1023, 1028-1029, 41 L. ed. 132. See also Cross L. S. & F. Club V. Louisiana (1912) 224 U. S. 632, 639, 32 Sup. Ct. 577, 580, 56 L. ed. 924; Central L. Co. v. Laidley (1895) 159 U. S. 103, 111, 112, 16 Sup. Ct. 80, 82, 40 L. ed. 91; Dodd, Impairment of the Obligation of Contract by State Judicial Decisions, 4 111. L. Rev. 155, 327; White, Some Recent Criti- cisms of Gelpcke v. Dubuque, 38 Am. L. Reg. N. S. 473, 529, 593, 657, especially at 660 et seq. ; Willoughby on the Constitution, p. 916 et seq. ; Crigler v. Shepler (1909) 79 Kan. 834, 101 Fac. 619, 23 L. R. A. N. S. 500, and note in 23 L. R. A. N. S. 14 E. g., cases in note 6, supra; and Louisiana v. New Orleans (1909) 215 U. S. 170, 30 Sup. Ct. 40, 54 L. ed. 144; New O. G. Co. v. Louisiana L. Co. (1885) 115 U. S. 650, 6 Sup. Ct. 252, 29 L. ed. 516; Edwards v. Kear- zey (1877) 96 U. S. 595, 24 L. ed. 793; County of Moultrie v. Rockingham T. C. S. Bank (1875) 92 U. S. 631, 23 L. ed. 631; State Tax on Foreign- held Bonds (1872) 15 Wall. 300, 21 L. ed. 179; Delmas v. Insurance Co. (1871) 14 Wall. 661, 20 L. ed. 757; Ogden v. Saunders (1827) 12 Wheat. 213, 6 L. ed. 606; McMillan v. McNeill (1819) 4 Wheat. 209, 4 L. ed. 552; Sturges V. Crowninshield (1819) 4 Wheat. 122, 4 L. ed. 529. 15 E. g., Houston & T. C. Ry. Co. v. Texas (1898) 170 U. S. 243, 18 Sup. Ct. 610, 42 L. ed. 1023; Mobile v. Watson (1886) 116 U. S. 289, 6 Sup. Ct. 398, 29 L. ed. 620; Louisiana v. Police Jury (1884) 111 U. S. 716, 4 Sup. Ct. 648, 28 L. ed. 574; Ralls County Court v. United States (1881) 105 U. S. 733, 26 L. ed. 1220; Louisiana v. Pilsbury (1881) 105 U. S. 278, 26 L. ed. 1090; Wolff V. New Orleans (1880) 103 U. S. 358, 26 L. ed. 395; Memphis V. United States (1877) 97 U. S. 293, 24 L. ed. 920; Blount v. Windley (1877) 95 U. S. 173, 24 L. ed. 424; Davis v. Gray (1872) 16 Wall. 203, 21 L. ed. 447; Terrett v. Tjiylor (1815) 9 Cranch, 43, 3 L. ed. 650; Fletcher v. Peck (1810) 6 Cranch, 87, 3 L. ed. 162. 16 American S. & R. Co. v. Colorado (1907) 204 U. S. 103, 27 Sup. Ct. 198, 51 L. ed. 393; McCullough v. Virginia (1898) 172 U. S. 102, 19 Sup. Ct. 134, 43 L. ed. 382; Mobile & 0. R. Co. v. Tennessee (1894) 153 U. S. 486, 14 Sup. Ct. 986, 38 L. ed. 793; McGahey v. Virginia (1890) 135 U. S. 662, 10 Sup. Ct. 972, 34 L. ed. 304; Poindexter v. Greenhow (1885) 114 U. S. 270, 5 Sup. Ct. 903, 29 L. ed. 185; Hall v. Wisconsin (1880) 103 U. S. 5, 26 L. ed. 302; Green v. Biddle (1823) 8 Wheat. 1, 5 L. ed. 547; Dart- mouth College V. Woodward (1819) 4 Wheat. 51S, 4 L. ed. 629; Terrett v. Taylor (1815) 9 Cranch, 43, 3 L. ed. 650; New Jersey v. Wilson (1812) INTERPKETATION OF CONTRACTS. 335 of the parties is the state itself ^^ or some local govem- ment acting under authority from the state.^"'' INTERPRETATION OF CONTRACTS. CJontractual limitations upon governmental power over rates. 192. It is clearly established that some exemptions from rate regulation may be secured by a public service cor- poration by contract with the state or with a local gov- ernment which has received from the state authority to enter into such a contract. A number of such contracts, made in express terms, have been sustained and enforced by the Supreme Court.^^ For instance, where, under a 7 Cranch, 164, 3 L. ed. 303; Fletcher v. Peck (1810) 6 Cranch, 87, 3 L. ed. 162; Woodruff v. Trapnall (1850) 10 How. 190, 207, 13 L. ed. 383. 17 See cases in note 6, supra, 18, infra; and Scotland County Court t. United States (1891) 140 U. S. 41, 11 Sup. Ct. 697, 35 L. ed. 363; Seibert V. Lewis (1887) 122 U. S. 284, 7 Sup. Ct. 1190, 30 L. ed. 1161; Mobile v. Watson (1886) 116 U. S. 289, 6 Sup. Ct. 398, 29 L. ed. 620; Fisk v. Jef- ferson Police Jury (1885) 116 U. S. 131, 6 Sup. Ct. 329, 29 L. ed. 587; Louisiana v. Police Jury (1884) 111 U.S. 716, 4 Sup. Ct. 648, 28 L.ed. 574; Ralls County Court v. United States (1881) 105 U. S. 733, 26 L. ed. 1220; Louisiana v. Pilsbury (1881) 105 U. S. 278, 26 L. ed. 1090; Wolff v. New Orleans (1880) 103 U. S. 358, 26 L. ed. 395; Memphis v. United States (1877) 97 U. S. 293, 24 L. ed. 920; Murray v. Charleston (1877) 96 U. S. 432, 24 L. ed. 760; County of Moultrie v. Rockingham T. C. S. Bank (1875) 92 U. S. 631, 23 L. ed. 631. 18 Minneapolis v. Minneapolis S. Ry. Co. (1910) 215 U. S. 417, 30 Sup. Ct. 118, 54 L. ed. 259; Vicksburg v. Vicksburg W. Co. (1907) 206 U. S. 496, 27 Sup. Ct. 762, 51 L. ed. 1155; Cleveland v. Cleveland E. Ry. Co. (1906) 201 U. S. 529, 26 Sup. Ct. 513, 50 L. ed. 854; Cleveland v. Cleveland C. Ry. Co. (1904) 194 U. S. 517, 24 Sup. Ct. 756, 48 L. ed. 1102; Cleveland v. Cleveland E. Ry. Co. (1904) 194 U. S. 538, 24 Sup. Ct. 764, 48 L. ed. 1109; Detroit V. Detroit C. S. Ry. Co. (1902) 184 U. S. 368, 22 Sup. Ct. 410, 46 L. ed. 592; Los Angeles v. Los Angeles C. W. Co. (1900) 177 U. S. 558, 20 Sup. Ct. 736, 44 L. ed. 886. See also Owensboro v. Cumberland T. & T. Co. (1913) 230 U. S. 58, 33 Sup. Ct. 988, 57 L. ed. 1389; Boise A. H. & C. W. Co. V. Boise City (1913) 230 U. S. 84, 33 Sup. Ct. 997, 57 L. ed. 1400; Grand T. W. Ry. Co. v. South Bend (1913) 227 U. S. 544, 33 Sup. Ct. 303, 336 THE IMPAIRMENT OF CONTRACTS. statute expressly directing that street railway fares should be fixed by agreement between the city and the company, an ordinance provided that the fares should not exceed five cents, the court held that the city could not afterwards impose a lower fare, although it had reserved the right to make further rules, ordinances and regulations, and that a constitutional reservation to the legislature of the power to alter, amend or repeal its contracts did not grant such power to the city.^^ And where a city leased its water works in consideration of a fixed rental and the furnishing of water for public uses without charge, reserving to itself the right to regulate water rates, with the proviso that they should not be reduced below those then charged by the lessees, a subsequent ordinance further reducing the rates was declared invalid.-*^ 57 L. ed. 633; Gulf & S. I. R. Co. v. Adams (1907) 90 Miss. 559, 45 So. 91; Omaha W. Co. v. Omaha (1906) 147 Fed. 1, 12 L. R. A. N. S. 736; note in 23 Harv. L. Rev. 388. 19 Detroit v. Detroit C. S. Ry. Co. (1902) 184 U. S. 368, 22 Sup. Ct. 410, 46 L. ed. 592. 20 Los Angeles v. Los Angeles C. W. Co. (1900) 177 U. S. 558, 20 Sup. Ct. 736, 44 L. ed. 886. — And it has been held by state courts that where a state had granted to a railway company the right to regulate its charges until a date named, it could not before that date prohibit the company from making a greater charge for a shorter than for a longer haul which included the shorter route: Sloan v. Pacific R. (1875) 61 Mo. 24; and that where a state had granted to a railway company the right to regulate its charges "subject only" to a specified limitation, then, although other sec- tions of the same act provided that the company should charge such sums as should be "lawfully" established, and that the regulations of the com- pany should not be contrary to the laws of the state, that state could not afterwards impose further limitations upon the rates charged: Pingree v. Michigan C. R. Co. (1898) 118 Mich. 314, 76 N. W. 635, 53 L. R. A, 274. See also note in 21 A. & E. R. Cas. 50; Rushville v. Rushville N. G. Co. (1905) 164 Ind. 162, 73 N. E. 87; Mississippi R. Comn. v. Gulf & S. I. R. Co. (1901) 79 Miss. 750, 29 So. 789. To the contrary are Laurel F. & S. H. R. Co. V. West v. T. Co. (1884) 25 W. Va. 324; West V. T. Co. v. Sweetzer (1885) 25 W. Va. 434; and see Stanislaus County v. San J. & K. R. C. & I. Co. (1904) 192 U. S. 201, 24 Sup. Ct. 241, 48 L. ed. 406; Owensboro v. Owansboro W. Co. (1903) 191 U. S. 358, 24 Sup. Ct. 82, 48 L. ed. 217; INTEKPRETATION OF CONTRACTS. 337 Governmental power not limited by mere implication. 193. But a claim that a state or a local government has bound itself by contract not to reduce the rates charged by a public sei"vice corporation will be closely scrutin- ized by the courts and its validity will not be recognized unless it is clearly proved. All doubts will be resolved in favor of the continuance of power in the govemment.^^ The authority of the state or local government over rates is not surrendered by mere implication. In chartering a company the state does not enter into an implied con- tract that it will not place any limitations upon the rates Ruggles V. Illinois (1883) 108 U. S. 526, 2 Sup. Ct. 832, 27 L. ed. 812; lan- guage of court in Louisville & N. R. Co. v. Kentucky (1902) 183 U. S. 503, 518, 22 Sup. Ct. 95, 101, 46 L. ed. 298; and sec. 193, infra. 21 Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 273, 29 Sup. Ct. 50, 52, 53 L. ed. 176, citing Metropolitan S. Ry. Co. v. New York (1905) 199 U. S. 1, 25 Sup. Ct. 705, 50 L. ed. 65; Stanislaus County v. San J. & K. R. C. & L Co. (1904) 192 U. S. 201, 211, 24 Sup. Ct. 241, 245, 48 L. ed. 406; Freeport W. Co. v. Freeport (1901) 180 U. S. 587, 599, 611, 21 Sup. Ct. 493, 498, 502, 45 L. ed. 679; Vicksburg, S. & P. R. Co. v. Dennis (1886) 116 U. S. 665, 6 Sup. Ct. 625, 29 L. ed. 770; Railroad Comn. Cases— Stone V. Farmers' L. & T. Co. (1886) 116 U. S. 307, 325, 6 Sup. Ct. 334, 388, 1191, 342, 29 L. ed. 636; Providence Bank v. Billings (1830) 4 Pet. 514, 561, 7 L. ed. 939; and see Water, L. & G. Co. v. Hutchinson (1907) 207 U. S. 385, 28 Sup. Ct. 135, 52 L. ed. 257. The court might have cited also Owensboro W. Co. v. Owensboro (1903) 191 U. S. 358, 24 Sup. Ct. 82, 48 L. ed. 217 ; Knoxville W. Co. v. Knoxville ( 1903 ) 189 U. S. 434, 436, 23 Sup. Ct. 531,532, 47 L. ed. 887 ; Louisville & N. R. Co. v. Kentucky ( 1902) 183 U. S. 503, 517, 22 Sup. Ct. 95, 101, 46 L. ed. 298; Rogers P. W. Co. v. Fergus (1901) 180 U. S. 624, 21 Sup. Ct. 490, 45 L. ed. 702; and cases cited in the remainder of this section, which deal with rates. And see Cedar R. G. L. Co. V. Cedar Rapids (1912) 223 U. S. 655, 667, 668, 32 Sup. Ct. 389, 390, 56 L. ed. 594, and the following cases which, while they do not deal with rates directly, support the same proposition: Detroit U. Ry. v. Detroit (1913) 229 U. S. 39, 33 Sup. Ct. 697, 57 L. ed. 1056; Berryman v. Whitman College ( 1912) 222 U. S. 334, 32 Sup. Ct. 147, 56 L. ed. 225; J. W. Perry Co. V. Norfolk (1911) 220 U. S. 472, 480, 31 Sup. Ct. 465, 468, 55 L. ed. 548; St. Louis V. United Rys. Co. (1908) 210 U. S. 266, 28 Sup. Ct. 630, 52 L. ed. 1054; Blair v. Chicago (1906) 201 U. S. 400, 26 Sup. Ct. 427, 50 L. ed. 801; Pearsall v. Great N. Ry. Co. (1896) 161 U. S. 646, 16 Sup. Ct. 705, 40 L. ed. 838. 338 THE IMPAIRMENT OF CONTRACTS. to be charged by that company.^^ Even where the char- ter in general terms authorizes the company to regulate the rates, the state may subsequently vest in a commis- sion the power to limit those rates; ^^ where a charter vests that power in a commission of which some mem- bers are to be appointed by the company, the legislature may nevertheless itself place limitations upon the charges ; ^^ and it has been said, although, in view of the facts of the case, it was not decided, that where a water 22 Louisville & N. R. Co. v. Kentucky (1902) 183 U. S. 503, 517, 518, 22 Sup. Ct. 95, 101, 46 L. ed. 298; Chicago, M. & St. P. Ry. Co. v. Minnesota (1890) 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. ed. 970; Georgia R. & B. Co. V. Smith (1888) 128 U. S. 174, 9 Sup. Ct. 47, 32 L. ed. 377; Ruggles V. Illinois (1883) 108 U. S. 526, 2 Sup. Ct. 832, 27 L. ed. 812; Illinois C. R Co. V. Illinois (1883) 108 U. S. 541, 2 Sup. Ct. 839, 27 L. ed. 818; Chicago, B. & Q. R. Co. V. Iowa (1876) 94 U. S. 155, 24 L. ed. 94. See also Pearsall V. Great N. Ry. Co. (1896) 161 U. S. 646, 16 Sup. Ct. 705, 40 L. ed. 838; Pennsylvania R. Co. v. Miller (1889) 132 U. S. 75, 84, 10 Sup. Ct. 34, 37, 33 L. ed. 267.— In Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 393, 14 Sup. Ct. 1047, 1052, 38 L. ed. 1014, the court suggested that the mere chartering of a railroad company by a state of itself created an implied con- tract which limited to some extent the power of the state over the rates which might be charged by the railroad. The thought suggested in that case, however, has not been developed in later cases, and as the implied contract, if any, would not secure to the railroad any greater protection than that which the court has declared to be secured to the railroad by other provisions of the Constitution upon which a number of decisions have been based, that supposed implied contract in the charter may be safely ignored. With Reagan v. Farmers' L. & T. Co. see Cleveland G. & C. Co. v. Cleveland (1891) 71 Fed. 610; Rushville v. Rushville N. G. Co. (1905) 164 Ind. 162, 73 N. E. 87; Capital C. G. Co. v. Des Moines (1896) 72 Fed. 829. 23 Southern P. Co. v. Campbell (1913) 230 U. S. 537, 33 Sup. Ct. 1027, 57 L. ed. 1610; Stone v. Farmers' L. & T. Co. (1886) 116 U. S. 307, 6 Sup. Ct. 334, 388, 1191, 29 L. ed. 636; Stone v. Illinois C. R. Co. (1886) 116 U. S. 347, 6 Sup. Ct. 348, 388, 1191, 29 L. ed. 650; Georgia R. & B. Co. v. Smith (1888) 128 U. S. 174, 9 Sup. Ct. 47, 32 L. ed. 377; Chicago, M. & St. P. Ry. Co. V. Minnesota (1890) 134 U. S. 418, 10 Sup. Ct. 462, 33 L. ed. 970; Owensboro v. Owensboro W. Co. (1904) 191 U. S. 358, 24 Sup. Ct. 82, 48 L. ed. 217, and cases there cited. Compare note 20, supra. 24 Spring v. W. W. v. Schottler (1884) 110 U. S. 347, 4 Sup. Ct. 48, 28 L. ed. 173; Spring V. W. W. v. Bartlett (1883) 16 Fed. 615. INTERPRETATION OF CONTRACTS. 339 company was organized under a statute providing that the commissioners should not reduce the rates below a stated limit, the state may authorize the commissioners to reduce the rates below that limit.^^ Parties exempted. 194. Moreover, even an express grant of exemption from regulation does not by implication extend to a pur- chaser ^^ or a lessee ^^ from the grantee. And the court has held in the case of a gas company that a purchasing company which was exempt from rate regulation had not 25 Stanislaus County v. San J. & K. R. C. & I. Co. (1904) 192 U. S. 201, 24 Sup. Ct. 241, 48 L. ed. 406. The state constitution had reserved to the legislature the power to amend or repeal the statute involved. See also Winchester & L. T. K. Co. v. Croxton (1896) 98 Ky. 739, 34 S. W. 518, 33 L. R. A. 177; Houston & T. C. R. Co. v. Storey (1906) 149 Fed. 499. 26 Norfolk & W. R. Co. v. Pendleton (1895) 156 U. S. 667, 15 Sup. Ct. 413, 39 L. ed. 574; St. Louis & S. F. Ry. Co. v. Gill (1895) 156 U. S. 649, 15 Sup. Ct. 484, 39 L. ed. 567; Grand R. & I. Ry. Co. v. Osborn (1904) 193 U. S. 17, 24 Sup. Ct. 310, 48 L. ed. 598; Shields v. Ohio (1877) 95 U. S. 319, 24 L. ed. 357; Chicago G. W. Ry. Co. v. Minnesota (1910) 216 U. S. 234, 30 Sup. Ct. 353, 54 L. ed. 460; Wright v. Georgia R. & B. Co. (1910) 216 U. S. 420, 30 Sup. Ct. 242, 54 L. ed. 544; Yazoo & M. V. R. Co. v. Vicksburg (1908) 209 U. S. 358, 28 Sup. Ct. 510, 52 L. ed. 833; Rochester Ry. Co. v. Rochester (1907) 205 U. S. 236, 27 Sup, Ct. 469, 51 L. ed. 784. See also San Antonio T. Co. v. Altgelt (1906) 200 U. S. 304, 26 Sup. Ct. 261, 50 L. ed. 491; Covington & L. T. R. Co. v. Sandford (1896) 164 U. S. 578, 17 Sup. Ct. 198, 41 L. ed. 560; Snell v. Chicago (1890) 133 111. 413, 24 N. E. 532, 8 L. R. A. 858; Matthews v. Board of Corp. Comrs. (1899) 97 Fed. 400. In Louisville v. Cumberland T. & T. Co. (1912) 224 U. S. 649, 32 Sup. Ct. 572, 56 L. ed. 934, and Minneapolis v. Minneapolis S. Ry. Co. (1910) 215 U. S. 417, 30 Sup. Ct. 118, 54 L. ed. 259, there were questions of estoppel of the municipality. Compare Owensboro v. Cumberland T. k T. Co. (1913) 230 U. S. 58, 33 Sup. Ct. 988, 57 L. ed. 1389; Seaboard A. L. Ry. Co. V. Railroad Comn. (1907) 155 Fed. 792; Ball v. Rutland R. Co. (1899) 93 Fed. 513. 27 See Jetson v. University of the South (1908) 208 U. S. 489, 28 Sup. Ct. 375, 52 L. ed. 584; Chicago U. T. Co. v. Chicago (1902) 199 111. 484, 65 N. E. 451, 59 L. R. A. 631. 340 THE IMPAIRMENT OF CONTRACTS. secured exemption as to property which it had acquired from a company which was not exempt.^ ^ LIMITATIONS UPON POWER TO CONTRACT. In general. 195. Of course, the provision of the Constitution which we are considering does not apply if the parties to a con- tract are without power to make a binding contract, as would be the case if the state legislature were forbidden by the state constitution to make such a contract as to rates^^ or if a municipality had not received from the state authority to enter into such a contract;^*' and the provision would not apply if the contract were for other special reasons subject to subsequent state legislation which might destroy its f orce.^^ Such cases we shall now consider, noting first the points on which the law is most clearly settled. Contract with municipalities. 196. A municipality cannot by contract bind itself not to regulate rates unless the power so to bind itself has been clearly granted to the municipality. In some cases 28 People's G. & C. Co. v. Chicago (1904) 194 U. S. 1, 24 Sup. Ct. 520, 48 L. ed. 851. 29 See Gulf & S. I. R. Co. v. Hewes (1901) 183 U. S. 66, 22 Sup. Ct. 26, 46 L. ed. 86; Planters' I. Co. v. Tennessee (1896) 161 U. S. 193, 16 Sup. Ct. 466, 40 L. ed. 667; Keokuk & W. R. Co. v. Missouri (1894) 152 U. S. 301, 14 Sup. Ct. 592, 38 L. ed. 450; Bier v. McGehee (1893) 148 U. S. 137, 13 Sup. Ct. 580, 37 L. ed. 397; Lake County v. Graham (1889) 130 U. S. 674, 9 Sup. Ct. 654, 32 L. ed. 1065; Railroad Companies v. Gaines (1878) 97 U. S. 697, 24 L. ed. 1091; Shields v. Ohio (1877) 95 U. S. 319, 24 L. ed. 357; Morgan v. Louisiana (1876) 93 U. S. 217, 23 L. ed. 860; Trask v. Maguire (1873) 18 Wall. 391, 21 L. ed. 938; and cases cited in Patterson, The United States and the States Under the Constitution, 2d ed., p. 148. 30 See sec. 196, infra. 31 See sees. 197-199, infra. \ LIMITATIONS UPON POWER TO CONTRACT. 341 exemptions from regulation have been secured by con- tract and have been sustained against later ordinances by which the municipalities have attempted to impair the obligation of those contracts.^^ But in other cases where it has been claimed that municipalities had by ordinance limited their power over the charges of public service companies ^^ the court has decided that the municipalities involved had not received from the state the power to bind themselves by contract not to regulate those rates.^^ 32 See note 18, supra. 33 Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 273, 29 Sup. Ct. 50, 52, 53 L. ed. 176; Freeport W. Co. v. Freeport (1901) 180 U. S. 587, 21 Sup. Ct. 493, 45 L. ed. 679. See also Murray v. Pocatello (1912) 226 U. S. 318, 33 Sup. Ct. 107, 57 L. ed. 239; Rogers P. W. Co. v. Fergus (1901) 180 U. S. 624, 21 Sup. Ct. 490, 45 L. ed. 702; Portland Ry., L. & P. Co. V. Portland (1912) 201 Fed. 119. 34 See also Berryman v. Whitman College (1912) 222 U. S. 334, 32 Sup, Ct. 147, 56 L. ed. 225: territories are like municipalities in that they possess only powers bestowed upon them. And see Northern P. Ry. Co. v. State (1908) 208 U. S. 583, 28 Sup. Ct. 341, 52 L. ed. 630; Brummitt v. Ogden W. W. Co. ( 1908 ) 33 Utah, 285, 93 Pac. 828 ; Indianapolis v. Navin (1897) 151 Ind. 139, 47 N. E. 525, 41 L. R. A, 337; Pope, Municipal Con- tracts and Rate Regulation, 16 Harv. L. Rev. 1. — As was said in Home T. & T. Co. V. Los Angeles (1908) 211 U. S. 265, 274, 29 Sup. Ct. 50, 52, 53 L. ed. 176, 183, "It is obvious that no case, unless it is identical in its facts, can serve as a controlling precedent for another, for differences, slight in them- selves, may, through their relation with other facts, turn the balance one way or the other." In that case, as the court pointed out, "The charter gave to the council the power 'by ordinance ... to regulate telephone ser- vice and the use of telephones within the city, . . . and to fix and deter- mine the charges for telephones and telephone service and connections.' This is an ample authority to exercise the governmental power of regulating charges, but it is no authority to enter into a contract to abandon the gov- ernmental power itself. It speaks in words appropriate to describe the authority to exercise the governmental power, but entirely unfitted to de- scribe the authority to contract. It authorizes command, but not agree- ment." Later on the court said, "The decisions of this court, upon which the appellant relies, where a contract of this kind was found and enforced, all show unmistakably legislative authority to enter into the contract. In Los Angeles v. Los Angeles C. W. Co. (1900) 177 U. S. 558, 20 Sup. Ct. 736, 44 L. ed. 886, the contract was in specific terms ratified and confirmed by the legislature. In Detroit v. Detroit C. S. Ry. Co. (1902) 184 U. S. 342 THE IMPAIRMENT OF CONTRACTS. The claims of exemption have been sustained in those cases in which the authority of the municipality to make the contract has appeared clearly and unmistakably; but in all other cases the claim of exemption from regulation has been denied. 368, 22 Sup. Ct. 410, 46 L. ed. 592, the contract was made in obedience to an act of the legislature that the rates should be 'established by agree- ment between said company and the corporate authorities.' The opinion of the court, after saying (184 U. S. at 382, 22 Sup. Ct. at 416, 46 L. ed. at 606 ) , 'It may be conceded that clear authority from the legislature is needed to enable the city to make a contract or agreement like the ordin- ance in question, including rates of fare,' pointed out ( 184 U. S. at 386, 22 Sup. Ct. at 417, 46 L. ed. at 607) that 'it was made matter of agreement by the express command of the legislature.' In Cleveland v. Cleveland C. Ry. Co. (1904) 194 U. S. 517, 24 Sup. Ct. 756, 48 L. ed. 1102, the legisla- tive authority conferred upon the municipality was described in the opin- ion of the court (194 U. S. at 534, 24 Sup. Ct. at 761, 762, 48 L. ed. at 1107) as 'comprehensive power to contract with street railway companies in respect to the terms and conditions upon which such roads might be con- structed, operated, extended and consolidated.' In Cleveland v. Cleveland E. Ry. Co. (1906) 201 U. S. 529, 26 Sup. Ct. 513, 50 L. ed. 854, precisely the same authority appeared. In Vicksburg v. Vicksburg W. Co. (1907) 206 U. S. 496, 27 Sup. Ct. 762, 51 L. ed. 1155, the court said (206 U. S. at 508, 27 Sup. Ct. at 766, 51 L. ed. at 1160) : 'The grant of legislative power upon its face is unrestricted, and authorizes the "city to provide for the erection and maintenance of a system of waterworks to supply said city with water, and to that end to contract with a party or parties who shall build and operate waterworks." ' Moreover, in this case the construction of the Supreme Court of Mississippi of its own statutes was followed. On the other hand, it was held in Freeport W. Co. v. Freeport (1901) 180 U. S. 587, 21 Sup. Ct. 493, 45 L. ed. 679, that two acts of the legislature passed on successive days authorizing municipalities to 'contract for a sup- ply of water for public use for a period not exceeding thirty years,' and to authorize private persons to construct waterworks 'and maintain the same at such rates as may be fixed by ordinance, and for a period not exceeding thirty years,' did not confer an authority upon the municipality to con- tract that the water company should be exempt from the exercise of the governmental power to regulate rates. In this case, too, the construction of the highest court of the state was followed. See Rogers P. W. Co. v. Fergus (1901) 180 U. S. 624, 21 Sup. Ct. 490, 45 L. ed. 702. All these cases agree that the legislative authority to the municipality to make the contract must clearly and unmistakably appear. It does not so appear in the case at bar:" 211 U. S. at 276, 277, 29 Sup. Ct. at 53, 54, 53 L. ed. at 184. LIMITATIONS UPON POW^R TO CONTRACT. 343 Contracts between state and carrier. 197. While a public service corporation may by con- tract with the state or with a local government secure some exemptions from regulation of its rates, the rule must be stated in guarded language. The contracts which have been enforced have all been contracts establishing maximum rates. And the court has been careful to sug- gest that the exemptions must be for a definite tenn, not grossly unreasonable in point of time.^^ Even without this suggestion it would seem clear that there must be some limits to the power of the state to bargain away its right to regulate public service corporations ; that, for ex- ample, a statute by which a state waived its right to pre- vent discrimination in rates would not invalidate subse- quent state legislation against such discrimination. In cases in which rates were not involved the court has re- peatedly decided that there are serious limitations upon the power of the state to bargain away its right to enact legislation.^^ Still, if the legislature has by a definite contract au- thorized a carrier to charge specific rates, the courts can- 35 Home T. & T. Co. v. Los Angeles (1908) 211 U. S. 265, 273, 29 Sup. Ct. 50, 52, 53 L. ed. 176; Vieksburg v. Vicksburg W. Co. (1907) 206 U. S. 496, 508, 515, 27 Sup. Ct. 762, 766, 769, 51 L. ed. 1155. See also Portland Ry., L. & P. Co. V. Portland (1912) 201 Fed. 119, 125. 36 See e. g., West C. S. R. Co. v. People (1906) 201 U. S. 506, 26 Sup. Ct. 518, 50 L. ed. 845; Northern P. Ry. Co. v. Minnesota (1908) 208 U. S. 583, 28 Sup. Ct. 341, 52 L. ed. 630; Texas & N. O. R. Co. v. Miller (1911) 221 U. S. 408, 31 Sup. Ct. 534, 55 L. ed. 789; and also Louisville & N. R. Co. V. Kentucky (1902) 183 U. S. 503, 518, 22 Sup. Ct. 95, 101, 46 L. ed. 298; Pearsall v. Great N. Ry. Co. (1896) 161 U. S. 646, 673, 675, 16 Sup. Ct. 705, 713, 714, 40 L. ed. 838; cases cited in Patterson, The United States and the States Under the Constitution, 2d ed., pp. 178, 149; Black, Constitu- tional Law, 3d ed., p. 737; Eubank v. Richmond (1912) 226 U. S. 137, 142, 33 Sup. Ct. 76, 77, 57 L. ed. 156. Compare Owensboro v. Cumberland T. & T. Co. (1913) 230 U. S. 58, 33 Sup. Ct. 988, 57 L. ed. 1389; Grand T. W. Ry. Co. V. South Bend (1913) 227 U. S. 544, 33 Sup. Ct. 303, 57 L. ed. 633. 344 THE IMPAIRMENT OF CONTRACTS. not say that the common law limitation as to rates re- mains nevertheless in force and may be enforced as such by the courts.^'^ The legislature certainly has power to change the common law.^^ Contracts between carriers or between carrier and patron. 198. If a state legislature attempted to abrogate a con- tract between two carriers or between a carrier and one of its jDatrons simply in order to relieve one of the parties to that contract from a burdensome obligation, such a statute might well be declared unconstitutional. But if the invalidating of contracts were simply a necessary in- cident '^'^ to the enforcement of a regulation enacted for public ends, it seems that such a statute should be sus- tained. As the court has well said, "One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the state by making a contract about them. The contract will carry with it the infirmity of the subject-matter. ' ' ^" 3" This suggestion was made in Pope, Municipal Contracts and Rate Regulation, 16 Harv. L. Rev. 1, 20, 21; Fenwick, Charter Contracts and the Regulation of Rates, 9 Mich. L. Rev. 225, 227. 38 See sec. 33, supra. 39 See comment in note 65 in Chapter 1 on Armour P. Co. v. United States (1908) 209 U. S. 56, 28 Sup. Ct. 428, 52 L. ed. 681. 40 Hudson C. W. Co. v. McCarter (1908) 209 U. S. 349, 357, 28 Sup. Ct. 529, 531, 52 L. ed. 828. See also Knoxville W. Co. v. Knoxville (1903) 189 U. S. 434, 438, 23 Sup. Ct. 531, 532, 47 L. ed. 887; Osborne v. San Diego L. & T. Co. (1900) 178 U. S. 22, 20 Sup. Ct. 860, 44 L. ed. 961; Chicago, B. & Q. R. Co. v. Iowa (1876) 94 U. S. 155, 24 L. ed. 94; Manigault v. Springs (1905) 199 U. S. 473, 480, 26 Sup. Ct. 127, 130, 50 L. ed. 274, in the last of which the court said, "The interdiction of statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. . . Parties by entering into contracts may not estop the legislature from enacting laws in- tended for the public good." And see United States T. Co. v. Central U. 1 I POWER TO ALTER, AMEND OR REPEAL. 345 POWER TO ALTER, AMEND OR REPEAL. 199. Many of the states have by their constitutions or by general statutes reserved the right to alter, amend or repeal charters of incorporation.^^ Those reservations vary in their terms'^^ and of course it is impossible here to discuss the extent of the reserved power in the several states. It is sufficient to point out that such reservations become part of the charters which are subsequently granted and that they have very materially affected the operation of the impairment of contract clause.^^ By T. Co. (1913) 202 Fed. 66; Portland Ry., L. & P. Co. v. Portland (1912) 200 Fed. 890; BuflFalo E. S. R. Co. v. Buffalo S. R. Co. (1888) 111 N. Y. 132, 19 N. E. 63, 2 L. R. A. 384, and annotations thereto in L. R. A. Cas. as Authorities; Jamieson v. Indiana N. G. Co. (1891) 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652; and language used in Philadelphia, B. & W. R. Co. t. Schubert (1912) 224 U. S. 603, 613, 614, 32 Sup. Ct. 589, 592, 56 L. ed. 911, the last of which relates to federal legislation, to which, of course, the impairment of contract clause does not apply. With the cases in this note compare Portland Ry., L. & P. Co. v. Portland (1912) 201 Fed. 119; Omaha W. Co. v. Omaha (1906) 147 Fed. 1, 12 L. R. A. N. S. 736. 41 The provisions which were in force in the several states in 1905 appear in 44 Am. L. Reg. N. S. 160-169 as an appendix to an article by Horace Stern, Esq., on Limitations on the Power of a State Under a Reserved Right to Alter, Amend or Repeal Charters of Incorporation. 42 This is well pointed out in the opinion in Ex parte Koehler (1885) 23 Fed. 529, 531. Some of the expressions in opinions cited in note 43, infra, may possibly be explained on the grounds set forth in Ex parte Koehler. 43 See, e. g., Berea College v. Kentucky (1908) 211 U. S. 45, 29 Sup. Ct. 33, 53 L. ed. 81; Polk v. Mutual R. F. L. Assn. (1907) 207 U. S. 310, 28 Sup. Ct. 65, 52 L. ed. 222; Fair H. & W. R. Co. v. New Haven (1906) 203 U. S. 379, 27 Sup. Ct. 74, 51 L. ed. 237; San Antonio T. Co. v. Altgelt (1906) 200 U. S. 304, 26 Sup. Ct. 261, 50 L. ed. 491; Stanislaus County v. San J. & K. R. C. & L Co. (1904) 192 U. S. 201, 24 Sup. Ct. 241, 48 L. ed. 406; Spring V. W. W. v. Schottler (1884) 110 U. S. 347, 4 Sup. Ct. 48, 28 L. ed. 173; Close v. Glenwood Cemetery (1882) 107 U. S. 466, 476, 2 Sup. Ct. 267, 274, 27 L. ed. 408; Stone v. Wisconsin (1876) 94 U. S. 181, 24 L. ed. 102; People v. Public Service Comn. (1912) 153 N. Y. App. Div. 129, 138 N. Y. Supp. 434; Matthews v. Board of Corp. Comrs. (1899) 97 Fed. 400; Parker v. Metropolitan R. Co. (1872) 109 Mass. 506; cases in note 44, infra; Patterson, The United States and the States Under the Constitution, 346 THE IMPAIRMENT OF CONTRACTS. virtue of such statutes and provisions of the state consti- tutions, the states may withdraw from the corporations the right to continue to exercise powers which have been bestowed upon them by the charters of incorporation, and it may modify those powers. This is true even though in so doing it destroys the power of a corporation to meet its existing liabilities,'*'* Where, however, by the exercise of those powers prop- erty has been acquired, the reserved right to alter, amend or repeal the charter of incorporation does not empower the state to deprive the share-holders of a corporation of that property."*^ It does not authorize the state to violate the Fourteenth Amendment. We have already consid- ered the question whether a state may by contract acquire over a corporation power which the state would not oth- 2d ed., p. 165; Stern, op. cit., 44 Am. L. Reg. N. S. 17, 18; Southern P. Co. V. Portland (1913) 227 U. S. 559, 33 Sup. Ct. 308, 57 L. ed. 642. Com- pare Owensboro v. Cumberland T. & T. Co. (1913) 230 U. S. 58, 33 Sup. Ct. 989, 57 L. ed. 1389; Pennsylvania R. Co. v. Philadelphia County (1908) 220 Pa. 100, 68 Atl. 676, 15 L. R. A. N. S. 108, with which see 44 Am. L. Reg. N. S. 17, 18, note. 44Calder v. Michigan (1910) 218 U. S. 591, 599, 31 Sup. Ct. 122, 123, 54 L. ed. 1163; Polk v. Mutual R. F. L. Assn. (1907) 207 U. S. 310, 28 Sup. Ct. 65, 52 L. ed. 222; Manigault v. Springs (1905) 199 U. S. 473, 480, 26 Sup. Ct. 127, 130, 50 L. ed. 274; Knoxville W. Co. v. Knoxville (1903) 189 U. S. 434, 437, 438, 23 Sup. Ct. 531, 532, 47 L. ed. 887; New O. W. Co. V. Louisiana (1902) 185 U. S. 336, 353, 354, 22 Sup. Ct. 691, 697, 46 L. ed. 936; Chicago L. I. Co. v. Needles (1885) 113 U. S. 574, 5 Sup. Ct. 081, 28 L. ed. 1084; Mumma v. Potomac Co. (1834) 8 Pet. 281, 8 L. ed. 945; see also Monongahela N. Co. v. United States (1893) 148 U. S. 312, 338, 340, 13 Sup. Ct. 622, 631, 632, 37 L. ed. 463; Newport & C. B. Co. v. United States (1881) 105 U. S. 470, 26 L. ed. 1143; Greenwood v. Freight Co. (1881) 105 U. S. 13, 26 L. ed. 961. 45 Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 698, 19 Sup. Ct. 565, 570, 43 L. ed. 858; County of Santa Clara v. Southern P. R. Co. (1883) 18 Fed. 385; County of San Mateo v. Southern P. R. Co. (1883) 13 Fed. 722; Bacon v. Robertson (1885) 18 How. 480, 15 L. ed. 499; Mumma t. Potomac Co. (1834) 8 Pet. 281, 8 L. ed. 945. Compare Stern, Limitations on the Power of a State Under the Reserved Right to Alter, Amend or Repeal Charters of Incorporation, 44 Am. L. Reg. N. S. 1, 36. POWER TO ALTER, AMEND OR REPEAL. 347 erwise possess.'*^ But such a power clearly is not ob- tained by a mere reservation of the right to alter, amend or repeal the charter. So also, while a state may repeal a charter for any rea- son whatever and may doubtless so do because of a re- fusal on the part of the corporation to comply with a statute which it is beyond the power of the state to en- act,'*'^ this reserved power to alter, amend or repeal the charter simply places a power of punishment in the hands of the state and does not validate a statute which would violate a provision of the Constitution other than the im- pairment of contract clause.^ ^ A state may, however, regardless of any reservation of power to repeal the charter, revoke that charter for mis- user without thereby violating the Constitution.^^ And where the property of an individual might be appropri- ated upon the payment of just compensation, the property of a corporation or of its stock-holders may unquestion- ably be appropriated in the same manner.^** 46 See sec. 22, supra. 47 See Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 697, 698, 19 Sup. Ct. 565, 570, 43 L. ed. 858; opinion of Holmes, J., dissenting, in Western U. T. Co. v. Kansas (1910) 216 U. S. 1, 54, 55, 30 Sup. Ct. 190, 209, 54 L. ed. 355, and cases there cited. 48 Lake S. & M. S. Ry. Co. v. Smith (1899) 173 U. S. 684, 19 Sup. Ct. 565, 43 L. ed. 858. Compare Chesapeake & P. T. Co. v. Manning (1902) 186 U. S. 238, 22 Sup. Ct. 881, 46 L. ed. 1144, and dissenting opinion in that case. 49 Cosmopolitan Club v. Virginia (1908) 208 U. S. 378, 28 Sup. Ct. 394, 52 L. ed. 536. 50 Long I. W. S. Co. V. Brooklyn (1897) 166 U. S. 685, 17 Sup. Ct. 718. 41 L. ed. 1165; Offield v. New Y., N. H. & H. B. Co. (1906) 203 U. S. 372, 27 Sup. Ct. 72, 51 L. ed. 231. CHAPTER vnr. PREFERENCES TO PORTS. INTRODUCTORY. 200. The provision. 201. ORGANS OF GOVERNMENT RESTRAINED. BEARING ON RATE REGtHLATION. 202. In general. 203. Differentials. INTRODUCTORY. The provision. 200. The Constitution in Article 1, section 9, clause 6, provides that ' ' No preference shall be given by any regu- lation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in an- other. ' ' ORGANS OF GOVERNMENT RESTRAINED. 201. Both the context and the subject-matter show clearly that this clause of the Constitution relates only to the federal government ; ^ and, on the other hand, the clause obviously applies not only to legislation but also to other governmental action, so that even though an act of Congress were in itself constitutional, the giving of a iSee Munn v. Illinois (1876) 94 U. S. 113, 135, 24 L. ed. 77. The sena- torial arguments quoted in 41 Am. L. Rev. 824-826 show a surprising over- sight of the distinction between governmental action and individual action. Compare the Civil Rights Cases (1883) 109 U. S. 3, 3 Sup. Ct. 18, 27 L. ed. 835. 348 BEARING ON RATE REGULATION. 349 preference by a commission acting under that statute would be unconstitutional.- BEAEING ON RATE REGULATION. In general. 202. It is obvious that rate regulations may be of such a nature as to violate this provision of the Constitution. Rate regulations are unquestionably regulations of com- merce; ^ and if they are of such a nature as to cause ves- sels to load or unload at a port of one state rather than at a port of another state they must be prohibited by the sweeping language of the clause which we are consider- ing.^ It is true that the court recognizes the fact that it can- not carry out a constitution with mathematical accuracy to logical extremes ; ^ and it refuses to make far-fetched interpretations of this restraint upon the power which was granted to Congress by the commerce clause.^ Thus, while the regulation of interstate commerce by rail may give an advantage to commerce wholly by water and to ports which can be reached by means of inland naviga- 2 Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014; Noyes, American Railroad Rates, 228. 3 Chap. 1, supra. 4 Compare Noyes, American Railroad Rates, 227. — On the history of the adoption of the provision see Knowlton v. Moore (1900) 178 U. S. 41, 104- 106, 20 Sup. Ct. 747, 772, 44 L. ed. 969. 5 See sees. 110, 139, note, 140, note, 101, supra. 6 See decisions and discussions in Pennsylvania v. Wheeling & B. B. Co. (1885) 18 How. 421, 15 L. ed. 435; South Carolina v. Georgia (1876) 93 U. S. 4, 23 L. ed. 782. In the former case it was held that the clause did not invalidate an act of Congress which legalized the construction of a bridge over navigable waters, although the bridge obstructed the commerce of a port in another state; and in the latter case it was held that the clause did not apply to a diverting of water from one navigable stream to another in order to improve navigation in the latter stream. 350 PREFERENCES TO PORTS. tion, the fact that such regulation may affect the ports of one state more than those of another is not in itself suffi- cient to render the legislation unconstitutional." The legislation applies uniformly throughout the United States to all commerce of the same nature; and the court declares that the advantages which some shippers may possess are natural advantages and are not created by statutory law.^ Differentials. 203. It is possible also that the court would recognize the validity of differentials, so far as they were created to offset the natural disadvantages of one or more of the ports affected and to place those ports on a plane more nearly equal. ^ This question apparently has never been raised in court. 7 Armour P. Co. v. United States (1908) 209 U. S. 56, 80, 28 Sup. Ct. 428, 435, 52 L. ed. 681, affirming Armour P. Co. v. United States (1907) 153 Fed. 1, 14, 15, 14 L. R. A. N. S. 400. 8 Armour P. Co. v. United States, ubi supra. 9 On this point see Noyes, American Railroad Rates, 229, where it is said, "A preference, within the meaning of the constitutional provision, seems clearly to mean an undue advantage. The commission would have the right to consider the conditions of the railroads and the traffic going to dififerent ports. The requirement of a uniform charge per ton per mile to diflFerent ports instead of treating the ports with equality might give the very prefer- ence prohibited by the Constitution. Levelling rates without regard to conditions would create uniformity without equality. But what would be the result should a commission, with rate-making power, attempt to adjust diflerentials between different ports? An arbitrary differential would un- doubtedly infringe the constitutional provision against port preferences — assuming that it applies to land transportation. A differential based upon differences in conditions, on the other hand, would not seem to be an un- lawful preference." But in Morawetz, The Power or Congress to Regulate Railway Rates, 18 Harv. L. Rev. 572, 586, 587, it is said, "It is obvious that an act of Congress, or an order of a commission, merely fixing the maximum rates that may be charged by railway companies in respect of shipments to or through certain ports, would not give a preference to the BEARING ON RATE REGULATION. 351 But, on the other hand, it seems clear that if a differen- tial more than offset natural disadvantages or, instead of merely allowing the ports of one state to profit by the natural advantages of their position, were to give to them ports of one state over those of another, because the railway companies leading to each port would compete freely with those leading to other ports by reducing their rat^s. The establishment of a differential in favor of the railways leading to a certain port implies that the railways leading to other ports shall be prohibited from reducing their rates below a pre- scribed minimum, and that free competition among them shall thus be stopped. While, possibly, it may be held that the establishment of such a differential in respect of shipments between interior points and the cities situated at different ports would not necessarily give a direct preference to any port, because such shipments may not go through the ports [on which, see opinion of Attorney-General Moody, as printed in Hearings of Senate Committee on Interstate Commerce, May, 1905, vol. II, p. 1672, 25 Opinions of Attorney-General, 437, 438], it seems clear that a preference would be given by a differential in respect of through shipments to or from foreign points. As the through rates in respect of shipments between the same points must necessarily be substantially alike by all routes, the obvious purpose of the differential would be to give to the steamship lines from certain ports a larger share of the through rates than the steamship lines from other ports. It is difficult to see how the courts could avoid recognizing the fact that the direct and necessary result would be to give a preference by statute to certain ports at the expense of others. It is no answer to say that a regulation of Congress, or of a commission, merely establishing 'the just relation of rates' upon shipments by different ports, would not grant a preference to the ports of any state. Stated baldly, this would mean that Congress, or a commission, can take away from a particu- lar port its natural advantages by granting a law-made advantage to other ports by means of a preferential regulation of commerce. The Constitu- tion provides that no preference shall be given by any regulation of com- merce to the ports of one state over those of another. To hold that Con- gress or a commission can by law give to the various ports such preferences as in the judgment of Congress, or a commission, will equalize their na- tural advantages would wholly destroy the value of the constitutional pro- hibition. The constitutional prohibition was designed to prevent sectional legislation that might array one part of the country against another. . . . If the power to fix the relative rates of transportation to and from differ- ent ports or sections of the country is conferred upon [the Commission], the adjustment of railway rates in the United States will inevitably become a political question." See also Olney, Some Legal Aspects of Railroad Rate-making by Congress, 181 N. A. Rev. 481, 482, 483; Hearings of Sen- ate Committee on Interstate Commerce, April, 1905, vol. II, pp. 1121, 1123. 352 PREFERENCES TO PORTS. a distinct advantage over the ports of another state, which advantage rested on a preference or policy upon the part of Congress or its commission, such a differen- tial should be declared unconstitutional.^*^ 10 See Armour P. Co. v. United States (1908) 209 U. S. 56, 80, 28 Sup. Ct. 428, 435, 52 L. ed. 681; and references to Morawetz and Olney in note 9, supra; with which compare Pennsylvania v. Wheeling & B. B. Co. (1855) 18 How. 421, 433, 15 L. ed. 435; South Carolina v. Georgia (1876) 93 U. S. 4, 13, 23 L. ed. 782. I CHAPTER IX. LIMITATIONS UPON FEDERAL JUDICIAL POWER. SUITS AGAINST THE GOVERNMENT. 204. General rule. 205. What governments come within the rule. 206. Suits against public oflBcials. ENFORCEMENT OF LAW. 207. Indictment. 208. Putting twice in jeopardy. 209. Due process of law. 210. Trials in criminal cases. 211. Suits at common law. 212. Self-incrimination. 213. Unreasonable searches and seizures. 214. Other testimony. 215. Punishment. DECISION OF CONSTITUTIONAL QUESTIONS. 216. Questions which may be brought before the court. 217. Rules of construction. 218. Partial unconstitutionality. SUITS AGAINST THE GOVERNMENT. General rule. 204. A sovereign govenunent cannot be subjected to suit against its will by any individual.^ This principle iSee Hans v. Louisiana (1890) 134 U. S. 1, 10 Sup. Ct. 504, 33 L. ed. 842; United States v. Lee (1882) 106 U. S. 196, 206, 1 Sup. Ct. 240, 249, 27 L. ed. 171; Porto Rico v. Rosaly (1913) 227 U. S. 270, 33 Sup. Ct. 352, 57 L. ed. 507; Kawananakoa v. Polyblank (1907) 205 U. S. 349, 27 Sup. Ct. 526, 51 L ed. 834; Hopkins v. Clemson Agricultural College (1911) 221 U. S. 636, 642, 644, 31 Sup. Ct. 654, 656, 657, 55 L. ed. 683; Murray v. Wilson D. Co. (1909) 213 U. S. 151, 29 Sup. Ct. 458, 53 L. ed. 742; Kansas v. Colorado (1907) 206 U. S. 46, 83, 27 Sup. Ct. 655, 661, 51 L. ed. 950; Briggs V. Lightboats (1865) 93 Mass. (11 Allen) 157, 162; Singewald, The Doctrine of Non-suability of the State in the United States, 28 Johns Hop- kins University Studies, Part I; and also Wolf man. Sovereigns as Defend- ants, 4 Am. Jour, of Int. Law. 373. 353 23 354 LIMITATIONS UPON FEDERAL JUDICIAL POWER. was well-recognized long before the adoption of the Fed- eral Constitution ^ and the men who were most instru- mental in securing the adoption of the Constitution were careful to point out during the discussion which preceded its adoption that there was nothing in the grant of judi- cial power to the federal government which would en- able the federal judiciary to take jurisdiction of such a suit against a state.^ In the year 1793, in Chisholm v, Georgia,'* the court rendered a decision which was clearly inconsistent with this principle. It decided that the provision in Article III which gave to the federal government judicial power over "controversies between a state and citizens of another state" applied not merely to cases in which a state was the plaintiff but also to cases in which a state was against its will the defendant. This decision, however, was promptly and emphatically overruled ^ by the adoption of the Eleventh Amendment which declares that ' ' The judi- cial power of the United States shall not be construed to extend to any suit at law or equity, commenced or prose- cuted against one of the United States by citizens of an- other state, or by citizens or subjects of any foreign state." 2 United States v. Lee (1882) 106 U. S. 196, 205, 1 Sup. Ct. 240, 247, 27 L. ed. 171; Hans v. Louisiana (1890) 134 U. S. 1, 10 Sup. Ct. 504, 33 L. ed. 842. 3 See Hans v. Louisiana (1890) 134 U. S. 1, 10 Sup. Ct. 504, 33 L. ed. 842, and authorities cited in opinion. 4 2 Dall. 419, 1 L. ed. 440. 5 See Singewald, The Doctrine of Non-suability of the State in the United States, 28 Johns Hopkins University Studies, 24; Hans v. Louisiana (1890) 134 U. S. 1, 10 Sup. Ct. 504, 33 L. ed. 842; Guthrie, The Eleventh Amend- ment, 8 Col. L. Rev. 183, 185, 186. Compare South Dakota v. North Caro- lina (1904) 192 U. S. 286, 318, 24 Sup. Ct. 269, 275, 48 L. ed. 448; Ex parte Young (1908) 209 U. S. 123, 150, 28 Sup. Ct. 441, 450, 52 L. ed. 714, 13 L. R. A. N. S. 932, 943, 14 A. & E. An. Cas. 764, 771. 1 SUITS AGAINST THE GOVERNMENT. 355 The effect of this Amendment was to re-establish the law as it had stood before the decision of the Supreme Court. The Amendment affected suits then pending as well as suits which might be brought in the future.^ Lit- erally interpreted it would have denied to the federal courts jurisdiction over a suit which was brought by a citizen of another state against a state with the consent of the defendant state; yet the federal courts have con- tinued to exercise jurisdiction in such cases.'^ And the Amendment does not in terms apply to a suit brought against a state by one of its own citizens; yet when such a suit was brought in a case involving the application of the Federal Constitution, and it was claimed that the grant of judicial power in all cases arising under the Con- stitution was sufficient to give the court jurisdiction, the court enforced the principle which was disregarded in Chisholm v. Georgia and said that a state may not be sued by an individual without its consent.® In short, the court does not strictly follow the terms of the Eleventh Amendment but, in view of the reason for its adoption, the court rather regards the Amendment as requiring the courts to observe the ancient rule as to the 6 Hollingsworth v. Virginia (1798) 3 Dall. 378, 1 L. ed. 644. 7 Clark V. Barnard (1883) 108 U. S. 436, 447, 2 Sup. Ct. 878, 883, 27 L. ed. 780; Curran v. Arkansas (1853) 15 How. 304, 309, 14 L. ed. 705; Hans V. Louisiana (1890) 134 U. S. 1, 17, 10 Sup. Ct. 504, 508, 33 L. ed. 842. Compare Desert W., O. & I. Co. v. California (1913) 202 Fed. 498; Singewald, The Doctrine of Non-suability of the State in the United States, 28 Johns Hopkins University Studies, 29-37 ; Guthrie, The Eleventh Amend- ment, 8 Col. L. Rev. 183, 188. On the relation of the Eleventh Amend- ment to suits in admiralty see dissenting opinion of Johnson, J., in Gov- ernor of Georgia v. Madrazo (1828) 1 Pet. 110, 124, 7 L. ed. 73; Singe- wald, ubi supra, 23. 8 Hans V. Louisiana (1890) 134 U. S. 1, 10 Sup. Ct. 504, 33 L. ed. 842. See also North Carolina v. Temple (1890) 134 U. S. 22, 10 Sup. Ct. 509, 33 L. ed. 849; Smith v. Reeves (1900) 178 U. S. 436, 20 Sup. Ct. 919, 44 L. ed. 1140. 356 LIMITATIONS UPON FEDERAL JUDICIAL POWER. suability of a sovereign government which was disre- garded in Chisholm v. Georgia. What governments come within the rule. 205. The rule that a sovereign government cannot be subjected to suit against its will by any individual applies to the federal government ^ and to the territories ^" as well as to the states/^ but it does not apply to subordinate divisions of the states, such as counties/^ or to public cor- porations, such as a state agricultural college.^ ^ Suits against public officials. 206. The rule has been held to apply not only where the state is actually named as a party defendant on the record but also where the proceeding, though nominally against an officer, is really against the state or is one in which it is an indispensable party. No suit, therefore, 9 See International P. S. Co. v. Bruce (1904) 194 U. S. 601, 24 Sup. Ct. 820, 48 L. ed. 1134; Belknap v. Schild (1896) 161 U. S. 10, 16 Sup. Ct. 443, 40 L. ed. 599; United States v. Lee (1882) 106 U. S. 196, 1 Sup. Ct. 240, 27 L. ed. 171. Compare National Home for Disabled Volunteer Sol- diers V. Parrish (1913) 229 U. S. 494, 33 Sup. Ct. 944, 57 L. ed. 1296. 10 Kawananakoa v. Polyblank (1907) 205 U. S. 349, 27 Sup. Ct. 526, 51 L. ed. 834. 11 Hans V. Louisiana (1890) 134 U. S. 1, 10 Sup. Ct. 504, 33 L. ed. 842; North Carolina v. Temple (1890) 134 U. S. 22, 10 Sup. Ct. 509, 33 L. ed. 849. Compare Ex parte Nebraska (1908) 209 U. S. 436, 28 Sup. Ct. 581, 52 L. ed. 876, for a ease in which the state was held to have no interest in the suit. 12 Lincoln County v. Luning (1890) 133 U. S. 529, 10 Sup. Ct. 363, 33 L. ed. 766; Camden I. Ry. Co. v. Catlettsburg (1904) 129 Fed. 421. See also Ettor v. Tacoma (1913) 228 U. S. 148, 154, 33 Sup. Ct. 428, 430, 57 L. ed. 773. 13 Hopkins v. Clemson Agricultural College (1911) 221 U. S. 636, 645- 649, 31 Sup. Ct. 654, 657, 658, 55 L. ed. 890. See also National Home for Disabled Volunteer Soldiers v. Parrish (1913) 229 U. S. 494, 33 Sup. Ct. 944, 57 L. ed. 1296. SUITS AGAINST THE GOVERNMENT, 357 can be maintained against a public officer which seeks to compel him to do any affirmative act which affects the state 's political or property rights, such as exercising the state's power of taxation, or paying out its money in his possession on the state's obligations, or executing a con- tract.14 But the court has repeatedly sustained injunctions is- sued against public officials to restrain the commission of acts which although done under color of authority would be unconstitutional and would cause irreparable injury.^^ Thus, a tax-collector has been enjoined where, 14 See Hopkins v. Clemson Agricultural College (1911) 221 U. S. 636, 642, 31 Sup. Ct. 654, 656, 55 L. ed. 890, citing Cunningham v. Macon & B. R. Co. (1883) 109 U. S. 446, 3 Sup. Ct. 292, 609, 27 L. ed. 992; North Carolina v. Temple (1890) 134 U. S. 22, 10 Sup. Ct. 509, 33 L. ed. 849 Louisiana v. Steele (1890) 134 U. S. 230, 10 Sup. Ct. 511, 33 L. ed. 891 Louisiana v. Jumel (1882) 107 U. S. 711, 2 Sup. Ct. 128, 27 L. ed. 448 Pennoyer v. McConnaughy (1891) 140 U. S. 1, 11 Sup. Ct. 699, 35 L. ed. 363; In re Ayers (1887) 123 U. S. 443, 8 Sup. Ct. 164, 31 L. ed. 216; Hans V. Louisiana (1890) 134 U. S. 1, 10 Sup. Ct. 504, 33 L. ed. 842; Harkrader V. Wadley (1898) 172 U. S. 148, 19 Sup. Ct. 119, 43 L. ed. 399; Hagood V. Southern (1886) 117 U. S. 52, 70, 6 Sup. Ct. 608, 616, 29 L. ed. 805. See also Murray v. Wilson D. Co. (1909) 213 U. S. 151, 29 Sup. Ct. 458, 53 L. ed. 742; International P. S. Co. v. Bruce (1904) 194 U. S. 601, 24 Sup. Ct. 820, 48 L. ed. 1134; Belknap v. Schild (1896) 161 U. S. 10, 16 Sup. Ct. 443, 40 L. ed. 599. Compare, however, Tindal v. Wesley (1897) 167 U. S. 204, 17 Sup. Ct. 770, 42 L. ed. 137; United States v. Lee (1882) 106 U. S. 196, 1 Sup. Ct. 240, 27 L. ed. 171; Atchison, T. & S. F. Ry. Co. v. O'Connor (1912) 223 U. S. 280, 32 Sup. Ct. 216, 56 L. ed. 436. Osborn v. United States (1824) 9 Wheat. 738, 6 L. ed. 204, is discussed in 1 Harv. L. Rev. 223. 15 See Hopkins v. Clemson Agricultural College (1911) 221 U. S. 636, 642-644, 31 Sup. Ct. 654, 656, 657, 55 L. ed. 890; Hans v. Louisiana (1890) 134 U. S. 1, 20, 10 Sup. Ct. 504, 509, 33 L. ed. 842; Guthrie, The Eleventh Amendment, 8 Col. L. Rev. 183; and also Elliott, The Legislatures and the Courts, 5 Pol. Sci. Quar. 224, 227. Compare International P. S. Co. v. Bruce (1904) 194 U. S. 601, 24 Sup. Ct. 820, 48 L. ed. 1134; Belknap v. Schild (1896) 161 U. S. 10, 16 Sup. Ct. 443, 40 L. ed. 599. On suits to recover property held by the state see Singewald, The Doctrine of Non- suability of the State in the United States, 28 Johns Hopkins University Studies, Part II, chap. 3. 358 LIMITATIONS UPON FEDERAL JUDICIAL POWER. under an unconstitutional law, he was about to sell the property of the tax-payer; ^^ a state land commissioner has been enjoined from proceeding under an unconstitu- tional act to cause in-eparable damage to property rights; ^'^ commissions have been restrained from enforc- ing statutes which illegally burdened interstate com- merce; ^^ and, to refer to cases concerning rate regulation, an attorney-general has been restrained from suing to re- cover penalties imposed by a statute which was declared unconstitutional,^^ and railroad commissions have been enjoined from enforcing rates which the court decided were unconstitutional.^ ° lePoindexter v. Greenhow (1885) 114 U. S. 270, 5 Sup. Ct. 903, 962, 29 L. ed. 185. iTPennoyer v. McConnaughy (1891) 140 U. S. 1, 11 Sup. Ct. 699, 35 L. ed. 363. See also Philadelphia Company v. Stimson (1912) 223 U. S. 605, 32 Sup. Ct. 340, 56 L. ed. 570; Ludwig v. Western U. T. Co. (1910) 216 U. S. 146, 30 Sup. Ct. 280, 54 L. ed. 423. Compare Oregon v. Hitchcock (1906) 202 U. S. 60, 26 Sup. Ct. 568, 50 L. ed. 423. 18 Mississippi R. Comn. v. Illinois C. R. Co. (1906) 203 U. S. 335, 27 Sup. Ct. 90, 51 L. ed. 209; McNeill v. Southern Ry. Co. (1906) 202 U. S. 543, 26 Sup. Ct. 722, 50 L. ed. 1142. 19 Ex parte Young (1908) 209 U. S. 123, 28 Sup. Ct. 441, 52 L. ed. 714, 13 L. R. A. N. S. 932, 14 A. & E. An. Cas. 764. See also Herndon v. Chi- cago, R. L & P. Ry. Co. (1910) 218 U. S. 135, 30 Sup. Ct. 633, 54 L. ed. 970; Western U. T. Co. v. Andrews (1910) 216 U. S. 165, 30 Sup. Ct. 286, 54 L. ed. 430; Scully v. Bird (1908) 209 U. S. 481, 28 Sup. Ct. 597, 52 L. ed. 899. SOProut V. Starr (1903) 188 U. S. 537, 23 Sup. Ct. 398, 47 L. ed. 584; Smyth V. Ames (1898) 169 U. S. 466, 18 Sup. Ct. 418, 42 L. ed. 819; Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014. See also Missouri, K. & T. Ry. Co. v. Hickman (1901) 183 U. S. 53, 22 Sup. Ct. 18, 46 L. ed. 78 ; Matthews and Thompson, Public Ser- vice Company Rates and the Fourteenth Amendment, 15 Harv L. Rev. 249, 353, 360; Singewald, The Doctrine of Non-suability of the State in the United States, 28 Johns Hopkins University Studies, 41, 90; Montana, W. & S. R. Co. V. Morley (1912) 198 Fed. 991; Louisville & N. R. Co. v. Railroad Comn. (1912) 196 Fed. 800 (1907) 157 Fed. 944; Central of Ga. Ry. Co. v. Railroad Comn. (1908) 161 Fed. 925; Seaboard A. L. Ry. Co. v. Railroad Comn. (1907) 155 Fed. 792. ENFORCEMENT OF LAW. 359 ENTORCEMENT OF LAW. Indictment. 207. The Fifth Amendment, which refers only to the federal govemment,^^ declares that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, ex- cept in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger. ' ' Putting twice in jeopardy. 208. The same Amendment then provides "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Without having given the point proper consideration, the court holds broadly that "jeopardy of life or limb" means "jeopardy of punish- ment."^^ The provision protects corporations as well as natural "persons." ^^ It prohibits a second placing in jeopardy for the same identical act and crime: ^^ but to violate the provision the offenses charged in the two pros- ecutions must be the same both in law and in fact.^^ If 21 See sec. 53, supra. 22 Ex parte Lange (1873) 18 Wall. 163, 168, 170, 21 L. ed. 872. With the references in that opinion to th'^, common and civil law compare sec. 123, supra, and notes 16 in Chap. 2, and 100 in Chap. 4, supra. On the sub- ject of "life or limb" consider, however, authorities cited in 17 A. & E. Enc. of L., 2d ed., 582 ; Black, Constitutional Law, 3d ed., p. 699. 23 See. 57, supra. 24 Grafton v. United States (1907) 206 U. S. 333, 27 Sup. Ct. 749, 51 L. ed. 1084; United States v. Nickerson (1855) 17 How. 204, 15 L. ed. 458. 25 Diaz V. United States (1912) 223 U. S. 442, 32 Sup. Ct. 184, 56 L. ed. 500; Gavieres v. United States (1911) 220 U. S. 338, 31 Sup. Ct. 421, 55 L. ed. 489; Flemister v. United States ( 1907) 207 U. S. 372, 28 Sup. Ct. 129, 52 L. ed. 252; Burton v. United States (1906) 202 U. S. 344, 26 Sup. Ct. 689, 50 L. ed. 1057; Hotema v. United States (1902) 186 U. S. 413, 421, 422, 22 Sup. Ct. 895, 899, 46 L. ed, 1225; United States v. Eandenbush (1834) 8 Pet. 288, 8 L. ed. 948; 17 A. & E. Enc. of L., 2d ed., 596, 602; 360 LIMITATIONS UPON FEDERAL JUDICIAL POWER. upon the former trial the jury has disagreed ^^ or if a ver- dict against the accused person has been set aside upon his motion for error at the trial,-" a second trial may be held; but where there has been a verdict in favor of the defendant the prosecution cannot be allowed a new trial.^^ And where a court which is empowered upon conviction to impose either a fine or imprisonment has imposed both a fine and imprisonment, and the fine has been paid, the court cannot thereafter modify its judgment by imposing imprisonment alone.^^ Due process of law. 209. *'Due process requires that the court which as- sumes to determine the rights of parties shall have juris- Black, Constitutional Law, 3d ed., p. 702; 12 Cyc. 280. The provision does not forbid the imposing of an additional penalty upon a prisoner upon proof of former conviction for another offense: Graham v. West Virginia (1912) 224 U. S. 616, 32 Sup. Ct. 583, 56 L. ed. 917. On continuing of- fenses see 17 A. & E. Enc. of L., 2d ed. 603. Where an act violates both a state law and a municipal ordinance a prosecution under one will not bar prosecution under the other: Ibid. 605; Black, op. cit., p. 700: compare Grafton v. United States (1907) 206 U. S. 333, 27 Sup. Ct. 749, 51 L. ed. 1084; United States v. Mason (1909) 213 U. S. 115, 29 Sup. Ct. 480, 53 L. ed. 725. 26 See cases cited in Keerl v. Montana (1909) 213 U. S. 135, 29 Sup. Ct. 469, 53 L. ed. 734. 27 United States v. Ball (1896) 163 U. S. 662, 672, 16 Sup. Ct. 1192, 1195, 41 L. ed. 300. See also Trono v. United States (1905) 199 U. S. 521. 26 Sup. Ct. 121, 50 L. ed. 292; Brantley v. Georgia (1910) 217 U. S. 284, 30 Sup. Ct. 514, 54 L. ed. 768; 12 Cyc. 279. 28Kepner v. United States (1904) 195 U. S. 100, 24 Sup. Ct. 797, 49 L. ed. 65; United States v. Ball (1896) 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. ed. 300. But the government may be allowed a writ of error where an in- dictment is quashed, for in that case the moment of jeopardy has not been reached: Taylor v. United States (1907) 207 U. S. 120, 28 Sup. Ct. 53, 52 L. ed. 130. On appeals by the government in criminal cases see United States v. Evans (1909) 213 U. S. 297, 29 Sup. Ct. 507, 53 L. ed. 803; 20 Harv. L. Rev. 219; dissenting opinion in Kepner v. United States, supra; 17 A. & E. Enc. of L., 2d ed., 584, 585. 29 Ex parte Lange (1873) 18 Wall. 163, 21 L. ed. 872. ENFORCEMENT OF LAW. 361 diction, and that there shall be notice and opportunity for hearing given the parties. Subject to these fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has up to this time sustained all state laws, statu- tory or judicially declared, regulating procedure, evi- dence and methods of trial, and held them to be consis- tent with due process of law." ^° Trials in criminal cases. 210. There are, however, other provisions of the Con- stitution which further regulate procedure in federal courts. ''The trial of all crimes, except in cases of im- peachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been com- mitted; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. "^^ ''In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where- in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have com- pulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. ' ' ^^ By virtue of these provisions a defendant whose re- moval from the district in which he was arrested to that 30 Twining v. New Jersey (1908) 211 U. S. 78, 110, 111, 29 Sup. Ct. 14, 24, 53 L. ed. 97. See also further authorities cited in sec. 65, supra. 31 Article III, sec. 2, clause 3. 32 Amendment VI. On the history of these provisions see Connor, The Constitutional Right to a Trial by a Jury of the Vicinage, 57 U. of Pa. L. Rev. 192. 362 LIMITATIONS UPON FEDERAL JUDICIAL POWER. in which it is alleged that he committed a crime is sought is entitled to show that no offense triable in the district to which his removal is sought has been committed.^^ The provisions control criminal proceedings in the District of Columbia ^^ as well as in the federal courts in the several states. Where, however, a crime has been committed within one of the territories Congress may designate the place of trial at any time previous to the trial. ^^ Con- gress may also provide that the obtaining of transporta- tion at a concession from the published rate shall be an offense which shall be triable in any district through which the transportation is had, for the constitutional re- quirement is as to the locality of the offense and not the personal presence of the offender.^*^ The provisions apply only to criminal proceedings^'^ in the federal courts; ^'^^ and the right to trial by jury may be waived by persons charged with minor offenses.^^ Federal courts may also enjoin the commission of crimes and then punish their commission without trial by jury.^^ 33Tinsley v. Treat (1907) 205 U. S. 20, 27 Sup. Ct. 430, 51 L. ed. 689; Gould V. Youngworth (1907) 205 U. S. 638, 27 Sup. Ct. 791, 51 L. ed. 920. 34Callan v. Wilson (1888) 127 U. S. 540, 8 Sup. Ct. 1301, 32 L. ed. 223. 35 Cook V. United States (1891) 138 U. S. 157, 11 Sup. Ct. 268, 34 L. ed. 906. 36 Armour P. Co. v. United States (1908) 209 U. S. 56, 28 Sup. Ct. 428, 52 L. ed. 681. 37 United States v. Zucker (1896) 161 U. S. 475, 16 Sup. Ct. 641, 40 L. ed. 777; Ex parte Terry (1888) 128 U. S. 289, 9 Sup. Ct. 77, 32 L. ed. 405; Fong Yue Ting v. United States (1893) 149 U. S. 698, 13 Sup. Ct. 977, 1016, 37 L. ed. 905; Wong Wing v. United States (1896) 163 U. S. 228, 16 Sup. Ct. 977, 41 L. ed. 140; United States v. Williams (1904) 194 U. S. 279, 24 Sup. Ct. 719, 48 L. ed. 979. 37a Nashville, C. & St. L. Ry. Co. v. Alabama (1888) 128 U. S. 96, 9 Sup. Ct. 28, 32 L. ed. 352; Twitchell v. Commonwealth (1868) 7 Wall. 321, 19 L. ed. 223. 38 Schick V. United States (1904) 195 U. S. 65, 24 Sup. Ct. 826, 49 L. ed. 99. 39 In re Debs (1895) 158 U. S. 564, 15 Sup. Ct. 900, 39 L. ed. 1092. See ENFORCEMENT OF LAW. 363 Suits at common law. 211. The Seventh Amendment declares that ''In suits at common law, where the value in controversy shall ex- ceed twenty dollars, the right of trial by jury shall be pre- served. ' ' This Amendment restrains the exercise of pow- ers by the United States, but not by the states.^^ It does not affect equity cases in the federal courts; ^^ it does not affect cases in which a defendant has voluntarily relin- quished the right to trial by jury in a particular case; ^^ and it does not forbid the awarding of a non-suit for want of sufficient evidence.^^ In all cases, however, in which the right of trial by jury is secured by the Constitution the jury must be unanimous in rendering its verdict.^^ The Seventh Amendment also provides that ''no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." By virtue of this provision no appel- late federal tribunal may consider whether the verdict of also Mack, The Revival of Criminal Equity, 16 Harv. L. Rev. 389; Gregory, Grovernment by Injunction, 11 Harv. L. Rev. 487; Fauntleroy, Government by Injunction, 69 Cent. L. J. 129; Roe, Our Judicial Oligarchy, 146-155. 40 Pearson v. Yewdall (1877) 95 U. S. 294, 24 L. ed. 436; Walker v. Sauvinet (1875) 92 U. S. 90, 23 L. ed. 678; Edwards v. Elliott (1874) 21 Wall. 532, 22 L. ed. 487. 41 Barton v. Barbour (1881) 104 U. S. 126, 26 L. ed. 672; Parsons v. Bedford (1830) 3 Pet. 433, 446, 7 L. ed. 732. See also Patterson, The United States and the States Under the Constitution, 2d ed., p. 255. But where a plaintiff has an appropriate remedy at law he cannot seek relief in a court of equity: Singer S. M. Co. v. Benedict (1913) 229 U. S. 481, 33 Sup. Ct. 942, 57 L. ed. 1288; Whitehead v. Shattuck (1891) 138 U. S. 146, 11 Sup. Ct. 276, 34 L. ed. 873; Cates v. Allen ( 1893) 149 U. S. 451, 13 Sup. Ct. 833, 977, 37 L. ed. 804. 42 Bank of Columbia v. Okely (1819) 4 Wheat. 235, 4 L. ed. 559. 43Coughran v. Bigelow (1896) 164 U. S. 301, 17 Sup. Ct. 117, 41 L. ed. 442. 44Springville v. Thomas (1897) 166 U. S. 707, 17 Sup. Ct. 717, 41 L. ed. 1172; American P. Co. v. Fisher (1897) 166 U. S. 464, 17 Sup. Ct. 618, 41 L. ed. 1079. 364 LIMITATIONS UPON FEDERAL JUDICIAL POWER. a jury in a case at common law was against the weight of the evidence.^ ^ The appellate court may set aside a ver- dict for error of law in the proceedings and order a new trial, but it may not itself determine the issues of fact.^® Self-incrimination. 212. The Fifth Amendment, which relates only to the 45 Chicago, B. & Q. R. Co. v. Chicago (1897) 166 U. S. 226, 242, 246, 17 Sup, Ct. 581, 587, 588, 41 L. ed. 979. See also Maxwell v. Dow (1900) 176 U. S. 581, 598, 20 Sup. Ct. 448, 494, 455, 44 L. ed. 597; Chrisman v. Miller (1905) 197 U. S. 313, 25 Sup. Ct. 468, 49 L. ed. 770, cases there cited, and Backus v. Fort S. U. D. Co. (1898) 169 U. S. 557, 565, 18 Sup. Ct. 445, 449, 42 L. ed. 853; Kerfoot v. Farmers' & M. Bk. (1910) 218 U. S. 281, 288, 31 Sup. Ct. 14, 15, 54 L. ed. 1042; Mammoth M. Co. v. Grand C. M. Co. (1909) 213 U. S. 72, 73, 29 Sup. Ct. 413, 414, 53 L. ed. 702. Com- pare Kansas C. S. Ry. Co. v. Albers Comn. Co. (1912) 223 U. S. 573, 32 Sup. Ct. 316, 56 L. ed. 556; Elliott v. Toeppner (1902) 187 U. S. 327, 333, 335, 23 Sup. Ct. 133, 136, 47 L. ed. 200; Capital T. Co. v, Hof (1899) 174 U. S. 1, 19 Sup. Ct. 580, 43 L. ed. 873; Cedar R, G. L. Co. v. Cedar Rapids (1912) 223 U. S. 655, 32 Sup. Ct, 389, 56 L, ed, 594; Ubarri v, Laborde (1909) 214 U, S. 168, 171, 29 Sup. Ct, 549, 551, 53 L, ed, 955; Empire S. C. Co. V. Atchison, T, & S, F. Ry. Co. (1908) 210 U. S. 1, 28 Sup, Ct. 607, 52 L. ed. 931; Behr, Meyer & Co. v. Campbell & Gu Tauco (1907) 205 U. S. 403, 407, 27 Sup. Ct. 502, 504, 51 L. ed. 857. Under the judiciary act the United States Supreme Court cannot review findings of fact by state courts : Dower v. Richards (1894) 151 U. S. 658, 14 Sup. Ct. 452, 38 L. ed. 305; Bement v. National H. Co. (1902) 186 U. S. 70, 22 Sup. Ct. 747, 46 L. ed. 1058; Minneapolis & St. L. R. Co. v. Minnesota (1904) 193 U. S. 53, 24 Sup. Ct. 396, 48 L. ed. 614; St. Louis & S. F. R. Co. v, Hadley (1909) 168 Fed, 317, 339; and see Portland Ry., L. & P. Co. v. Railroad Comn. of Oregon (1913) 229 U. S. 397, 411,33 Sup. Ct, 820, 827,57 L. ed. 1259; Max- well V. Dow, supra; Rankin v. Emigh (1910) 218 U. S. 27, 32, 30 Sup, Ct. 672, 675, 54 L, ed. 915; Thomas v. Texas (1909) 212 U. S. 278, 29 Sup. Ct. 393, 53 L. ed. 512; Waters-Pierce Oil Co. v. Texas ( 1909) 212 U. S. 86, 97, 29 Sup. Ct. 220, 221, 53 L. ed. 417; Gulf, C. & S. F. Ry. Co. v, Texas (1907) 204 U, S. 403, 411, 27 Sup. Ct. 360, 362, 51 L. ed. 540. The court may, however, it seems, review findings of fact by lower federal courts in so far as they involve questions concerning the jurisdiction of those courts: see Commercial M. A. Co. v. Davis (1909) 213 U. S. 245, 256, 29 Sup. Ct. 445, 448, 53 L. ed. 782. 46Slocum V. New Y. L. I, Co. (1913) 228 U. S. 364, 33 Sup. Ct. 523, 57 L. ed. 879; Pedersen v. Delaware, L. & W. R. Co. (1913) 229 U. S. 146, 33 Sup. Ct. 648, 57 L. ed. 1125. See also Thorndike, Trial by Jury in United States Courts, 26 Harv. L. Rev. 732. ENFORCEMENT OF LAW. 365 federal govemment,^'^ provides tliat "No person . . . shall be compelled in any criminal case to be a witness against himself." This provision rendered unconstitu- tional an act of CongTess which authorized a court to re- quire a defendant to produce his books and papers in a suit which sought the forfeiture of his estate, on pain of having the statements of the government's counsel as to the contents thereof taken as true and used as testimony for the government;"*^ and it was held to protect a wit- ness who refused to testify under a statute which stipu- lated that his testimony should not be used against him ; "^^ but it did not protect a witness who refused to testify under a later statute which afforded him absolute immunity, federal and state, for the offense to which the question related.^" Where, however, a witness has testi- 47 Sec. 53, supra. See also Twining v. New Jersey (1908) 211 U. S. 78, 29 Sup. Ct. 14, 53 L. ed. 97. 48 Boyd V. United States (1886) 116 U. S. 616, 6 Sup. Ct. 524, 29 L. ed. 746. The court said, 116 U. S. at 634, 6 Sup. Ct. at 534, 29 L. ed. at 752, that while the proceeding was civil in form it was criminal in substance and effect and therefore prohibited by the Fifth Amendment. Compare 20 Harv. L. Rev. 233 ; 5 Harv. L. Rev. 24. On dicta in Boyd v. United States see Wigmore on Evidence, pp. 3126, 3127, vol. V, p. 230. 49Counselman v. Hitchcock (1892) 142 U. S. 547, 12 Sup. Ct. 195, 35 L. ed. 1110. See also Ballman v. Fagan (1906) 200 U. S. 186, 26 Sup. Ct. 212, 50 L. ed. 433; In re Beer (1908) 17 N. D. 184, 115 N. W. 672. 50 Brown v. Walker (1896) 161 U. S. 591, 16 Sup. Ct. 644, 40 L. ed. 819. Four justices dissented. See also Hale v. Henkel (1906) 201 U. S. 43, 26 Sup. Ct. 370, 50 L. ed. 652; Interstate Com. Comn. v. Baird (1904) 194 U. S. 25, 45, 24 Sup. Ct. 563, 569, 48 L. ed. 860. The court said, 161 U. S. 605, 606, 16 Sup. Ct. 650, 40 L. ed. 824, "If the proposed tes- timony is material to the issue on trial, the fact that the testi- mony may tend to degrade the witness in public estimation does not exempt him from the duty of disclosure. . . . The design of the constitu- tional privilege is not to aid the witness in vindicating his character, but to protect him against being compelled to furnish evidence to convict him of a criminal charge. ... If it be once conceded that the fact that his testimony may tend to bring the witness into disrepute, though not to incriminate him, does not entitle him to the privilege of silence, it neces- sarily follows that if it also tends to incriminate, but at the same time 366 LIMITATIONS UPON FEDERAL JUDICIAL POWER. fied voluntarily, thereby waiving his constitutional privi- lege, he may be fully cross-examined as to the testimony which he has given.^^ While, as a general rule, a defendant may not be obliged to produce his books to furnish evidence against himself, the Amendment does not protect him against their production ; -^^ and a bankrupt may not refuse to surrender his books to the receiver; ^^ nor may the officer of a corporation refuse to produce in court its books in his possession upon the ground that they would incrimi- nate him ; ^^ and he may be required to produce such books and (in view of the protection afforded hj the immunity statute to himself in such case) to testify, although the operates as a pardon for the offense, the fact that the disgrace remains no more entitles him to immunity in this case than in the other." — The statute does not protect a witness whose testimony may be required by reason of it from prosecution for crimes with which the matters testified about were only remotely connected: Heike v. Unit«d States (1913) 227 U. S. 131, 33 Sup. Ct. 226, 57 L. ed. 450. And the statute does not protect one tes- tifying under it from prosecution for perjury while so testifying: Glick- stein V. United States (1911) 222 U. S. 139, 32 Sup. Ct. 71, 56 L. ed. 128. 51 Powers V. United States (1912) 223 U. S. 303, 32 Sup. Ct. 281, 56 L. ed. 448; Sawyer v. United States (1906) 202 U. S. 150, 26 Sup. Ct. 575, 50 L. ed. 972. 52 Johnson V. United States (1913) 228 U. S. 457, 33 Sup. Ct. 572, 57 L. ed. 919. See also Wigmore on Evidence, p. 3126. Compare People ex rel. Ferguson v. Reardon (1908) 124 N. Y. App. Div. 818, 109 N. Y. Supp. 504. 53 In the Matter of George Harris (1911) 221 U. S. 274, 31 Sup. Ct. 557, 55 L. ed. 732. 54 Wilson V. United States (1911) 221 U. S. 361, 31 Sup. Ct. 538, 55 L. ed. 771; Dreier v. United States (1911) 221 U. S. 394, 31 Sup. Ct. 550, 55 L. ed. 784; Baltimore & 0. R. Co. v. Interstate Com. Comn. (1911) 221 U. S. 612, 31 Sup. Ct. 621, 55 L. ed. 878; Wheeler v. United States (1913) 226 U. S. 478, 33 Sup, Ct. 158, 57 L. ed. 309. See also Grant v. United States (1913) 227 U. S. 74, 33 Sup. Ct. 190, 57 L. ed. 423; Heike v. United States (1913) 227 U. S. 131, 143, 33 Sup. Ct. 226, 228, 57 L. ed. 450. ENFORCEMENT OF LAW. 367 production of those books and his testimony may incrim- inate the corporation.^^ Unreasonable searches and seizures. 213. The Fourth Amendment, which, like the rest of the first ten Amendments, relates only to the federal gov- ernment, declares that ' ' The right of the people to be se- cure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly de- scribing the place to be searched, and the persons or things to be seized. ' ' The court has held ^^ that this provision also renders unconstitutional the act of Congress which we have al- ready noted ^'^ which authorized a court to require a de- fendant in revenue cases to produce his papers under pen- alty of admitting the truth of the statements of the attor- ney for the government as to what those papers would prove if produced. But "subsequent cases treat the Fourth and Fifth Amendments as quite distinct, having different histories and performing different func- tions;" ^^ and hold that "the search and seizure clause of the Fourth Amendment was not intended to interfere 55 Hale V. Henkel (1906) 201 U. S. 43, 26 Sup. Ct. 370, 50 L. ed. 652; McAlister v. Henkel (1906) 201 U. S. 90, 26 Sup. Ct. 385, 50 L. ed. 671; Nelson v. United States (1906) 201 U. S. 92, 26 Sup. Ct. 358, 50 L. ed. 673. See also Wilson v. United States (1911) 221 U. S. 361, 384, 31 Sup. Ct. 538, 546, 55 L. ed. 771. Compare Proskauer, Corporate Privilege Against Self Incrimination, 11 Col. L. Rev. 445. 56 Boyd V. United States (1886) 116 U. S. 616, 6 Sup. Ct. 524, 29 L. ed. 746. 57 Sec. 212, supra. 58 Hale V. Henkel (1906) 201 U. S. 43, 72, 26 Sup. Ct. 370, 378, 50 L. ed. 652. See also Wigmore on Evidence, pp. 3126, 3127, vol. V, p. 230; Fitzgerald, John Wilkes, chapter 6. 368 LIMITATIONS UPON FEDERAL JUDICIAL POWER. with the power of courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of doc- umentary evidence. "^^ Other testimony. 214. The Sixth Amendment provides that ' ' In all crim- inal prosecutions, the accused shall enjoy the right . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." If witnesses for the prosecution have died, testimony given by those witnesses at a previous trial on the same issue is admissible;^" but their evidence is not admissible when their absence is due to negligence of officers of the gov- ernment ®^ but in a trial for receiving stolen property, the record of the conviction of the thief cannot be admit- ted in evidence to prove the theft.^^ Punishment. 215. The Eighth Amendment provides that ''Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This Amendment clearly applies only to state action; *' 50 Hale V. Henkel (1906) 201 U. S. 43, 73, 26 Sup. Ct. 370, 378, 50 L. ed. 652. See also Grant v. United States (1913) 227 U. S. 74, 33 Sup. Ct. 190, 57 L. ed. 423; Wlieeler v. United States (1913) 226 U. S. 478, 33 Sup. Ct. 158, 57 L. ed. 309; Wilson v. United States (1911) 221 U. S. 361, 31 Sup. Ct. 538, 55 L. ed. 771; and other cases cited in notes 54, 55, supra. eoMattox V. United States (1895) 156 U. S. 237, 15 Sup. Ct. 337, 39 L. ed. 409. 61 Motes V. United States (1900) 178 U. S. 458, 20 Sup. Ct. 993, 44 L. ed. 1150. 62Kirby v. United States (1899) 174 U. S. 47, 19 Sup. Ct. 574, 43 L. ed. 890. — On this Amendment in general see also Patterson, The United Statea and the States Under the Constitution, 2d ed., p. 254. 63 0'Neil V. Vermont (1892) 144 U. S. 323, 12 Sup. Ct. 693, 36 L. ed. 450. J DECISION OF CONSTITUTIONAL QUESTIONS. 369 but we have already seen^^ that the court has declared unconstitutional under the equal protection provision of the Fourteenth Amendment a statute which imposed upon railroads and railroad employees who should exact higher rates than were ordained by the state penalties which would be so large in the aggregate that the railroads and their employees would comply with the statutes and or- ders relating to rates rather than contest the validity of the rates in actions at law. A provision prohibiting excessive fines and cruel and unusual punishments also appears in the Philippine bill of rights, and under it the court has declared invalid a section of the penal code of the islands and a sentence pronounced under it which imposed upon an officer of the government for making false entries in public records as to payments of six hundred and twelve pesos a fine of four thousand pesos and cadena temporal for twelve years, with accessories including the carrying of chains, perpetual disqualification from holding public office and perpetual surveillance.^^ DECISION OF CONSTITUTIONAL QUESTIONS. Questions which may be brought before the court. 216. As the court has no power to declare a statute in- valid unless it clearly violates a provision of the Consti- tution,^'^ such questions as whether a statute violates na- tural justice or kindred principles may not properly be 64 Sec. 145, supra. esWeems v. United States (1910) 217 U. S. 349, 30 Sup. Ct. 544, 54 L. ed. 793. See 217 U. S. at 366, 367, 382, 30 Sup. Ct. at 548, 549, 555, 54 L. ed. at 798, 799, 805. Compare Schofield, Cruel and Unusual Punishment, 5 111. L. Rev. 321. 66 See sees. 94, supra, and 217, infra. 24 370 LIMITATIONS UPON FEDERAL JUDICIAL POWER. considered by the court.^'^ Moreover, it is an established principle that if a state court has decided that a state statute or the action of an organ of state government is in accord with the state constitution that decision cannot be reviewed by the Supreme Court.^^ The court also refuses to pass upon a constitutional question unless its solution is necessary for the decision of an actual case then before the court.^^ In determining the constitutionality of a statute the court considers only so much of the statute as applies in that particular case J*^ 67 See sees. 98-103, 113, supra. 68 Sec. 63, supra. 69 Hampton v. St. Louis, I. M. & S. Ry. Co. (1913) 227 U. S. 456, 468, 33 Sup. Ct. 263, 267, 57 L. ed. 596, and cases there cited; Grenada L. Co. V. Mississippi (1910) 217 U. S. 433, 30 Sup. Ct. 535, 54 L. ed. 826; Wood V. Chesborough (1913) 228 U. S. 672, 33 Sup. Ct. 706, 57 L. ed. 1018; Adams V. Russell (1913) 229 U. S. 353, 33 Sup. Ct. 846, 57 L. ed. 1224; authori- ties in note 75, infra; Thayer, The Origin and Scope of the American Doc- trine of Constitutional Law, 7 Harv. L. Rev. 135-137, reprinted in TTiayer, Legal Essays, 8-10; McClain, Constitutional Law in the United States, 19 et seq.; Willoughby on the Constitution, pp. 13, 14; Patterson, The United States and the States Under the Constitution, 2d ed., p. 228 ; Black, Consti- tutional Law, 3d ed., pp. 63, 65. In Chicago & G. T. Ry. Co. v. Wellman (1892) 143 U. S. 339, 345, 12 Sup. Ct. 400, 402, 30 L. ed. 176, the court said, "Whenever, in pursuance of an honest and actual antagonistic asser- tion of rights by one individual against another, there is presented a ques- tion involving the validity of any act of any legislature, state or federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act." The same question is discussed at much greater length in Muskrat v. United States (1911) 219 U. S. 346, 31 Sup. Ct. 250, 55 L. ed. 246. 70 Grenada L. Co. v. Mississippi (1910) 217 U. S. 433, 30 Sup. Ct. 535, 54 L. ed. 826; Southwestern Oil Co. v. Texas (1910) 217 U. S. 114, 30 Sup. Ct. 496, 54 L. ed. 688; United States v. Delaware & H. Co. (1909) 213 U. S. 366, 29 Sup. Ct. 527, 53 L. ed. 836. And see Chesapeake & O. Ry. Co. v. Conley (1913) 230 U. S. 513, 33 Sup. Ct. 985, 57 L. ed. 1597. DECISION OF CONSTITUTIONAL QUESTIONS. 371 11 the constitutional provision which is invoked was not intended primarily for the protection of the party before the court, the court will not inquire into the validity of the governmental action J ^ So also if it appears that the controversy in issue has been settled the case will be dis- missedJ^ And in a case coming from a state court the Su- preme Court will not pass upon a constitutional question unless it has been raised in the court below as required by the judiciary act.^^ We have already examined at sufficient length the ques- tion whether a party may estop itself from contesting the 71 Darnell v. Indiana (1912) 226 U. S. 390, 398, 33 Sup. Ct. 120, 57 L. ed. 267; Hampton v. St. Louis, I. M. & S. Ry. Co. (1913) 227 U. S. 456, 468, 33 Sup. Ct. 263, 267, 57 L. ed. 596; Interstate Com. Comn. v. Chi- cago, R. L & P. Ry. Co. (1910) 218 U. S. 88, 30 Sup. Ct. 651, 54 L. ed. 946; Citizens Nat. Bk. v. Kentucky (1910) 217 U. S. 443, 30 Sup. Ct. 532, 54 L. ed. 832; Grenada L. Co. v. Missisippi (1910) 217 U. S. 433, 30 Sup. Ct. 535, 54 L. ed. 826; Smith v. Indiana (1903) 191 U. S. 138, 24 Sup. Ct. 51, 48 L. ed. 125; Berea College v. Kentucky (1908) 211 U. S. 45, 29 Sup. Ct. 33, 53 L. ed. 81; United States v. Chandler-Dunbar Co. (1913) 229 U. S. 53, 73, 74, 33 Sup. Ct. 667, 676, 57 L. ed. 1063; Patterson, The United States and the States Under the Constitution, 2d ed., p. 228; Black, Con- stitutional Law, 3d ed., pp. 63, 65. 72 United States v. Evans (1909) 213 U. S. 297, 29 Sup. Ct. 507, 53 L. ed. 803; Fisher v. Baker (1906) 203 U. S. 174, 27 Sup. Ct. 135, 51 L. ed. 142; American B. Co. v. Kansas (1904) 193 U. S. 49, 23 Sup. Ct. 394, 48 L. ed. 613. See also Muskrat v. United States (1911) 219 U. S. 346, 31 Sup. Ct. 250, 55 L. ed. 246. Where, however, any liability remains the question cannot be treated as a moot one: Southern P. Co. v. Interstate Com. Comn. (1911) 219 U. S. 433, 31 Sup. Ct. 288, 55 L. ed. 283. See also Southern P. T. Co. v. Interstate Com. Comn. (1911) 219 U. S. 498, 31 Sup. Ct. 279, 55 L. ed. 310. 73 Act Mar. 3, 1911, sec. 237. See In the Matter of Spencer (1913) 228 U. S. 652, 33 Sup. Ct. 709, 57 L. ed. 1010; Thomas v. Iowa (1908) 209 U. S. 258, 28 Sup. Ct. 487, 52 L. ed. 782; Walker v. Sauvinet (1875) 92 U. S. 90, 93, 23 L. ed. 678; 42 Am. L. Rev. 645-647; and also Mackay v. Uinta D. Co. (1913) 229 U. S. 173, 33 Sup. Ct. 638, 57 L. ed. 1138; Dill v. Ebey (1913) 229 U. S. 199, 33 Sup. Ct. 620, 57 L. ed. 1148. Compare Weems v. United States (1910) 217 U. S. 349, 3G2, 30 Sup. Ct. 544, 547, 54 L. ed. 793. 372 LIMITATIONS UPON FEDERAL JUDICIAL POWER. validity of a statute under which that party has actedJ^ Rules of construction. 217. In a number of cases the court has taken the posi- tion that ''Every possible presumption is in favor of the validity of a statute, and this continues until the contrary- is shown beyond a rational doubt." "^ And this position is unquestionably sound. It is true that in recent years with increasing frequency the court has declared legisla- tion unconstitutional without showing clearly the connec- tion between its conclusion and the words of the Constitu- tion upon which that conclusion was said to be based.''^ It is true that state and lower federal courts have de- clared legislation unconstitutional with even greater free- dom. But such a tendency cannot continue. It is causing a widespread distrust of the courts, and that distrust is 74 Sec. 22, supra. Consider also Los Angeles v. Los Angeles C. W. Co. (1900) 177 U. S. 558, 20 Sup. Ct. 736, 44 L. ed. 886; Covington & L. T. R. Co. V. Sandford (1896) 164 U. S. 578, 17 Sup. Ct. 198, 41 L. ed. 560; Allen V. St. Louis, I. M. & S. Ry. Co. (1913) 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. ed. 1625; Missouri Rate Cases— Knott v. Chicago, B. &, Q. R. Co. (1913) 230 U. S. 474, 33 Sup. Ct. 975, 57 L. ed. 1571. 75 Sinking Fund Cases (1878) 99 U. S. 700, 718, 25 L. ed. 496. See also authorities cited in sec. 94, supra. — Where two interpretations of a statute are admissible, under one of which the statute is constitutional and under the other of which it is unconstitutional, the former interpretation of the statute must be adopted: The Abby Dodge (1912) 223 U. S. 166, 175, 32 Sup. Ct. 310, 312, 56 L. ed. 390; United States v. Delaware & H. Co. (1909) 213 U. S. 366, 407, 29 Sup. Ct. 527, 535, 53 L. ed. 836; Harriman v. Inter- state Com. Comn. (1908) 211 U. S. 407, 29 Sup. Ct. 115, 53 L. ed. 253; Knights T. L Co. v. Jarman (1902) 187 U. S. 197, 23 Sup. Ct. 108, 47 L. ed. 139. Compare James v. Bowman (1903) 190 U. S. 127, 23 Sup. Ct. 678, 47 L. ed. 979; and the language of White, J., in Employers' Liability Cases— Howard v. Illinois C. R. Co. (1908) 207 U. S. 463, 501, 28 Sup. Ct. 141, 146, 52 L. ed. 297. The court follows the interpretation of a state statute which has been adopted by the state court: Portland Ry., L. & P. Co. V. Railroad Comn. of Oregon (1913) 229 U. S. 397, 33 Sup. Ct. 827, 57 L. ed. 1248; and see note 47 in Chapter 3, supra. 76 See especially Chapters 3 and 4, supra. DECISION OF CONSTITUTIONAL QUESTIONS. 373 growing; '^'^ so that unless the courts when they overturn the will of the majority conform to the rule which they have themselves recognized ^^ and show clearly that such decisions are required by the Constitution itself, that ma- jority will before long take pains to secure the observ- ance by the courts of the constitutional limits to judicial authority.^ ^ Where technical terms are used in the Constitution it is the duty of the court to interpret those terms in ac- cordance with their technical meanings.^" Thus, where a term of the common law is used it is to be given the same meaning as it had at common law.^^ The history of a provision ^^ and its context ^^ often go far towards showing its meaning; and the fact that under a particular interpretation another clause of the Constitu- tion would be superfluous certainly tends to show that that interpretation is incorrect,^^ although it is not con- clusive upon that point.^^ The antecedent history of the country and the state of 77 See, for example, in Chapter 4, notes 58, 118, and ends of notes 80, 207, 212; in Chapter 3, notes 61, 62, 73; article 21 Yale L. J. 117; language of Harlan, J., reported in 68 Legal Intelligencer, p. 318, col. 4. 78 See note 75, supra. 79 See note 116 in Chapter 4, supra. 80 The term "admiralty" has, however, been given a broader meaning than it had before the adoption of the Federal Constitution: see Patterson, The United States and the States Under the Constitution, 2d ed., pp. 208, 209. 81 See Schick v. United States (1904) 195 U. S. 65, 69, 24 Sup. Ct. 826, 827, 49 L. ed. 99, where the authorities are collected, and also South Caro- lina V. United States (1905) 199 U. S. 437, 449, 450, 26 Sup. Ct. 110, 111, 112, 50 L. ed. 261. Compare sec. 83, supra. 82 See note 86, infra; and sees. 75-81, 128, 131, supra. Compare, e. g., Wigmore, Evidence, p. 3126, V, 230. 83 See sees. 127, 2, 74, supra. 84 See sec. 126, supra. Compare sec. 146, supra. 85 See sec. 88, supra. 374 LIMITATIONS UPON FEDERAL JUDICIAL POWER. public affairs at the time of the adoption of the Constitu- tion must be considered, in order that the old law, the mischief and the remedy may have their relative weight.^^ "No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them."^'^ In case of doubt ^^ as to the meaning of a provision, a contemporaneous legislative exposition acquiesced in for a long term of years fixes the construction.^^ So also, while the Federalist is not of binding authority, and was not in fact so regarded in reaching the unfortunate de- cision in Chisholm v. Georgia,''" "The opinion of the Fed- eralist has always been considered as of great author- ity." ^^ 86Prigg V. Pennsylvania (1842) 16 Pet. 539, 611, 612, 10 L. ed. 1060; Patterson, The United States and the States Under the Constitution, 2d ed., p. 234; Maxwell v. Dow (1900) 176 U. S. 581, 602, 20 Sup. Ct. 448, 494, 456, 44 L. ed. 597; Rhode Island v. Massachusetts (1838) 12 Pet. 657, 9 L. ed. 1233. See also sec. 74, supra; and sec. 55, note, supra. 87Prigg V. Pennsylvania (1842) 16 Pet. 539, 612, 10 L. ed. 1060. 88 On this limitation to the statement see authorities collected in Fair- bank V. United States (1901) 181 U. S. 283, 308 et seq., 21 Sup. Ct. 648, 658 et seq., 45 L. ed. 862. 89 See authorities collected in Fairbank v. United States, cited in note 88, supra; language of Brown, J., in Downes v. Bidwell (1901) 182 U. S. 244, 249, 21 Sup. Ct. 770, 772, 45 L. ed. 1088; and also Degge v. Hitchcock (1913) 229 U. S. 162, 33 Sup. Ct. 639, 57 L. ed. 1135. 90 (1793) 2 Dall. 419, 1 L. ed. 440. See sec. 204, supra. 91 Cohens v. Virginia (1821) 6 Wheat. 264, 418, 5 L. ed. 257. On the debates in the Convention of 1787 see also United States v. Union P. R. Co. (1875) 91 U. S. 72, 79, 23 L. ed. 224; McCulloch v. Maryland (1819) 4 Wheat. 316, 404, 4 L. ed. 579; Maxwell v. Dow (1900) 176 U. S. 581, 601, 602, 20 Sup. Ct. 448, 494, 456, 44 L. ed. 597; Patterson, The United States and the States Under the Constitution, 2d ed., pp. 236, 237; Brown, J., in Downes v. Bidwell (1901) 182 U. S. 244, 254, 21 Sup. Ct. 770, 774, 45 L. ed. 1088. And see Pennsylvania R. Co. v. International C. M. Co. (1913) 230 T\ S. 184, 33 Sup. Ct. 893, 57 L. ed. 1446; Omaha & C. B. S. Ry. Co. v. l.:terstate Com. Comn. (1913) 230 U. S. 324, 33 Sup. Ct. 890, 57 L. ed. 1501. DECISION OF CONSTITUTIONAL QUESTIONS. 375 The court, however, does not always interpret strin- gently the limitations upon state action which are con- tained in the Federal Constitution. It recognizes the fact that it cannot carry out a constitution with mathematical nicety to logical extremes; ^^ and it does not make ex- treme interpretations in order to set aside state action which does not appear to the court to be unreasonable. Partial unconstitutionality. 218. Even where a statute is in part unconstitutional, if such part may be eliminated and yet leave a statute so far complete that the court may believe that the legisla- ture would have enacted the statute even without the part which is unconstitutional, that remainder of the statute may be enforced.^^ But where the unconstitutional fea- tures of the statute are so far connected with its general scope that without them the court cannot give effect to the real purpose for which the statute was enacted the statute is unenforceable.^^ The court cannot reshape a 92 See sees. 110, 139, note, 140, note, 101, supra. 93 Southern P. Co. v. Campbell (1913) 230 U. S. 537, 33 Sup. Ct. 1027, 57 L. ed. 1610; Kentucky U. Co. v. Kentucky (1911) 219 U. S. 140, 31 Sup. Ct. 171, 55 L. ed. 82; Berea College v. Kentucky (1908) 211 U. S. 45, 29 Sup. Ct. 33, 53 L. ed. 81; Pollock v. Farmers' L. & T. Co. (1895) 158 U. S. 601, 15 Sup. Ct. 912, 39 L. ed. 1108; Presser v. Illinois (1886) 116 U. S. 252, 6 Sup. Ct. 580, 29 L. ed. 615; Packet Co. v. Keokuk (1877) 95 U. S. 80, 24 L. ed. 377. See also Minnesota Rate Cases — Simpson t. Shepard (1913) 230 U. S. 352, 380, 381, 33 Sup. Ct. 729, 732, 733, 57 L. ed. 1511. 94 International T. Co. v. Pigg (1910) 217 U. S. 91, 30 Sup. Ct. 481, 54 L. ed. 678; Employers' Liability Cases — Howard v. Illinois C. R. Co. (1908) 207 U. S. 463, 28 Sup. Ct. 141, 52 L. ed. 297 ; Pollock v. Farmers' L. & T. Co. (1895) 158 U. S. 601, 15 Sup. Ct. 912, 39 L. ed. 1108; Baldwin v. Franks (1887) 120 U. S. 678, 7 Sup. Ct. 656, 763, 30 L. ed. 766; Spraigue V. Thompson (1886) 118 U. S. 90, 6 Sup. Ct. 988, 30 L. ed. 115; Virginia Coupon Cases— Poindexter v. Greenhow (1885) 114 U. S. 270, 5 Sup. Ct. 903, 29 L. ed. 185; Allen v. Louisiana (1880) 103 U. S. 80, 26 L. ed. 318; Trade Mark Cases (1879) 100 U. S. 82, 25 L. ed. 550; Black, Constitutional Law, 3d ed., p. 73. 376 LIMITATIONS UPON FEDERAL JUDICIAL POWER. statute which is unconstitutional into one which is con- stitutional simply because the legislature might constitu- tionally have dealt with some of the subjects which are in- cluded in that statute.*^ There are also a number of other cases, to which we have already referred,^^ in which the court has decided that a statute which limited the rate of charges could not, because of economic conditions, be enforced at one time, although the statute might later, through a change in economic conditions, become enforceable, or in which the court has sustained the enforcement of a statute with- out prejudice to the right of the complainant to reopen the case if experience should prove the operation of the statute to be confiscatory.^^ The mere fact that a statute itself is constitutional does not oust the court of jurisdic- tion to restrain unconstitutional applications of that statute.^^ And even where a statute may be properly en- 95 Butts V. Merchants & M. T. Co. (1913) 230 U. S. 126, 33 Sup. Ct. 964, 57 L. ed. 1422; Meyer v. Wells, Fargo & Co. (1912) 223 U. S. 298, 32 Sup. Ct. 218, 56 L. ed. 445; James v. Bowman (1903) 190 U. S. '127, 23 Sup. Ct. 678, 47 L. ed. 979; Trade Mark Cases (1879) 100 U. S. 82, 25 L. ed. 550; United States v. Reese (1875) 92 U. S. 214, 23 L. ed. 563. See also Siler V. Louisville & N. R. Co. (1909) 213 U. S. 175, 29 Sup. Ct. 451, 53 L. ed. 753. Compare El Paso & N. E. Ry. Co. v. Gutierrez (1909) 215 U. S. 87, 30 Sup. Ct. 21, 54 L. ed. 106, with Employers' Liability Cases — Howard V. Illinois C. R. Co. (1908) 207 U. S. 463, 28 Sup. Ct. 141, 52 L. ed. 497. 96 Sec. 179, supra. 97 See Missouri Rate Cases— Knott v. Chicago, B. & Q. R. Co. (1913) 230 U. S. 474, 508, 33 Sup. Ct. 975, 983, 57 L. ed. 1571; Minnesota Rate Cases- Simpson V. Shepard (1913) 230 U. S. 352, 473, 33 Sup. Ct. 729, 769, 57 L. ed. 1511; Northern P. Ry. Co. v. North Dakota (1910) 216 U. S. 579, 30 Sup. Ct. 423, 54 L. ed. 624; Willcox v. Consolidated G. Co. (1909) 212 U. S. 19, 29 Sup. Ct. 192, 53 L. ed. 382; Knoxville v. Knoxville W. Co. (1909) 212 U. S. 1, 29 Sup. Ct. 148, 53 L. ed. 371; and also Allen v. St. Louis, I. M. & S. Ry. Co. (1913) 230 U. S. 553, 33 Sup. Ct. 1030, 57 L. ed. 1625. 98 Reagan v. Farmers' L. & T. Co. (1894) 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. ed. 1014. DECISION OF CONSTITUTIONAL QUESTIONS. 377 forced against some roads it may at the same time be unenforceable as against other roads,^^ 99 See, e. g., Missouri Rate Cases — Knott v. Chicago, B. & Q. R. Co. (1913) 230 U. S. 474, 33 Sup. Ct. 975, 57 L. ed. 1571; Minnesota Rate Cases- Simpson V. Shepard (1913) 230 U. S. 352, 33 Sup. Ct. 729, 57 L. ed. 1511; 8t. Louis & S. F. R. Co. v. Hadley (1909) 168 Fed. 317. TABLE OF CASES. References are to Pages. A. Abbott V. Beddingfield, 125 N. C. 256 53, 187, 188 Abby Dodge, The, 223 U. S. 166 2, 372 Abilene C. O. Ck). v. Texas & P. Ry. Co., 38 Tex. Civ. App. 366 56 Abilene Nat. Bk. v. Dolley, 228 U. S. 1 331 Adair v. United States, 208 U. S. 161 .. .115, 121, 126, 139, 204, 208, 245 Adams v. Russell, 229 U. S. 353 370 Adams Ex. Co. v. Croninger, 226 U. S. 491 13 Adams Ex, Co. v. Kentucky, 214 U. S. 218 217 Adams Ex. Co. v. Kentucky, 206 U. S. 129 25 Adams Ex. Co. v. Ohio, 165 U. S. 194 134, 179 Addyston P. & S. Co. v. United States, 175 U. S. 211 16, 245 Advances in Rates, In re— Eastern Case, 20 I. C. C. 243 276, 299 Advances in Rates, In re— Western Case, 20 I. C. C. 307 277, 320 Alabama & V. Ry. Co. v. Mississippi R. Comn., 203 U. S. 496 . .226, 264, 310 Alcorn v. Hamer, 38 Miss. 652 89 Allegheny v. Millville, E. & S. S. Ry. Co., 159 Pa. 411 39 Allen v. Georgia, 166 U. S. 138 200 Allen v. Louisiana, 103 U. S. 80 375 Allen V. Pullman's P. C. Co., 191 U. S. 171 16 Allen V. Riley, 203 U. S. 347 30, 80, 218 Allen V. St. Louis, L M. & S. Ry. Co., 230 U. S. 553 . . 188, 293, 304, 372, 376 Allen & Lewis v. Oregon R. & N. Co., 106 Fed. 265 9 Allgeyer v. Louisiana, 165 U. S. 578 122, 139, 196, 245, 246 Allnutt V. Inglis, 12 East, 527 66 Aluminum Co. v. Ramsey, 222 U. S. 251 256 American B. Co. v. Kansas, 193 U. S. 49 371 American B. Co. v. United F. Co., 213 U. S. 347 2, 206 American Ex. Co. v. Mullins, 212 U. S. 311 146 American Ex. Co. v. United States, 212 U. S. 522 8 American L. Co. v. Zeiss, 219 U. S. 47 137, 138, 199, 204, 209, 210 American P. Co. v. Fisher, 166 U. S. 464 363 American S. R. Co. v. Delaware, L. & W. Ry. Co., 200 Fed. 652 30 American S. & R. Co. v. Colorado, 204 U. S. 103 39, 330, 334 American S. & W. Co. v. Speed, 192 U. S. 500 4 Ames V. Union P. Ry. Co., 64 Fed. 165 263, 293 Anderson v. Levely, 58 Md. 192 61 Anderson v. Manchester F. A. Co., 59 Minn. 182 63 Angle V. Chicago, St. P., M. & O. Ry. Co., 151 U. S. 1 179 379 380 TABLE OF CASES. RefEBENCES ABE TO PaGES. Annan v. Walsh, 143 U. S. 517 32 Ansley v. Ainsworth, 4 Ind. Terr. 308 51, 89 Appeal of City of Pittsburgh, 115 Pa. 4 39 Appleby v. Buffalo, 221 U. S. 524 145, 229 Arbuckle v. Blackburn, 191 U. S. 405 123 Arbuckle v. Pflaeging, 20 Wyo., 123 Pac. 918 83 Arkadelphia E. L. Co., v. Arkadelphia, 99 Ark. 178 315 Arkansas Railroad Rates, In re, 168 Fed. 720 281, 293, 304 Arkansas Railroad Rates, In re, 163 Fed. 141 316 Arkansas Rate Cases, In re, 187 Fed. 290 . .278, 289, 293, 302, 303, 304, 317 Armour P. Co. v. United States, 209 U. S. 56 9, 26, 29, 30, 190, 344, 350, 352, 362 Armour P, Co. v. United States, 153 Fed. 1 350 Arms V. Ayer, 192 111. 601 83 Arndt v. Griggs, 134 U. S. 316 196 Arnett v. State, 168 Ind. 180 96 Arrowsmith v. Harmoning, 118 U. S. 194 130, 145 Arwine v. Board of Medical Examrs., 151 Cal. 499 82 Asbell V. Kansas, 209 U. S. 251 218 Ashley v. Ryan, 153 U. S. 628 205 Atchison, T. & S. F. R. Co. v. Denver & N. O. R. Co., 110 U. S. 667 105 Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96 141, 258 Atchison, T. & S. F. Ry. Co. v. O'Connor, 223 U. S. 280 357 Atchison, T. & S. F, Ry. Co. v. Sowers, 213 U. S. 55 206 Atchison, T. & S. F. Ry. Co. v. Sullivan, 173 Fed. 456 287 Atchison, T. & S. F. Ry. Co. v. United States, 203 Fed. 56 324, 326 Atkin V. Kansas, 191 U. S. 207 190 Atlantic E. Co. v. Wilmington & W. R. Co., Ill N. C. 463 ... 47, 61, 66 Atlantic C. L. R. Co. v. Florida, 203 U. S. 256 . .21, 127, 261, 295, 309, 324 Atlantic C. L. R. Co. v. Macon G. Co., 166 Fed. 206 110 Atlantic C. L. R. Co. v. Mazursky, 216 U. S. 122 13 Atlantic C. L. R. Co. v. North Carolina Corp. Comn., 206 U. S. 1 59, 81, 145, 207, 209, 210, 325, 326 Atlantic C. L. R. Co. v. Riverside Mills, 219 U. S. 186 54, 56, 245 Atlantic E. Co. v. Wilmington & W. R. Co., Ill N. C. 463 ... .47, 61, 66 Atlantic & P. T. Co. v. Philadelphia, 190 U. S. 160 5, 33 Augusta S. R. Co. v. Wrightsville & T. R. Co., 74 Fed. 522 26 Austin V. Tennessee, 179 U. S. 343 24, 30 Ayers, In re, 123 U. S. 443 357 Ayer & Lord T. Co. v. Kentucky, 202 U. S. 409 205 B. Bachtel v. Wilson, 204 U. S. 36 257, 259 Back R. N. T. Co. v. Romberg, 96 Md. 430 230, 314 Backus v. Fort S. U. D. Co., 169 U. S. 557 123, 127, 134, 145, 179, 199, 229, 230, 364 TABLE OF CASES. 381 KeFEBENCES ABE TO PaGES. Bacon v. Illinois, 227 U. S. 504 23, 24, 206 Bacon v. Robertson, 18 How, 480 346 Bacon v. Texas, 163 U. S. 207 334 Bacon v. Walker, 204 U. S. 311 141, 177, 178, 217, 218, 239, 328 Bailey v. Alabama, 219 U. S. 219 210 Bailey v. State, 161 Ala. 75 61 Baker v. Norwood, 74 Fed. 997 230, 238 Baldwin v. Franks, 120 U. S. 678 375 Ball V. Rutland R. Co., 93 Fed. 513 339 Ballard v. Hunter, 204 U. S. 241 132, 133, 137, 140, 145, 200 Ballman v. Fagan, 200 U. S. 186 365 Baltimore T. Co. v. Baltimore B. R. Co., 151 U. S. 137 130, 145 Baltimore & O. R. Co, v. Interstate Com. Comn., 221 U. S. 612 17, 45, 245, 366 Baltimore & 0. R. Co. v. Railroad Comn., 196 Fed. 690 82 Baltimore & 0. R. Co, v. United States, 215 U. S. 481 12, 110 Bank of Columbia v, Okely, 4 Wheat. 235 139, 184, 211, 363 Bank of the U, S, v. Halstead, 10 Wheat. 51 61, 93 Banks v. State, 124 Ga, 15 61 Barbier v, Connolly, 113 U, S, 27 210, 258, 259 Barney v. New York, 193 U. S. 430 123, 124 Barrett v. Indiana, 229 U. S. 26 56, 107, 210, 260 Barrington v. Missouri, 205 U. S. 483 115, 133 Barron v. Baltimore, 7 Pet. 243 236 Barrow S. Co. v. Kane, 170 U. S. 100 41 Barto V. Himrod, 8 N. Y. 483 63, 89 Barton v. Barbour, 104 U. S. 126 363 Bates & Gould Co. v. Payne, 194 U. S. 106 113 Bauman v. Ross, 167 U. S. 548 58, 136, 313 Beck, Ex parte, 162 Cal. 701 89 Beer, In re, 17 N. D. 184 365 Behr, Meyer & Co. v. Campbell & Gu Tauco, 205 U, S, 403 364 Belknap v, Schild, 161 U, S. 10 356, 357 Bellingbam B. & B, C. R. Co. v. New Whatcom, 172 U. S. 314 137 Bement v. National H. Co., 186 U. S. 70 364 Berea College v. Kentucky, 211 U. S. 45 121, 134, 245, 345, 371, 375 Bergemann v. Backer, 157 U. S. 655 145 Berryman v. Whitman College, 222 U. S. 334 337, 341 Bier V. McGehee, 148 U, S. 137 331, 340 Bitterman v. Louisville & N. R. Co., 207 U, S. 205 108 Blackstone v. Miller, 188 U. S. 189 24, 331 Blair v. Chicago, 201 U. S. 400 337 Blais V. Franklin, 31 R. I. 95 95 Blake v. McClung, 172 U. S. 239 41 Block V. Chicago, 239 111, 251 83 382 TABLE OF CASES. ReFEBENCES ABE TO PAGES. Blount V. Windley, 95 U. S. 173 334 Blue V. Beach, 155 Ind. 121 83 Blue V. Smith, 69 W. Va. 761 95 Board of Comrs. v. Gwin, 136 Ind. 53 49 Board of Comrs. v. McGregor, 171 Ind. 634 49, 61 Board of Comrs. v. Stout, 136 Ind. 53 49 Board of Harbor Comrs. v. Excelsior R. Co., 88 Cal. 491 63, 96 Board of R. Comrs. v. Oregon Ry. & Nav. Co., 17 Ore. 65 62 Board of R. Comrs. v. Symns Grocer Co., 53 Kan. 207 228, 271 Boise A. H. & C. W. Co. v. Boise City, 230 U. S. 84 330 Boise A. H. & C. W. Co. v. Boise City, 213 U. S. 276 265, 335 Boise City I. & L. Co. v. Clark, 131 Fed. 415 281, 316, 325 Bonham Case, 8 Coke, 114a 151 Bonner v. Gorman, 213 U. S. 86 145 Booth V. Illinois, 184 U. S. 425 245 Boston Chamber of Commerce v. Boston, 217 U. S. 189 133, 134, 324 Boston & M. R. v. Gokey, 210 U. S. 155 94 Boyce, Ex parte, 27 Nev. 299 244 Boyd V. United States, 116 U. S. 616 365, 367 Boyd, Ex parte, 105 U. S. 647 93 Bradley v. Lightcap, 195 U. S. 1 122 Bradley v. Richmond, 227 U. S. 477 134, 138, 261 Bradshaw v. Lankford, 73 Md. 428 50 Bradshaw v. Rogers, 20 Johns. 103 235 Bradwell v. State, 16 Wall. 130 249 Brady v. Carteret R. Co., 70 N. J. E. 748 61 Brady v. Mattern, 125 Iowa, 158 95 Brantley v. Georgia, 217 U. S. 284 360 Brass v. North Dakota, 153 U. S. 391 33, 262 Brenke v. Borough of Belle Plaine, 105 Minn. 84 63 Brig Aurora v. United States, 7 Cranch 382 86 Briggs V. Lightboats, 93 Mass. 157 353 Brinkmeier v. Missouri P. Ry. Co., 224 U. S. 268 45, 133 Bristol V. Bristol & W. Waterworks, 23 R. I. 274 286 Brodbine v. Revere, 182 Mass. 598 51, 78 Brodnax v. Missouri, 219 U. S. 285 190, 209, 210, 212, 245 Brooklyn C. R. Co. v. New York, see People v. New Y. S. B. of T. Comrs. Brooklyn H. R. Co. v. Brooklyn C. R. Co., 109 N. Y. Supp. 31 303 Brooklyn U. G. Co. v. New York, 111 N. Y. App. Div. 70 271 Brown v. Fletcher's Estate, 210 U. S. 82 206 Brown v. Houston, 114 U, S. 622 13 Brown v. Maryland, 12 Wheat. 419 144 Brown v. New Jersey, 175 U. S. 172 115, 132, 200 Brown v. Smart, 145 U. S. 454 331 Brown v. Turner, 70 N. C. 93 50 Brown v. Walker, 161 U. S. 591 365 TABLE OF CASES. 383 ReFEEENCES ABE TO PAGES. Brown-Forman Co. v. Kentucky, 217 U. S. 563 258, 259 Brownsfield v. South Carolina, 189 U. S. 426 255 Brummitt v. Ogden W. W. Co., 33 Utah, 285 341 Brunswick & T. W. Dist. v. Maine W. Co., 99 Me. 371 275, 276, 279, 280, 281, 283, 310, 312, 317 Bryan v. Voss, 143 Ky. 422 51 Brymer v. Butler Water Co., 179 Pa. 231 109 Buck V. Beach, 206 U. S. 392 122, 139, 205 Budd V. New York, 143 U. S. 517 32, 127, 141, 226, 231, 262, 263 Buffalo E. S. R. Co. v. Buffalo S. R. Co., Ill N. Y. 132 345 Bull V. Read, 13 Gratt. (Va.) 78 89 Burlington, C. R. & N. Ry. Co. v. Dey, 82 Iowa, 312 66, 128 Burt V. Smith, 203 U. S. 129 132 Burton v. Dupree, 19 Tex. Civ. App. 275 50 Burton v. United States, 202 U. S. 344 54, 359 Bush V. Kentucky, 107 U. S. 110 255 Butchers' U. Co. v. Crescent C. Co., Ill U. S. 746 187, 195, 196, 199, 202, 247, 248 Butte C. W. Co. V. Baker, 196 U. S. 119 79 Buttfield V. Stranahan, 192 U. S. 470 245 Butts V. Merchants & M. T. Co., 230 U. S. 126 376 Cable V. United S. L. I. Co., 191 U. S. 288 40 Calder v. Bull, 3 Dall. 386 48, 191, 196, 197, 201 Calder v. Michigan, 218 U. S. 591 179. 346 Caldwell v. Texas, 137 U. S. 692 178, 211 California R. Co. v. Sanitary R. Works, 199 U. S. 306 179, 209, 210, 212, 216, 229 Callan v. Wilson, 127 U. S. 540 362 Calvert v. Carstarphen, 133 N. C. 25 61 Camden I. Ry. Co. v. Catlettsburg, 129 Fed. 421 356 Campbell v. California. 200 U. S. 87 204, 217, 260 Campbell v. Jackman Bros., 140 Iowa, 475 198 Capital C. D. Co. v. Ohio, 183 U. S. 238 115 Capital C. G. Co. v. Des Moines, 72 Fed. 829 277, 279, 338 Capital C. G. Co. v. Des Moines, 72 Fed. 818 109, 129 Capital T. Co. v. Hof, 174 U. S, 1 364 Captain Streater, The Case of, 5 How. St. Trials, 365 52, 166 Carfer v. Caldwell, 200 U. S. 293 48 Cargill Co. v. Minnesota, 180 U. S. 452 133, 245 Carroll v. Greenwich Ins. Co., 199 U. S. 401 . . 37, 116, 121, 178, 199, 257 Carroll v. Wright, 131 Ga. 728 50 Carstairs v. Cochran, 193 U. S. 10 204 Carter v. Texas, 177 U. S. 442 123, 255 384 TABLE OF CASES. ReFEBENCES ABE TO PAGES. Gary v. Curtis, 3 How. 236 213 Cary v. Mine & S. S. Co., 53 Colo. 556 61 Case of Captain Streater, The, 5 How. St. Trials 365 52, 166 Castillo V. McConnico, 168 U. S. 674 133 Cates V. Allen, 149 U. S. 451 363 Cedar Rapids G. L. Co. v. Cedar Rapids, 223 U. S. 655 262, 286, 315, 337, 364 Cedar Rapids G. L. Co. v. Cedar Rapids, 144 Iowa, 426 275, 279, 280, 282, 283, 285, 286, 303, 315, 320 Cedar Rapids W. Co. v. Cedar Rapids, 118 Iowa, 234 303, 315 Central of Ga. Ry. Co. v. Railroad Comn., 161 Fed. 925 358 Centralia v. Smith, 103 Mo. App. 438 96 Central I. W. v. Pennsylvania R. Co., 17 Pa. Co. Ct. 651 108 Central L. Co. v. Laidley, 159 U. S. 103 145, 334 Central L. Co. v. South Dakota, 226 U. S. 157 60, 257, 258, 259 Central of Ga. Ry. Co. v. McLendon, 157 Fed. 961 309, 315 Central of Ga. Ry. Co. v. R. Comn. of Ala., 161 Fed. 925 63, 64, 70, 84, 89, 95, 96, 311, 312, 318 Central of Ga. Ry. Co. v. Wright, 207 U. S. 127 122, 123, 137 Central P., N. & E. R. Co. v. Willcox, 194 N. Y. 383 59, 111 Central R. Co. v. Jersey City, 209 U. S. 473 205 Champion v. Ames, 188 U. S. 321 54, 158, 190, 213, 245 Chanler v. Kelsey, 205 U. S. 466 134 Chapin v. Fye, 179 U. S. 127 115 Chapman, In re, 166 U. S. 661 49 Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386 264 Chesapeake & O. Ry. Co. v. Conley, 230 U. S. 513 ... 262, 263, 266, 370 Chesapeake & O. Ry. Co. v. Kentucky, 179 U. S. 388 16 Chesapeake & P. T. Co v. Manning, 186 U. S. 238 122, 127, 129, 135, 232, 347 Chicago V. Sheldon, 9 Wall. 50 333 Chicago V. Sturges, 222 U. S. 313 134 Chicago, B. & Q. R. Co. v. Attorney-General, Fed. Cas. No. 2666 263 Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 . . 123, 127, 138, 155, 196, 229, 235, 239, 240, 241, 364 Chicago, B. & Q. R. Co. v. Cram, 228 U. S. 70 331 Chicago, B. & Q. R. Co. v. Dey, 38 Fed. 656 315 Chicago, B. & Q. R. Co. v. Hall, 229 U. S. 511 40, 41 Chicago, B. & Q. R. Co. v. Iowa, 94 U. S. 155 .... 75, 127, 263, 338, 344 Chicago, B. & Q. R. Co, v. Jones, 149 111. 361 66, 97 Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549 190, 209, 245 Chicago, B. & Q. Ry. Co. v. Babcock, 204 U. S. 585 179, 180, 225, 232, 290 Cliicago, B. & Q. Ry. Co. v. People, 200 U. S. 561 122, 139, 196, 209, 210, 215, 216, 218, 229, 236, 240, 241 Chicago, B. & Q. Ry. Co. v. United States, 220 U. S. 559 187 TABLE OF CASES. 385 References are to Pages. Chicago C. Ry. Co. v. Chicago, 142 Fed. 844 316, 325 Chicago D. & C. Co. v. Fraley, 228 U. S. 680 258, 260 Chicago G. W. Ry. Co. v. Minnesota, 216 U. S. 234 339 Chicago, I. & L. Ry. Co. v. Railroad Comn., 175 Ind. 630 . . 65, 111, 112 Chicago, I. & L. Ry. Co. v. Railroad Comn., 38 Ind. App. 439 . . 65, 70 Chicago, I. & L. Ry. Co. v. United States, 219 U. S. 486 8, 11, 14, 40 Chicago J. Ry. Co. v. King, 222 U. S. 222 45 Chicago L. I. Co. v. Needles, 113 U. S. 574 346 Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418 57, 72, 123, 128, 136, 226, 227, 230, 231, 232, 242, 256, 324, 338 Chicago, M. & St. P. Ry. Co. v. Smith, 110 Fed. 473 307, 308 Chicago, M. & St. P. Ry. Co. v. Tompkins, 176 U. S. 167 58, 75, 123, 127, 128, 139, 191, 230, 233, 262, 293, 302, 304, 308 Chicago, M, & St. P. Ry. Co. v. Tompkins, 90 Fed. 363 75, 109 Chicago, R. I. & P. Ry. Co. v. Arkansas, 219 U. S. 453 ... 210, 217, 262 Chicago, R. I. & P. Ry. Co. v. Hardwick F. E. Co., 226 U. S. 446 ... 15 Chicago, R. I. & P. Ry. Co. v. Ludwig, 156 Fed. 152 41 Chicago, R. I. & P. Ry. Co. v. Zernecke, 183 U. S. 582 39 Chicago, St. L. & P. R. Co. v. Wolcott, 141 Ind. 267 14 Chicago, St. P., M. & O. Ry. Co. v. Becker, 35 Fed. 883 326 Chicago U. T, Co. v. Chicago, 199 111. 579 321 Chicago U. T. Co. v. Chicago, 199 111. 484 309, 339 Chicago & A. R. Co. v. Kirby, 225 U. S. 155 30 Chicago & G. T. Ry Co. v. Wellman, 143 U. S. 339 127, 232, 303, 309, 370 Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866 65, 66, 68, 69, 74, 303, 307, 312, 315, 323, 324 Chinese Exclusion Case, The, 130 U. S, 581 54, 180 Chin Yow v. United States, 208 U. S. 8 144, 145 Chisholm v. Georgia, 2 Dall. 419 354, 356, 374 Choate v. Trapp, 224 U. S. 665 122, 123, 126, 139 Chrisman v. Miller, 197 U. S. 313 364 C. H. Venner Co. v. Urbana Waterworks, 174 Fed. 348 285 Cincinnati, H. & D. Ry. Co. v. Interstate Com. Comn., 206 U. S. 142 .. . 113 Cincinnati, I. & W. Ry. Co. v. Connersville, 218 U. S. 336 115, 218 Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Com. Comn., 162 U. S. 184 9, 15, 26 Cincinnati, VV. & Z. R. Co. v. Comrs., 1 Ohio St. 77 89, 90 Citizens' Nat. Bk. v. Kentucky, 217 U. S. 443 371 Citizens' T. Co. v. Fuller, 229 U. S, 322 258, 260, 263 City V. Lamson, 9 Wall. 477 333 City of Centralia v. Smith, 103 Mo. App. 438 96 City of Chicago v. Sturges, 222 U. S. 313 134 City of Dawson v, Columbia A. S. F., S. D., T. & T. Co., 197 U. S. 178 124 City of Louisville v. Cumberland T. & T. Co., 155 Fed. 725 124 City of Memphis v. Cumberland T. & T. Co., 218 U. S. 624 124 25 386 TABLE OF CASES. ReFEEENCES ABE TO PAGES. City of New York v. Miln, 11 Pet. 102 215 City of Pittsburgh, Appeal of, 115 Pa. 4 39 City of Salem, The, 38 Fed. 762 43 City of Seattle v. Kelleher, 195 U. S. 351 179 City of Spokane v. Camp, 50 Wash. 554 87 City Ry. Co. v. Citizens' S. Ry. Co., 166 U. S. 557 331 Civil Rights Cases, 109 U. S. 3 124, 348 Claiborne Co. v. Brooks, HI U. S. 400 48 Clark V. Barnard, 108 U. S. 436 355 Clark V. Nash, 198 U. S. 361 239 Clark & Murrell v. Port of Mobile, 67 Ala. 217 86 Clarke v. Rogers, 81 Ky. 43 89, 90 Clegg V. St. Louis & S. F. R. Co., 203 Fed. 971 30 Clendaniel v. Conrad, 25 Del., 83 Atl. 1036 95 Cleveland v. Cleveland O. Ry. Co., 194 U. S. 517 331, 335, 342 Cleveland v. Cleveland E. Ry. Co., 201 U. S. 529 331, 335, 342 Cleveland v. Cleveland E. Ry. Co., 194 U. S. 538 335 Cleveland, C, C. & St. L. Ry. Co. v. Backus, 154 U. S. 439 290 Cleveland E. Ry. Co, v. Cleveland & F. C. Ry. Co., 204 U. S. 116 239 Cleveland G. & C. Co. v. Cleveland, 71 Fed. 610 338 Close V. Glenwood Cemetery, 107 U. S. 466 345 Clyde V. Richmond & D. R. Co., 57 Fed. 436 324 Coal & C. Ry. Co. v. Conley, 67 W. Va. 129 ... .263, 266, 305, 310, 311, 312 Coborn, In re, 131 Pac. 352 108 Coe v. Errol, 116 U. S. 517 22, 24, 34, 35 Coffey V. County of Harlan, 204 U. S. 659 53 Cohens v. Virginia, 6 Wheat. 264 374 Cole V. La Grange, 113 U. S. 1 236, 239 Coleman v. Newby, 7 Kan. 82 61 Collins V. New Hampshire, 171 U. S. 30 25 Colorado T. Co. v. Wilmore, 129 Pac. 204 109 Colorado & S. Ry. Co. v. State R. Comn., 54 Colo. 64 84, 95 Commercial M. A. Co. v. Davis, 213 U. S. 245 206, 364 Commissioner of Railroads v. Wabash R. Co., 126 Mich. 113, 123 Mich. 669 20 Commonwealth v. Addams, 95 Ky. 588 63 Commonwealth v. Atlantic C. L. R. Co., 106 Va. 61 327 Commonwealth v. Collier, 213 Pa. 138 52 Commonwealth v. Cooper, 27 Pa. Co. Ct. 199 83 Commonwealth v. Interstate C. S. Ry. Co., 187 Mass. 436 328 Commonwealth v. King, 150 Mass. 221 43 Commonwealth v. Kingsbury, 199 Mass. 542 50 Commonwealth v. People's Ex. Co., 201 Mass. 564 9 Conde v. Schenectady, 164 N. Y. 258 40 Connolly v. Union S. P. Co., 184 U. S. 540 254 Consolidated G. Co. v. Mayer, 146 Fed. 150 264 TABLE OF CASES. 387 ReFEBENCES ABE TO PAGES. Consolidated G. Co. v. New York, 157 Fed. 849 275, 276, 278, 279, 281, 283, 290, 311, 317 Consolidated R. Co. v. Vermont, 207 U. S. 541 48, 133, 207 Consumers' League v. Colorado & S. Ry. Co., 53 Colo. 54 262, 263 Contra Costa W. Co. v. Oakland, 165 Fed. 518 303, 316 Converse, In re, 137 U, S. 624 145, 177, 178 Cook V. Marshall County, 196 U. S. 261 24, 30 Cook V. United States, 138 U. S. 157 362 Cook & Wheeler v. Chicago, R. I. & P. Ey. Co., 81 Iowa, 551 55 Cooke V. Avery, 147 U. S. 375 61 Cooley V. Board of Wardens, 12 How. 299 6 Cooper V. Schultz, 32 How. Pr. (N. Y.) 107 83 Cooper's Case, 22 N. Y. 67 61 Coopersville C. Co. v. Lemon, 163 Fed. 145 84 Corcoran v. Louisville & N. R. Co., 125 Ky. 634 9, 26 Corkran 0. & D. Co. v. Arnaudet, 199 U. S. 182 115 Corporation Comn. v. Seaboard A. L. System, 127 N. C. 283 66 Corporation Tax Cases, see Flint v. Stone Tracy Co. Cosmopolitan Club v. Virginia, 208 U. S. 378 347 Cotteral v. Barker, 34 Okla. 533 50 Cotting V. Kansas C. S. Y. Co., 183 U. S. 79 . . 127, 254, 255, 263, 265, 274 Coughran v. Bigelow, 164 U. S. 301 363 Coulter V. Louis\ille & N. R. Co., 196 U. S. 599 179, 180 Counseknan v. Hitchcock, 142 U. S. 547 365 County Comrs., In re, 22 Okla. 435 96 County of Mobile v. Kimball, 102 U. S. 691 158, 191 County of Moultrie v. Rockingham T. C. S. Bank, 92 U. S. 631 330, 334, 335 County of San Mateo v. Southern P. R. Co., 13 Fed. 722 346 County of Santa Clara v. Southern P. R. Co., 18 Fed. 385 346 Covington & C. B. Co. v. Kentucky, 154 U. S. 204 11, 27, 34, 38, 43 Covington & L. T. R. Co. v. Sandford, 164 U. S. 578 120, 122, 127, 232, 262, 263, 274, 301, 310, 313, 314, 339, 372 Cowden v. Pacific C. S. Co., 94 Cal. 470 10 Cox, Ex parte, 63 Col. 21 63, 83 Crigler v. Shepler, 79 Kan. 834 334 Cross V. ^Jorth Carolina, 132 U. S. 131 133 Cross L. S. & F. Club v. Louisiana, 224 U. S. 632 332, 334 Crozier v. Fried. Krupp Aktiengesellschaft, 224 U. S. 290 272 Cumberland T. & T. Co. v. Louisville, 187 Fed. 637 275, 276, 279, 283, 285, 317, 320 Cumberland T. & T. Co. v. Memphis, 200 Fed. 657 62 Cumberland T. & T. Co. v. Memphis, 198 Fed. 955 331 Cumberland T. & T. Co. v. Memphis, 183 Fed. 875 303, 316 Cumberland T. & T. Co. v. R. Comn. of La., 156 Fed. 823 136, 317 Cummings v. Missouri, 4 Wall. 277 195 388 TABLE OF CASES. Refebences are to Pages. Cunningham v. Macon & B. R. Co., 109 U. S. 446 357 Cunnius v. Reading Scliool Dist., 198 U. S. 458 122, 204, 206, 209 Curran v. Arkansas, 15 How. 304 355 D. Dallcmagne v. Moisan, 197 U. S. 169 41 Danforth v. Groton W, Co., 178 Mass. 472 216 Daniel Ball, The, 10 Wall. 557 27, 28, 43 Daniels v. Tearney, 102 U. S. 415 39 Darnell v. Indiana, 220 U. S, 390 256, 371 Dartmoutli College v. Woodward, 4 Wheat. 518 181, 330, 334 Davidson v. New Orleans, 96 U. S. 97 116, 119, 140, 152, 155, 160 173, 174, 197, 201, 211, 230, 236, 237, 238, 239 Davis V. Gray, 16 Wall. 203 334 Dawson v. Columbia A. S. F., S. D., T. & T. Co., 197 U. S. 178 ... 124, 331 Day, In re, 181 111. 73 61 Debs, In re, 158 U. S. 564 362 Degge V. Hitchcock, 229 U. S. 162 374 Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341 122, 205 Delaware & H. C. Co. v. Commonwealth, 1 Mona. ( Pa. ) 36 24 De Lima v. Bidwell, 182 U. S. 1 54 Delmar Jockey Club v. Missouri, 210 U. S. 324 145 Delmas v. Insurance Co., 14 Wall. 661 330, 334 Denny v. Bennett, 128 U. S. 489 331 Dent v. West Virginia, 129 U. S. 114 131, 160, 178 Denver v. New Y. T. Co., 229 U. S. 123 42, 258, 332 Desert W., O. & I. Co. v. California, 202 Fed. 498 355 Des Moines v. Des Moines C. Ry. Co., 214 U. S. 179 331 Des Moines W. Co. v. Des Moines, 192 Fed. 193 286, 311, 317 Detroit v. Detroit C. S. Ry. Co., 184 U. S. 368 331, 335, 336, 341 Detroit v. Parker, 181 U. S. 399 116 Detroit, G. H. & M. Ry. Co. v. Inter. Com. Comn., 74 Fed. 803 34, 35 Detroit U. Ry. v. Detroit, 229 U. S. 39 337 Diamond M. Co. v. Ontonagon, 188 U. S. 82 24, 27 Diaz V. United States, 223 U. S. 442 359 Dickinson T. R., 23 Pa. Super. 34 239 Dill V. Ebey, 229 U. S. 199 371 Dilworth v. Schuylkill 1. L. Co., 219 Pa. 527 56 District of Columbia v. Brooke, 214 U. S. 138 180, 190, 213 Dobbins v. Los Angeles, 195 U. S. 223 124, 139, 176, 178, 179, 203 Dodge V. Woolscy, 18 How. 331 330 Dominus Rex v. Kilderby, 1 Saund. 312 244 Donnelly v. United States, 228 U. S. 243 95 Dorman v. State, 34 Ala. 216 53, 158, 189, 191, 197 Dorr v. United States, 195 U. S. 138 78, 187, 198 TABLE OF CASES. 389 References are to Pages. Douglas P. J. C. V. Grainger, 146 Fed. 414 123 Douglass V. County of Pike, 101 U. S. 677 333 Dow V. Beidelman, 125 U. S. 680 127, 231, 262, 274, 276, 277, 299 Dower v. Richards, 151 U. S. 658 364 Dowling V. Lancashire I. Co., 92 Wis. 63 63 Downes v. Bidwell, 182 U. S. 244 198, 374 Dreier v. United States, 221 U. S. 394 366 Dreyer v. Illinois, 187 U. S. 71 80, 207 Dugan V. State, 125 Ind. 130 10 Dunbar v. Boston & P. R. Co., 181 Mass. 383 216 E. Eakin v. Raub, 12 S. & R. (Pa.) 330 65, 188 Eckerson v. Des Moines, 137 Iowa, 452 52 Edwards v. Elliott, 21 Wall. 532 363 Edwards v. Kearzey, 96 U. S. 595 330, 334 Eldridge v. Trezevant, 160 U. S. 452 177 Elliott V. City of Detroit, 121 Mich. 611 50 Elliott V. Toeppner, 187 U. S. 327 364 Ellis V. United States, 206 U. S. 246 180 El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87 2, 54, 376 Elwell V. Comstock, 99 Minn. 261 82 Elwood G. Co. V. St. Joseph & G. I. Ry. Co., 202 Fed. 845 32 Empire S. C. Co. v. Atchison, T. & S. F. Ry. Co., 210 U. S. 1 364 Employers' Liability Cases, see Howard v. Illinois C. R. Co. Employers' Liability Cases, Second, see Mondou v. New Y., N. H. & H. R. Co. Emporia v. Emporia T. Co., 88 Kan. 443 39 Engel V. O'Malley, 219 U. S. 128 212, 263 Ensign v, Pennsylvania, 227 U. S. 592 115, 132 Erie v. Erie G. & M. Co., 78 Kan. 348 305 Erie R. Co. v. Purdy, 185 U. S. 148 16 Erie R. Co. v. Wenaque L. Co., 75 N. J. L. 878 110 Escanaba & L. M. T. Co. v. Chicago, 107 U. S. 678 218 Estate of Stilwell, In the Matter of, 139 N. Y. 337 61 Ettor V. Tacoma, 228 U. S. 148 229, 332, 356 Eubank v. Richmond, 226 U. S. 137 139, 140, 208, 215, 343 Evers v. Hudson, 36 Mont. 135 51 Ewing V. Leavenworth, 226 U. S. 464 10 Ex parte Beck, 162 Cal. 701 89 Ex parte Boyce, 27 Nev. 299 244 Ex parte Boyd, 105 U. S. 647 93 Ex parte Cox, 63 Cal. 21 63, 83 Ex parte Farnsworth, 61 Tex. Cr. 342 50 Ex parte Gerino, 143 Cal. 412 82 390 TABLE OF CASES. References abe to Pages. Ex parte Griffiths, 118 Ind. 83 61 Ex parte tiarding, 219 U. S. 303 150, 187 Ex parte Holman, 79 S. C. 9 187 Ex parte Koehler, 30 Fed. 867 26 Ex parte Koehler, 23 Fed. 529 321, 324, 325, 345 Ex parte Lange, 18 Wall. 163 115, 359, 360 Ex parte McManus, 151 Cal. 331 82 Ex parte Martin, 13 Ark. 198 235 Ex parte Nebraska, 209 U. S. 436 356 Ex parte Siebold, 100 U. S. 371 191 Ex parte Terry, 128 U. S. 289 362 Ex parte Virginia, 100 U. S. 339 155, 252, 255 Ex parte Wall, 107 U. S. 265 138 Ex parte Wall, 48 Cal. 279 89 Ex parte Whitley, 144 Cal. 167 82 Ex parte Wood, 155 Fed. 190 264 Ex parte Young, 209 U. S. 123 57, 128, 226, 227, 232 256, 264, 266, 314, 354, 358 Express Cases, 117 U. S. 1 105 F. Fairbank v. United States, 181 U. S. 283 374 Fair H. & W. R. Co. v. New Haven, 203 U. S. 379 345 Fairview v. Giffee, 73 Ohio St. 183 50 Fall V. Eastin, 215 U. S. 1 206 Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112 123, 132, 133, 135, 140, 145, 173, 179, 191, 236, 238, 239, 242 Fargo V. Hart, 193 U. S. 490 123, 205, 290, 292 Farmers' L. & T. Co. v. Stone, 20 Fed. 270 16, 73 Farnsworth, Ex parte, 61 Tex. Cr. 342 50 Fayerweather v. Ritch, 195 U. S. 276 122, 139, 180 Fell V. State, 42 Md. 71 89 Felts V. Murphy, 201 U. S. 123 137, 173 Ferguson v. Landram, 5 Bush (Ky.) 230 39, 40 Ferguson v. Reardon, 124 N. Y. App. Div. 818 366 Fidelity & C. Co. v. Southern Ry. N. Co., 214 U. S. 498 145 Field V. Barber A. P. Co., 194 U. S. 618 179 Field T. Clark, 143 U. S. 649 51, 77, 87 Fink V. O'Neil, 106 U. S. 272 93 Finley v. California, 222 U. S. 28 261 Fisher t. Baker, 203 U. S. 174 371 Fisk V. Jefferson Police Jury, 116 U. S. 131 330, 335 Fite V, State, 114 Tenn. 646 63, 95 Fitzgerald v. Fitzgerald & Mallory C. Co., 41 Neb. 374 40 Fitzmaurice v. New Y., N. H. & H. R. Co., 192 Mass. 159 328 TABLE OF CASES. 391 ReFEBENCES ABE TO PAGES. Flemister v. United States, 207 U. S. 372 359 Fletcher v. Peck, 6 Cranch, 87 201, 204, 236, 330, 334, 335 Flint V. Stone Tracy Co., 220 U. S. 107 . . .37, 54, 60, 144, 190, 205, 209, 211 Florida E. C. Ry. Co. v. United States, 200 Fed. 797 112, 297 Fong Yue Ting' v. United States, 149 U. S. 698 178, 362 Ford V. Surget, 97 U. S. 594 331 Forsyth v. Hammond, 166 U. S. 506 132, 133 Foster v. Morse, 132 Mass. 354 40 Fournier v. Comrs. of Aroostook Co., 109 Me. 48 50, 87 Fouts V, Hood River, 46 Ore. 492 51, 89 Fox V. McDonald, 101 Ala. 51 52 Franklin v. South Carolina, 218 U. S. 161 200, 255 Franklin v. United States, 216 U. S. 559 92 Frasier v. Charleston & W. C. Ry. Co., 81 S. C. 162 10 Freeland v. Williams, 131 U. S. 405 140 Freeport W. Co. v. Freeport, 180 U. S. 587 337, 341, 342 French v. Barber A. P. Co., 181 U. S. 324 .... 116, 117, 118, 124, 160, 179 French v. Taylor, 199 U. S. 274 133 Frisbie v. United States, 157 U. S. 160 196 G. Galveston, H. & S. A. Ry. Co. y. Wallace, 223 U. S. 481 8, 12 Galveston & W. Ry. Co, v. Galveston, 90 Tex. 398, 91 Tex. 17 39 Gamble-Robinson Comn. Co. v. Chicago & N. W. Ry. Co., 168 Fed. 161 . 27 Gardner v. Michigan, 199 U. S. 325 209, 212, 229, 263 Gardner v. Newburgh, 2 Johns. Ch. 162 235 Garfield v. Goldsby, 211 U. S. 249 115, 126, 137 Garnett, In re, 141 U. S. 1 44 Gavieres v. United States, 220 U. S, 338 359 Gelpcke v. Dubuque, 1 Wall. 175 333, 334 General Oil Co. v. Grain, 209 U. S. 211 23, 24 George v. Chicago, R. I. & P. Ry. Co., 214 Mo. 551 325 Georgia R. & B. Co. v. Smith, 128 U. S. 174 69, 75, 127, 231, 338 Georgia R. & B. Co. v. Smith, 70 Ga. 694 65, 68, 69, 71 Gerino, Ex parte, 144 Cal. 167 82 German A. Ins. Co. v. Hale, 219 U. S. 307 210, 216, 218, 253, 258 Gibbons v. Ogden, 9 Wheat. 1 16, 43, 54, 157 Gibson v. Mississippi, 162 U. S. 565 133, 255 Gilbert E. Ry. Co., In re, 70 N, Y. 361 84 Gilhooly v. City of Elizabeth, 66 N. J. L. 484 63, 77 Giozza v. Tieman, 148 U. S, 657 173, 178, 201 Glickstein v. United States, 222 U. S. 139 366 Gloucester W. S. Co. v. Gloucester, 179 Mass. 365 286 Goodrich v. Ferris, 214 U. S. 71 137 Gould V. Youngworth, 205 U. S. 538 362 392 TABLE OF CASES. References are to Pages. Governor of Georgia v. Madrazo, 1 Pet. 110 355 Grafton v. United States, 206 U. S. 333 359, 360 Graham v. Roberts, 200 Mass. 152 50 Graham v. West Virginia, 224 U, S. 616 132, 360 Grand R, & I. Ry. Co. v, Osborn, 193 U. S. 17 20, 39, 40, 339 Grand T. W. Ry. Co. v. R. Comn. of Indiana, 221 U. S. 400 330 Grand T. W. Ry. Co. v. South Bend, 277 U. S. 544 ... 330, 333, 335, 343 Granger Cases, 94 U. S., see Munn v. Illinois; Chicago, B. & Q. R. Co. V. Iowa; Peik v. Cliieago & N. W. Ry. Co. Grant v. United States, 227 U. S. 74 366, 368 Green v. Biddle, 8 Wheat. 1 334 Green B. & M. C. Co. v. Patten P. Co., 172 U. S, 58, 173 U. S. 179 122, 139, 146, 204 Green County v. Quinlan, 211 U. S. 582 243, 244 Greenough v. Greenough, 11 Pa. St. 494 108 Greenwood v. Freight Co., 105 U. S. 13 346 Gregory v. Kansas City, 244 Mo. 523 95 Grenada L. Co. v. Mississippi, 217 U. S. 433 56, 133, 190, 245, 370, 371 Gretna Green, The, 20 Fed. 901 43 Griffin V. Goldsboro W. Co., 122 N. C. 206 276, 277 Griffith V. Connecticut, 218 U. S. 563 209, 259 Griffiths, Ex parte, 118 Ind. 83 61 Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150 141, 260 Gulf, C. & S. F. Ry. Co. v. Texas, 102 Tex. 338 326 Gulf & S. I. R. Co. V. Adams, 90 Miss. 559 336 Gulf & S. I. R. Co. V. Hewes, 183 U. S. 66 340 Guild V. City of Chicago, 82 111. 472 89 Gulf C. Co. V. Harris, Cortner & Co., 158 Ala. 343 59, 109 Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150 120, 254, 255 Gulf, C. & S. F. Ry. Co. v. Hefley, 158 U. S. 98 H, 13, 14, 40 Gulf, C. & S. F. Ry. Co. v. R. Comn., 102 Tex. 338 Ill, 316, 324 Gulf, C. & S. F. Ry. Co. v. Texas, 204 U. S. 403 24, 25, 28, 29, 31, 364 Gundling v. Chicago, 177 U. S. 183 209, 212, 215 Gunn V. Barry, 15 Wall. 610 330 H. Hagar v. Reclamation Dist., Ill U. S. 701 133, 140 Hagood V. Southern, 117 U. S. 52 357 Hairston v. Danville & W. Ry. Co., 208 U. S. 598 134, 239, 240 Hale V. Henkel, 201 U. S. 43 365, 366, 367, 368 Hall V. De Cuir, 95 U. S. 485 13, 27 Hall V. Wisconsin, 103 U. S. 5 334 Hallinger v. Davis, 146 U. S. 314 132, 174 Halter v. Nebraska, 205 U. S. 34 53, 80, 200, 217, 218 TABLE OF CASES. 393 References aee to Pages, Hamilton, The, 207 U. S. 398 5, 206 Hamilton G. L. & C. Co. v. Hamilton City, 146 U. S. 258 331 Hammond P. Co. v. Arkansas, 212 U. S. 322 42, 121, 132, 135, 137, 180, 205, 210 Hampton v, St, Louis, I, M. & S, Ry. Co., 227 U. S. 456 15, 370, 371 Hand v. Stapleton, 135 Ala. 156 84, 87 Hanford v. Davies, 163 U, S, 273 331 Hanley v, Kansas C. S. Ry. Co., 187 U. S. 617 2, 10, 34 Hannibal B. Co. v. United States, 221 U, S. 194 76 Hannis D. Co. v. Baltimore, 216 U. S. 285 204, 205 Hanover Nat. Bk. v. Moyses, 186 U. S. 181 209, 330 Hans V. Louisiana, 134 U. S. 1 353, 354, 355, 356, 357 Harder's F. S. & V. Co. v. Chicago, 235 111. 58 53 Harding, Ex parte, 219 U. S. 363 150, 187 Hardwick F. E. Co, v, Chicago, R. I. & P. Ry. Co., 110 Minn. 25 10 Harkrader v. Wadley, 172 U. S. 148 357 Harmon v. Chicago, 147 U. S. 396 33, 43 Harmon v. State, 66 Ohio St, 249 82 Harriman v. Interstate Com. Comn., 211 U. S. 407 372 Hatch V. Reardon, 204 U. S, 152 177, 205, 257, 328 Havemeyer v. Iowa County, 3 Wall. 294 333 Hawaii v. Mankichi, 190 U. S. 197 198 Hazel Kirke, The, 25 Fed. 601 43 Heath & Milligan Mfg. Co. v. Worst, 207 U. S. 338 ... 141, 191, 245, 259 Hedderich v. State, 101 Ind. 564 197 Heike v. United States, 227 U. S. 131 366 Heiserman v. Burlington, C. R. & N. Ry. Co., 63 Iowa, 732 26 Henderson v. Central P. Ry. Co., 21 Fed. 358 238 Henderson B. Co. v. Henderson City, 173 U. S. 592 179, 189, 229 Henderson B. Co. v. Kentucky, 166 U. S, 150 17 Hennington v, Georgia, 163 U. S. 299 190 Hepburn v, Griswold, 8 Wall, 603 197, 201 Herndon v. Chicago, R. I. & P. Ry. Co., 218 U. S. 135 41, 266, 358 Herndon v. Imperial F. I. Co., Ill N. C. 384 61 Hertz V, Woodman, 218 U, S, 205 187 Heyman v. Southern Ry, Co., 202 U. S. 270 25 Hibben v. Smith, 191 U. S. 310 116, 177, 178 Higginson v, Chicago, B, & Q. R. Co., lOO Fed. 235 326 Hildreth v. Crawford, 65 Iowa, 339 61, 82 Hills & Co. V. Hoover, 220 U. S. 329 94 Hingham & Q. B. & T. Corp. v. County of Norfolk, 88 Mass. 353 40 Hodges v. United States, 203 U. S. 1 54, 125, 173 Hodgson v. Vermont, 168 U. S. 262 178, 210 Hoke V. United States, 227 U. S. 308 54, 213 Holden v. Hardy, 169 U. S. 366 140, 184, 196, 201, 209, 215, 229, 239, 254, 255, 259, 260 394 TABLE OF CASES. References are to Pages. Hollingsworth v. Virginia, 3 Dall. 378 355 Holman, Ex parte, 79 S. C. 9 187 Home I. Co. v. Swigert, 104 111. 653 86 Home T. Co. v. Carthage, 235 Mo. 644 286, 303, 315 Home T. & T. Co. v. Los Angeles, 227 U. S. 278 331 Home T. & T. Co. v. Los Angeles, 211 U. S. 265 ... 59, 122, 123, 125 126, 128, 129, 131, 136, 137, 232, 261, 262, 263, 337, 341, 343 Honolulu R. T. & L. Co. v. Hawaii, 211 U. S. 282 59, 110, 129 Hooe V. United States, 218 U. S. 322 123, 125, 127 Hooker v. Knapp, 225 U. S. 302 110 Hooker v. Los Angeles, 188 U. S. 314 133, 191 Hoopes V. Bradshaw, 231 Pa. 485 61 Hopkins v. Clemson Agricultural College, 221 U. S. 636 ... 353, 356, 357 Hotema v. United States, 186 U. S. 413 359 House V. Mayes, 219 U. S. 270 ... 53, 54, 209, 210, 212, 215, 218, 245 Houston V. Williams, 13 Cal. 24 61 Houston D. N, Co. v. Insurance Co. of N. A., 89 Tex. 1 38 Houston & T. C. R. Co. v. Storey, 149 Fed. 499 19, 263, 339 Houston & T. C. Ry. Co. v. Texas, 170 U. S. 243 330, 334 Hovey v. Comrs. of Wyandotte Co., 56 Kan, 577 63 Hovey v. Elliott, 167 U. S. 409 137, 139 Howard v. Illinois C. R. Co., 207 U. S. 463 16, 191, 372, 375, 376 Howard v. Kentucky, 200 U. S. 164 115, 145, 199, 204, 207 Hubert v. New Orleans, 215 U. S. 170 333 Hudson V. Parker, 156 U. S. 277 61 Hudson C. W. Co. v. McCarter, 209 U. S. 349 140, 216, 344 Hunt V. Tausick, 64 Wash. 69 50 Hunter v. Charleston & W. C. Ry. Co., 81 S. C. 169 10 Hunter v. City of Tracy, 104 Minn. 378 81 Hunter v. Pittsburgh, 207 U. S. 161 115, 132, 190 Hunter v. Wood, 209 U. S. 205 264 Hurst V. Warner, 102 Mich. 238 83 Hurtado v. California, 110 U. S. 516 52, 116, 117, 130, 151, 152, 159, 160, 170, 174, 177, 178, 184, 193, 196, 198, 199, 201, 241 Illinois C. R. Co. v. Edwards, 203 U. S. 531 16 Illinois C. R. Co. v. Henderson E. Co., 226 U. S. 441 8, 13 Illinois C. R. Co. v. Illinois, 108 U. S. 541 338 Illinois C. R. Co. v. Inter. Com. Comn., 206 U. S. 441 113, 303, 305 Illinois C. R. Co. v. McKendree, 203 U. S. 514 16 Illinois C. R. Co. v. Stone, 20 Fed. 468 16, 73, 74 Incorporated Village of Fairview v. Giffee, 73 Ohio St. 183 50 Incorporation of North Milwaukee, In re, 93 Wis. 616 63 Indianapolis v. Navin, 151 Ind. 139 341 TABLE OF CASES. 395 KeFEBENCES ABE TO PaGES. Ingram v. State, 39 Ala. 247 96 Inhabitants of Township of Bernards v. Allen, 61 N. J. L. 228 63 In re Advances in Rates— Eastern Case, 20 I. C. C. 243 276, 299 In re Advances in Rates— Western Case, 20 1. C. C. 307 277, 320 In re Arkansas Railroad Rates, 168 Fed. 720 281, 293, 304 In re Arkansas Railroad Rates, 163 Fed. 141 316 In re Arkansas Rate Cases, 187 Fed. 290 278, 289, 293, 302, 303, 304, 317 In re Ayers, 123 U. S. 443 357 In re Beer, 17 N. D. 184 365 In re Chapman, 166 U. S. 661 49 In re Coborn, 131 Pac. 352 108 In re Converse, 137 U. S. 624 145, 177, 178 In re County Comrs., 22 Okla. 435 96 In re Day, 181 111. 73 61 In re Debs, 158 U. S. 564 362 In re Garnett, 141 U. S. 1 44 In re Gilbert E. Ry. Co., 70 N. Y. 361 84 In re Incorporation of North Milwaiikee, 93 Wis. 616 63 In re Jacobs, 98 N. Y. 98 247, 248 In re Janitor of Supreme Court, 35 Wis. 410 49, 61 In re Kelly, 46 Fed. 653 207 In re Kemmler, 136 U. S. 436 116, 130, 160, 173, 174, 177, 184, 199 In re Kollock, 165 U. S. 526 95 In re Manning, 139 U. S. 504 145 In re Municipal Suffrage to Women, 160 Mass. 586 50 In re New Y. E. R. Co., 70 N. Y. 327 84, 88, 89 In re Opinion of Justices, 74 N. H. 606 95 In re Pfahler, 150 Cal. 71 50 In re Rahrer, 140 U. S. 545 24, 51, 79, 80 In re Rebecchi, 100 N. Y. Supp. 335 279 In re Sadler, Okla., 130 Pac. 906 61 In re Senate Bill, 12 Colo. 188 96 In re Shibuya Jugiro, 140 U. S. 291 255 In re Thompson, 36 Wash. 377 82 International P. S. Co. v. Bruce, 194 U. S. 601 356, 357 International T. Co. v. Pigg, 217 U. S. 91 375 Interstate Com. Comn. v. Alabama M. Ry. Co., 168 U. S. 144 59, 62, 76, 111 Interstate Com. Comn. v. Baird, 194 U. S. 25 9, 365 Interstate Com. Comn. v. Baltimore & O. R. Co., 145 U. S. 263 328 Interstate Com. Comn. v. Bellaire, Z. & C. Ry. Co., 77 Fed. 942 26 Interstate Com. Comn. v. Brimson, 154 U. S. 447 107, 137 Interstate Com, Comn. v. Chicago, B. & Q. R. Co., 218 U. S. 113 . 8, 72 Interstate Com. Comn. v. Chicago, B. & Q. R. Co., 94 Fed. 272 108 Interstate Com. Comn. v. Chicago G. W. Ry. Co., 209 U. S. 108 . 73, 104 396 TABLE OF CASES. ReFEKENCES ABE TO PAGES. Interstate Com. Comn. v. Chicago, R. I. & P. Ry. Co., 218 U. S. 88 8, 59, 72, 111, 228, 271, 328, 371 Interstate Com. Comn. v. Cincinnati, N. O. & T. P. Ry. Co., 167 U. S. 479 59, 62, 72, 76, 107, 128 Interstate Com. Comn. v. Delaware, L. & W. R. Co., 220 U. S. 235 . . 113 Interstate Com. Comn. v. Detroit, G. H. & M. Ry. Co., 167 U. S. 633 35, 37 Interstate Com. Comn. v. Diffenbaugh, 222 U. S. 42 32 Interstate Com. Comn. v. Goodrich T. Co., 224 U. S. 194 ... 16, 45, 77, 95 Interstate Com. Comn. v. Illinois C. R. Co., 215 U. S. 452 72, 112, 191, 204 Interstate Com. Comn. v, Louisville & N. R. Co., 227 U. S. 88 111, 112, 138, 210, 225 Interstate Com. Comn. v. Louisville & N. R. Co., 118 Fed. 613 . . 310, 321 Interstate Com. Comn. v. iNorthern P. Ry. Co., 216 U. S. 538 104 Interstate Com. Comn. v. Reichmann, 145 Fed. 235 9 Interstate Com. Comn. v. Union P. R. Co., 222 U. S. 541 8, 104, 111, 112, 113, 191, 210, 230, 325 Interstate Com. Comn. v. U. S. ex rel H. S. Co., 224 U. S. 474 2 Interstate C. S. Ry. Co. v. Commonwealth, 207 U. S. 79 39, 100, 173, 216, 261, 328 In the Matter of George Harris, 221 U. S. 274 366 In the Matter of Spencer, 228 U. S. 652 371 In the Matter of the Estate of Stilwell, 139 N. Y. 337 61 In the Matter of Through Routes and Through Rates, 12 I. C. C. 163 . 31 Iowa C. Ry, Co. v. Iowa, 160 U. S. 389 133 Iowa L. I. Co. V. East M. L. I. Co., 64 N. J. L. 340 84 Iron C. Co. v, Negaunee I. Co., 197 U. S. 463 123 Iron M. R. Co. v. Memphis, 96 Fed. 113 124 Iron M. R. Co. v. Memphis, 89 Tex. 1 38 Isenhour v. State, 157 Ind. 517 83 Ivy V. Western U. T. Co., 165 Fed. 371 57 J. Jack V. Kansas, 199 U. S. 372 115, 134 Jackson v. Rogers, 2 Show. 327 56 Jacob v. Roberts, 223 U. S. 261 137 Jacobs, In re, 98 N. Y. 98 247, 248 Jacobson v. Massachusetts, 197 U. S. 1] 41, 54, 178, 196, 202, 203, 209, 210, 212, 214, 215, 216, 245 James v. Bowman, 190 U. S. 127 125, 372, 376 James v. Walker, 141 Ky. 88 87 Jamieson v. Indiana N. G. Co., 128 Ind. 555 345 Janitor of Supreme Court, In re, 35 Wis. 410 49, 61 Janvrin v. Revere W. Co., 55 N. E. 381 108 TABLE OF CASES. 397 References abe to Pages. Janvrin, Petitioner, 174 Mass. 514 108 Jeflferson Branch Bank v. Skelly, 1 Black, 436 333 Jermyn v. Fowler, 186 Pa. 595 95 Jetson V. University of the South, 208 U. S. 489 339 Johannessen v. United States, 225 U. S. 227 107 Johnson v. Southern P. Co., 196 U. S. 1 24 Johnson v. United States, 228 U. S. 457 140, 178, 366 Johnston C. Assn. v. Parker, 45 N. Y. App. Div. 55 63 Jones V. Belzoni Drainage Dist., 102 Miss., 59 So. 921 84 Jordan v. Massachusetts, 225 U. S. 167 138 Juilliard v. Greenman, 110 U. S. 421 54 J. W. Perry Co. v. Norfolk, 220 U. S. 472 333, 337 K. Kadderly v. City of Portland, 44 Ore. 118 91 Kansas v. Colorado, 206 U. S. 46 2, 16, 20, 54, 80, 105, 353 Kansas, C. S. Ry. Co. v. Albers Comn. Co., 233 U. S. 573 8, 14, 30, 364 Kansas C. S. Ry. Co. v. Brooks, 84 Ark. 233 11 Kansas C. S. Ry. Co. v. Carl, 227 U. S. 639 14 Kansas C. S. Ry. Co. v. United States, 204 Fed. 641 112 Kaukauna W. P. Co. v. G. B. & M. C. Co., 142 U. S. 254 139, 233, 234 Kawananakoa v. Polyblank, 205 U. S. 349 353, 356 Keefe v. Lexington & B. S. Ry. Co., 185 Mass. 183 39 Keeney v. New York, 222 U. S. 525 205, 257, 260 Keerl v. Montana, 213 U. S. 135 360 Kehler & Bro. v. Jack M. Co., 55 Ga. 639 63 Keith V. Clark, 97 U. S. 454 330 Keller v. United States, 213 U. S. 138 54, 218 Kelley v. Rhoads, 188 U. S. 1 23, 24 Kelly, In re, 46 Fed. 653 207 Kemmler, In re, 136 U. S. 436 .... 116, 130, 160, 173, 174, 177, 184, 199 Kennard v. Louisiana, 92 U. S. 480 130 Kennebec W. Dist. v. Waterville, 97 Me. 185 289 Kennedy v. Mayor, 21 R. I. 461 81 Kentucky R. Tax Cases, 115 U. S. 321 230 Kentucky U. Co. v. Kentucky, 219 U. S. 140 108, 178, 211, 217, 258, 375 Kentucky & I. B. Co. v. Louisville & N. R. Co., 37 Fed. 567 27 Keokuk & W. R. Co. v. Missouri, 152 U. S. 301 340 Kepner v. United States, 195 U. S. 100 360 Kerfoot v. Farmers' & M. Bk., 218 U. S. 281 364 Kidd V. Pearson, 128 U. S. 1 13, 34 Kidd, D. & P. Co. V. Musselman G. Co., 217 U. S. 461 210 Kier v. Lowrey, 199 U. S. 233 333 398 TABLE OF CASES. Refebences are to Pages. Kilbourn v. Thompson, 103 U. S. 168 49 King V. Concordia F. I. Co., 140 Mich. 258 63 King V. Hatfield, 130 Fed. 564 139, 239 King V. Mullins, 171 U. S. 404 168 King V. Tennessee, 87 Tenn. 304 63 Kingman et al.. Petitioners, 153 Mass. 566 96 Kirby v. United States, 174 U. S. 47 368 Knight V. Lane, 228 U. S. 6 127 Knights T. I. Co. v. Jarman, 187 U. S. 197 372 Knott V. Chicago, B. & Q. R. Co., 230 U. S. 474 188, 293, 301, 304, 312, 372, 376, 377 Knowlton v. Moore, 178 U. S. 41 198, 349 Kmoxville v. Knoxville W. Co., 212 U. S. 1 58, 128, 188, 192, 228, 230, 265, 273, 277, 279, 281, 286, 303, 307, 314, 376 Knoxville W. Co. v. Knoxville, 189 U. S. 434 337, 344, 346 Koehler, Ex parte, 30 Fed. 867 26 Koehler, Ex parte, 23 Fed. 529 321, 324, 325, 345 Kollock, In re, 165 U. S. 526 95 Koppala V. State, 15 Wyo. 398, 414, 418 83 Kuhn V. Fairmount C. Co., 215 U. S. 349 333 Lake County v. Graham, 130 U. S. 674 340 Lake S. & M. S. Ry. Co. v. Ohio, 173 U. S. 285 218 Lake S. & M. S. Ry. Co. v. Smith, 173 U. S. 684 ... 120, 122, 127, 143, 177, 208, 215, 226, 228, 230, 233, 256, 327, 328, 346, 347 Lambert v. Barrett, 157 U. S. 697 145 Lange, Ex parte, 18 Wall. 163 115, 359, 360 Lanning v. Osborne, 76 Fed. 319 109 Latimer v. United States, 223 U. S. 501 118 Laurel F. & S. H. R. Co. v. West V. T. Co., 25 W. Va. 324 336 Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 173, 188, 257 Lawton v. Steele, 152 U. S. 133 200, 204, 210, 212, 215, 216, 222 League v. Texas, 184 U. S. 156 48 Lee v. Bude & T. J. Ry. Co., L. R. 6 C. P. 576 52, 203 Lee v. Marsh, 230 Pa. 351 95 Leechburg Borough v. Leechburg W. W. Co., 219 Pa. 263 296 Leeper v. State, 103 Tenn. 500 84 Leeper v. Texas, 139 U. S. 402 178, 184 Lee Wilson & Co. v. W. R. C. B. & M. Co., Ark., 146 S. W. 110 50 Legal Tender Cases, 12 Wall. 457 189, 191, 197, 201 Lehigh V. R. Co. v. Pennsylvania, 145 U. S. 192 43, 44 Lehigh V. R. Co. v. United States, 204 Fed. 986 326 Lehigh W. Co. v. Easton, 121 U. S. 388 331 Leisy v. Hardin, 135 U. S. 100 5, 24, 217 TABLE OF CASES. 399 KeFEBENCES ABE TO PAGES. Lemieux v. Young, 211 U. S. 489 209, 210 Lent V. Tillson, 140 U. S. 316 145, 207 Leonard v. Vicksburg, S. & P. R. Co., 198 U. S. 416 40 Lessee of Livingston v. Moore, 7 Pet. 469 60 Lew V. Bray, 81 Conn. 213 61 Lewis B. P. O. C. Co. v. Briggs, 229 U. S. 82 54 L'Hote V. New Orleans, 177 U. S. 587 191 License Cases, 5 How. 504 180, 218 License Tax Cases, 5 Wall. 462 196 Light V. United States, 220 U. S. 523 78, 95, 97 Lincoln County v. Luning, 133 U. S. 529 356 Lincoln G. & E. L. Co. v. Lincoln, 223 U. S. 349 230, 273, 316 Lincoln G. & E. L. Co. v. Lincoln, 182 Fed. 926 277, 283, 307, 316, 320, 325 Lindsay & Phelps Co. v. Mullen, 176 U. S. 126 33 Lindsley v. Natural C. G. Co., 220 U. S. 61 . . 122, 131, 178, 209, 257, 260 Ling Su Fan v. United States, 218 U. S. 302 190, 209, 210 Little Chute v. Van Camp, 136 Wis. 526 63 Little R. & F. S. Ry. Co. v. Hanniford, 49 Ark. 291 13 Liverpool & L. & G. Ins. Co. v. Board of Assessors, 221 U. S. 358 205 Loan Assn. v. Topeka, 20 Wall. 655 197, 201, 211, 236, 239 Lochner v. New York, 198 U. S. 45 122, 139, 141, 155, 180, 204, 208, 212, 215, 237, 245, 328 Locke's Appeal, 72 Pa. 491 51, 89, 90 Loeb v. Columbia Township Trustees, 179 U. S. 472 333 Londoner v. Denver, 210 U. S, 373 121, 123, 124, 133, 137 Long Branch Comn. v. Tintern M. W. Co., 70 N. J. Eq. 71 . . 281, 303, 316 Long I. W. S. Co. V. Brooklyn, 166 U. S. 685 111, 132, 133, 139, 229, 347 Longyear v. Toolan, 209 U. S. 414 137 Lord V. Steamship Co., 102 U. S. 541 43 Los Angeles v. Los Angeles C. W. Co., 177 U. S. 558 331, 335, 336, 341, 372 Lothrop V. Stedman, 42 Conn. (Supp.) 583 84 Lottawanna, The, 21 Wall. 558 44, 54, 57, 168 Lottery Case, see Champion v. Ames. Loughbridge v. Harris, 42 Ga. 500 88 Louisa Simpson, The, 2 Sawyer, 57 78 Louisiana v. Gaster, 45 La. Ann. 636 63, 110 Louisiana v. Jumel, 107 U. S. 711 357 Louisiana v. New Orleans, 215 U. S. 170 330, 333, 334 Louisiana v. Pilsbury, 105 U. S. 278 334, 335 Louisiana v. Police Jury, 111 U. S. 716 334, 335 Louisiana v. Steele, 134 U. S. 230 357 Louisville v. Cumberland T. & T. Co., 225 U. S. 430 315 Louisville v. Cumberland T. & T. Co., 224 U. S. 649 330, 339 400 TABLE OF CASES. References abe to Pages. Louisville v. Cumberland T. & T. Co., 155 Fed. 725 124 Louisville & J. F. Co. v. Kentucky, 188 U. S. 385 122, 205 Louisville & JSl. R. Co. v. Barber A. P. Co., 197 U. S. 430 258 Louisville & N. R. Co. v. Behlmer, 175 U. S. 648 9 Louisville & N. R. Co. v. Brown, 123 Fed. 946 317 Louisville & N. R. Co. v. Central S. Y. Co., 212 U. S. 132 121, 131, 132, 134, 139, 239 Louisville & N. R. Co. v. Commonwealth, 99 Ky. 132 110 Louisville & N. R. Co. v. Cook B. Co., 223 U. S. 70 12 Louisville & N. R. Co. v. Eubank, 184 U. S. 27 19 Louisville & M. R. Co. v. Hughes, 201 Fed. 727 13 Louisville & N. R, Co. v. Interstate Com. Cbmn., 184 Fed. 118 19, 65, 68, 72, 96, 101 Louisville & N. R. Co. v. Kentucky, 183 U. S. 503 17, 129, 179, 190, 226, 230, 232, 256, 262, 264, 337, 338, 343 Louisville & N. R. Co. v. Kentucky, 161 U. S. 677 17, 218 Louisville & JN. R. Co. v. Melton, 218 U. S. 36 258, 260 Louisville & N. R. Co. v. Mottley, 219 U. S. 467 8, 14, 30, 54, 190 Louisville & N. R. Co. v. R. Comn. of Ala., 196 Fed. 800 261, 262, 263, 265, 276, 278, 279, 281, 287, 293, 301, 316, 358 Louisville & N. R. Co. v. Railroad Comn., 157 Fed, 944 358 Louisville & N. R. Co. v. Railroad Comn., 19 Fed. 679 37, 39, 110 Louisville & N. R. Co. v. Shiler, 186 Fed. 176 107, 137 Louisville & N. R. Co. v. West C. N. S. Co., 198 U. S. 483 27 Louisville & N. R. Co. v. Woodson, 134 U. S. 614 115 Lowe V. Kansas, 163 U. S. 81 131 Ludwig V. Western U. T. Co., 216 U. S. 146 . . 16, 41, 122, 139, 205, 368 Lum V. Mayor, 72 Miss. 950 89 M. McAlister v. Henkel, 201 U. 8. 90 367 McChord v. Louisville & N. R, Co., 183 U. S. 483 59, 76 MeCornick v. Western U. T. Co., 79 Fed. 449 51, 79 McCray v. United States, 195 U. S. 27 144, 145, 158, 180, 190, 199, 201, 213 McCulloch v. Maryland, 4 Wheat. 316 212, 374 McCulIough v. Virginia, 172 U. S. 102 333,334 McDcrmott v. Wisconsin, 228 U. S. 115 11, 25, 54, 213 McDonald v. Denton, Tex. Civ. App., 132 S. W. 823 51 McGahey v. Virginia, 135 U. S. 662 334 McGonnell's License, 209 Pa. 327 51 McGovern v. City of New York, 229 U. S. 363 145, 229 McLean v. Arkansas, 211 U. 8. 539 141, 191, 204, 210, 215, 245 McManus, Ex parte, 151 Cal. 331 82 McMillan v. McNeill, 4 Wheat. 209 334 TABLE OF CASES. 401 ReFEBENCES ABE TO PAGES. McNeill V. Southern Ry. Co., 202 U. S. 543 13, 36, 358 McNulty V. Brooklyn H. R. Co., 66 N. Y. Supp. 57 Ill McPherson v. Blacker, 146 U. S. 1 52, 173, 201 McWhorter v. Pensacola & A. R. Co., 24 Fla. 417 65, 68, 71 Mackay v. Uinta D. Co., 229 U. S. 199 371 Mackin v. United States, 117 U. S. 348 174 Madisonville T. Co. v. St. Bernard M. Co., 196 U. S. 239 41, 123, 201, 239 Magoun v. Illinois T. & S. Bank, 170 U. S. 283 60, 255, 257, 258, 260 Maiorano v. Baltimore & O. R. Co., 213 U. S. 268 133, 134 Mammoth M. Co. v. Grand C. M. Co., 213 U. S. 72 364 Manigault v. Springs, 199 U. S. 473 229, 272, 344, 346 Marbury v. Madison, 1 Cranch, 137 174, 186, 188, 189 Marchant v. Pennsylvania R. Co., 153 U. S. 380 123, 133, 177 Marr v. Enloe, I Yerg. (Tenn.) 452 64 Marrow v. Brinkley, 129 U. S. 178 40, 145 Martin v. District of Columbia, 205 U. S. 135 218 Martin v. Hunter's Lessee, 1 Wheat. 304 215 Martin v. Mott, 12 Wheat. 9 158 Martin v. Oregon R. & N. Co., 58 Ore. 198 49 Martin v. Pittsburg & L. E. R. Co., 203 U. S. 284 13 Martin v. Texas, 200 U. S. 316 255 Martin v. West, 222 U. S. 191 13 Martin v. Witherspoon, 135 Mass. 175 96 Martin et al.. Ex parte, 13 Ark. 198 235 Marx V. Hanthorn, 148 U. S. 172 133 Matthews v. Board of Corp. Comrs. of N. C, 106 Fed. 7 ... 275, 289, 323 Matthews v. Board of Corp. Comrs., 97 Fed. 400 339, 345 Matthews v. Murphy, 23 Ky. L. Rep. 750 82, 85 Mattox V. United States, 156 U. S. 237 368 Maxwell v. Dow, 176 U. S. 581 116, 118, 173, 241, 364, 374 May V. New Orleans, 178 U. S. 496 24 Maynard v. Hill, 125 U. S. 190 60 Mayo V. Wilson, 1 N, H. 53 167 Mayor v. Clunet, 23 Md. 449 87 Mayor v. Dechert, 32 Md. 369 , 52 Mayor v. Manhattan Ry. Co., 143 N. Y. 1 39 Mayor v. Scharf, 54 Md. 499 141 Mayor v. State, 102 Miss., 59 So. 873 88 M. C. Kiser Co. v. Central of Ga. Ry. Co., 158 Fed. 193 108 Meeker v. Lehigh V. R. Co., 162 Fed. 354 110 Memphis v. Cumberland T. & T. Co., 218 U. S. 624 124 Memphis v. United States, 97 U. S. 293 334, 335 Memphis St. Ry. Co. v. Byrne, 119 Tenn. 278 61 Menacho v. Ward, 27 Fed. 529 56, 109 26 402 TABLE OF CASES. References abe to Pages. Mercantile T. Co. v. Texas & P. Ry. Co., 51 Fed. 529 75, 136 Mercantile T. & D. Co. v. Columbus, 203 U. S. 311 331 Merchants' Exchange v. Knott, 212 Mo. 616 84, 95 Merchants' Mat. Bank v. Sexton, 228 U. S. 634 39 Merchants' & M. Bank v. Pennsylvania, 167 U. S. 461 134 Metropolis T. Co. v. Chicago, 228 U. S. 61 ... 145, 190, 210, 260, 261, 263 Metropolitan L. I. Co. v. New Orleans, 205 U. S. 395 205 Metropolitan S. Ry. Co. v. New York, 199 U. S. 1 337 see also People v. New Y. S. B. of T. Comrs., 199 U. S. 1. Metropolitan T. Co. v. Houston & T. C. R. Co., 90 Fed. 683 305 Meyer v. Wells, Fargo & Co., 223 U. S. 298 205, 376 Michigan C. R. Co. v. Powers, 201 U. S. 245 48, 80, 133, 135, 173, 191, 259 Michigan C. R. Co. v. Vreeland, 227 U. S. 59 11, 13 Milwaukee E. Ry. & L. Co. v. Milwaukee, 87 Fed. 577 316 Minneapolis v. Minneapolis S. Ry. Co., 215 U. S. 417 330, 335, 339 Minneapolis E. Ry. Co. v. Minnesota, 134 U. S. 467 123 Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn., 137 Wis. 80 . 67 Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn., 136 Wis. 146 66, 68, 69, 84, 101, 109, 113, 213 Minneapolis & St. L. R. Co. v. Minnesota, 193 U. S. 53 364 Minneapolis & St. L. R. Co. v. Minnesota, 186 U. S. 257 21, 75, 127, 226, 256, 262, 274, 304, 307, 310, 321 Minnesota Rate Cases, 230 U. S. 352, see Simpson v. Shepard. Minor v. Erie R. Co., 171 N. Y. 566 39 Minor v. Happersett, 21 Wall. 162 174 Mires v. St. Louis & S. F. R. Co., 134 Mo. App. 379 10 Mississippi R. Comn. v. Gulf & S. I. R. Co., 79 Miss. 750 336 Mississippi R. Comn. v. Illinois C. R. Co., 203 U. S. 335 .'^58 Missouri v. Lewis, 101 U. S. 22 130, 169, 182, 263 Missouri, K. & T. Ry, Co. v. Inter. Com. Comn,, 164 Fed. 645 ...303, 310 Missouri, K. & T. Ry, Co. v. Bowles, 1 Ind. Terr. 250 2 Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613 11, 41 Missouri, K. & T. Ry. Co. v. Harriman, 227 U. S. 657 14 Missouri, K. & T. Ry. Co. v. Hickman, 183 U. S. 53 358 INIissouri, K. & T. Ry. Co. v. Love, 177 Fed. 493 285, 286, 289, 290, 293, 294 Missouri, K. & T. Ry. Co. v. May, 194 U, S. 267 158, 259, 261 Missouri, K. &, T. Ry, Co, v. New E, M. Co., 80 Kan. 141 9 Missouri, K. & T, Ry, Co, v. Shannon, 100 Tex, 379 287 Missouri P, Ry, Co, v. Castle, 224 U, S. 541 13 Missouri P. Ry. Co. v. Humes, 115 U. S. 512 116, 120, 140, 159, 178, 204, 210, 249 Missouri P. Ry. Co, v. Kansas, 216 U. S. 262 ... 16, 132, 145, 209, 210 Missouri P, Ry, Co, v, Larabee F, M, Co,, 211 U, S, 612 . . . 5, 13, 36 Missouri P, Ry, Co, v. Nebraska, 217 U, S. 196 122, 139, 229, 239 TABLE OF CASES. 403 RefEBENCES ABE TO PAGES. Missouri P. Ry. Co. v. Nebraska, 164 U. S. 403 123, 239 Missouri P. Ry. Co. v. Smith, 60 Ark. 221 277, 303, 304, 321, 323 Missouri P. Ry. Co. v. Tucker, 230 U. S. 340 57, 122, 128, 208, 227, 232, 264 Missouri P. Ry. Co. v. United States, 189 U. S. 274 109 Missouri Rate Cases, 230 U. S. 474, see Knott v. Chicago, B. & Q. R. Co. Mitchel V. Reynolds, 1 P. Williams, 181 244 Mitchell V. State, 134 Ala. 392 63 Mitchell C. & C. Co. v. Pennsylvania R. Co., 230 U. S. 247 12 Mobile V. Watson, 116 U. S. 289 334, 335 Mobile, J. & K. C. R. Co. v. Mississippi, 210 U. S. 187 13, 40, 48, 134, 332 Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35 61, 209, 211 Mobile & O. R. Co. v. Tennessee, 153 U. S. 486 333, 334 Moffitt V. Kelly, 218 U. S. 400 134 Mondou V. New Y., N. H. & H. R. Co., 223 U. S. 1 . .9, 16, 45, 56, 217, 245 Monongahela B. Co. v. United States, 216 U. S. 177 77, 194, 196 Monongahela N. Co. v. United States, 148 U. S. 312 33, 58, 115, 235, 236, 240, 286, 346 Montana Co. v. St. Louis M. & M. Co., 152 U. S. 160 131, 167 Montana, W. & S. R. Co. v. Morley, 198 Fed. 991 109, 256, 279, 285, 287, 289, 318, 358 Montello, The, 20 Wall. 430, 11 Wall. 411 42 Montezuma C. Co. v. Smithville C. Co., 218 U. S. 371 108, 109 Montgomery v. Portland, 190 U. S. 89 43 Moore v. Missouri, 159 U. S. 673 133 Morgan v. Louisiana, 93 U. S. 217 340 Morgan's L. & T. R. Co. v. Railroad Comn. of La., 127 La. 636 20, 308, 316, 326 Morgan's S. Co. v. Louisiana, 118 U. S. 455 218 Morley v. Lake S. & M. S. Ry. Co., 146 U. S. 162 123 Mormon Church v. United States, 136 U. S. 1 54, 198 Morrill v. Jones, 106 U. S. 466 62 Morrisdale C. Co. v. Pennsylvania R. Co., 230 U. S. 304 8, 12, 109 Morrow v. Wipf, 22 S. D. 146 71 Morton v. Pusey, 237 111. 26 61, 95 Motes V. United States, 178 U. S. 458 368 Mt. Hope Cemetery v. Boston, 158 Mass. 509 237 Mt. Washington Road Co., Petition of, 35 N. H. 134 238 Moyer v. Peabody, 212 U. S. 78 137, 142, 145 Muhlenberg Co. v. Morehead, 20 Ky. L. Rep. 376 52 Muhlker v. New Y. & H. R. Co., 197 U. S. 544 229, 333 MuUan v. United States, 212 U. S. 516 40 Muller V. Oregon, 208 U. S. 412 134, 245 Mumma v. Potomac Co., 8 Pet. 281 346 Muncie N. G. Co. v. Muncie, 160 Ind. 97 39 404 TABLE OF CASES. ReFEBENCES ABE TO PAGES. Municipal Suffrage to Women, In re, 160 Mass. 586 50 Munn V. Illinois, 94 U. S. 113 32, 33, 52, 56, 127, 129, 145, 226, 231, 262, 270, 348 Murray v. Charleston, 96 U. S. 432 335 Murray v. Pocatello, 226 U. S. 318 341 Murray v. Wilson D. Co., 213 U. S. 151 36, 353, 357 Murray's Lessee v. Hoboken L. & I. Co., 18 How. 272 130, 138, 159, 236 Muskrat v. United States, 219 U. S. 346 106, 109, 189, 370, 371 Mutual L. Co. V. Martell, 222 U. S. 225 209, 210, 213, 218, 245, 259, 260 N. Nash V. United States, 229 U. S. 373 110 Nashville, C. & St. L. Ry. Co. v. Alabama, 128 U. S. 96 362 National Bank v. County of Yankton, 101 U. S. 129 54 National C. J. O. U. A. M. v. State Council, 203 U. S. 151 37, 121 National C. O. Co. v. Texas, 197 U. S. 115 133 National Ex. Bank v. Wiley, 195 U. S. 257 122, 204 National Home v. Parrish, 229 U. S. 494 356 National M. B. & L. Assn. v. Brahan, 193 U. S. 635 39, 41, 331, 333 National W. Co. v. Kansas City, 62 Fed. 853 286 Neal V. Delaware, 103 U. S. 370 123, 155 Nebraska, Ex parte, 209 U. S. 436 356 Nebraska T. Co. v. State, 55 Neb. 627 110, 111 Nelson v. United States, 201 U. S. 92 367 New Jersey v. Wilson, 7 Cranch, 164 335 New J. F. E. V. Central R. Co., 2 I. C. C. 84 26 New Mexico v. Denver & R. G. R. Co., 203 U. S. 38 218 New O. G. Co. V. Louisiana L. Co., 115 U. S. 650 218, 330, 334 New O. G. L. Co. v. Drainage Comn., 197 U. S. 453 229 New O. W. Co. V. Louisiana, 185 U. S. 336 331, 346 New O. & N. W. R. Co. v. Vidalia, 117 La. 560 214 Newport & C. B. Co. v. United States, 105 U. S. 470 346 New York v. Hesterberg, 211 U. S. 31 209, 210, 215, 218 New York v. Knight, 192 U. S. 21 34, 35, 44 New York v. Miln, 11 Pet. 102 215 New York v. Squires, 145 U. S. 175 264 New York ex rel. Annan v. Walsh, 143 U. S. 517 32 New York ex rel. Hatch v. Reardon, 204 U. S. 152 177, 205, 257, 328 New Y. C. & H. R. R. Co. v. Board of Chosen Freeholders, 227 U. S. 248 12, 44, 187 New Y. C. & H. R. R. Co. v. Board of Chosen Freeholders, 74 N. J. L. 367 11 New Y. C. & H. R. R. Co. v. Miller, 202 U. S. 584 132, 205 New Y. C. & H. R. R. Co. v. United States, 212 U. S. 481 9 TABLE OF CASES. 405 ReFEBENCES ABE TO PAGES. Mew Y. C. & H. R. R. Co. v. United States (No. 2), 212 U. S. 500 9, 30 New Y. E. R. Co., In re, 70 N. Y. 327 84, 88, 89 New Y., L. E, & W. R. Co. v. Pennsylvania, 158 U. S. 431 17 New Y., L. E. & VV. R. Co. v. Pennsylvania, 153 U. S. 436 205 New Y., N. H. & H. R. Co. v. New York, 165 U. S. 628 262 New Y. & N. E. R. Co. v. Bristol, 151 U. S. 556 • 190, 196, 201 Nielsen v. Oregon, 212 U. S. 315 206 Noble State Bank v. Haskell, 219 U. S. 104 56, 140, 190, 209, 212, 216, 218, 239, 245, 246, 257 Noble State Bank v. Haskell, 219 U. S. 575 270 Noel v. People, 187 HI. 587 . .' 63, 85 Norfolk & S. T. Co. v. Virginia, 225 U. S. 264 230, 256, 314 Norfolk & W. R. Co. v. Pendleton, 156 U. S. 667 339 Norfolk & W. R. Co. v. Pennsylvania, 136 U. S. 114 16, 27 North A. C. S. Co. v. Chicago, 211 U. S. 306 124, 137 North Carolina v. Temple, 134 U. S. 1 355, 356, 357 North Dakota v. Hanson, 215 U. S. 515 218 Northern P. Ry. Co. v. Duluth, 208 U. S. 583 331, 333 Northern P. Ry. Co. v. Keyes, 91 Fed. 47 H, 20, 303, 304, 305 Northern P. Ry. Co. v. Lee, 199 Fed. 621 296, 324, 326 Northern P. Ry, Co. v. Minnesota, 208 U. S. 583 343 Northern P. Ry. Co. v. North Dakota, 216 U. S. 579 295, 325, 376 Northern P. Ry. Co. v. State, 208 U. S. 583 217, 341 Northern P. Ry. Co. v. Washington, 222 U. S. 370 13, 36 Northern S. Co. v. United States, 193 U. S. 197 8, 11, 37, 40 Northwestern N. L. I. Co. v. Riggs, 203 U. S. 243 53, 120, 218, 245 Norton v. Shelby County, 118 U. S. 425 192 Norwood V. Baker, 172 U. S. 269 124, 229, 241 O. O'Brien v. Wheelock, 184 U. S. 450 40 Oceanic N. Co. v. Stranahan, 214 U. S. 320 158, 190 Ochoa v. Hernandez y Morales, 230 U. S. 139 115, 127, 137 Offield V. New Y., N. H. & H. R. Co., 203 U. S. 372 239, 347 Ogden V. Saunders, 12 Wheat. 213 189, 334 Ohio V. Dollison, 194 U. S. 445 110, 115 Ohio Oil Co. V. Indiana, 177 U. S. 190 191, 229 Oklahoma v. Atchison, T. & S. F. Ry. Co., 220 U. S. 277 54 Old C. T. Co. V. Omaha, 230 U. S. 100 134 Old D. S. Co. V. Gilmore, 207 U. S. 398 5 Old D. S. Co. V. Virginia, 198 U. S. 299 34 Old W. M. L. Assn. v. McDonough, 204 U. S. 8 122, 137, 206 Olmsted v. Olmsted, 216 U. S. 386 206 Olsen v. Smith, 195 U. S. 332 5, 133 406 TABLE OF CASES. References abe to Pages. Omaha v. Omaha W. Co., 218 U. S. 180 285 Omaha W. Co. v. Omaha, 147 Fed. 1 336, 345 Omaha & C. B, S. Ry. Co. v. Interstate Com. Comn., 230 U. S. 324 374 O'Neil V. American F. I. Co., 166 Fa. 72 63 O'Neil V. Vermont, 144 U. S. 323 231, 241, 265, 368 Opinion of the Justices, 74 N. H. 606 95 Opinion of the Justices, 138 Mass. 601 50 Oregon v. Hitchcock, 202 U. S. 60 358 Oregon R. & N. Co. v. Campbell, 173 Fed. 958 50, 66 Oregon R. & N. Co. v. Fairchild, 224 U. S. 510 123, 139, 212 Orient Ins. Co. v. Board of Assessors, 221 U. S. 358 205 Orient Ins. Co. v. Daggs, 172 U. S. 557 140, 259 Orr V. Oilman, 183 U, S. 278 134, 173 Orrick v. City of Ft. Worth, 52 Tex. Civ. App. 308 89 Osborn v. United States, 9 Wheat. 738 357 Osborne v. San Diego L. & T. Co., 178 U. S. 22 110, 344 Oshkosh W. Co. v. Oshkosh, 187 U. S. 437 331 Otis V. Parker, 187 U. S. 606 210 Otis Co. V. Ludlow M. Co., 201 U. S. 140 122, 139, 173, 239 Ouachita P. Co. v. Aiken, 121 U. S. 444 33 Owensboro v. Cumberland T. & T. Co., 230 U. S. 58 330, 335, 339, 343, 346 Owensboro v. Cumberland T. & T. Co., 174 Fed. 739 316 Owensboro v. Owensboro W. Co., 191 U. S. 358 128, 336, 337, 338 Owensboro W. Co. v. Owensboro, 200 U. S. 38 125, 132, 214 Owensboro & N. R. Co., v. Todd, 91 Ky. 175 87 Oyster Police Steamers, 31 Fed. 763 42 Ozan L. Co. v. Union C. N. Bk., 207 U. S. 251 258 Ozark-Bell T. Co. v. City of Springfield, 140 Fed. 666 .124, 316 P. Pacific C. Ry. Co. v. United States, 173 Fed. 448 27 Pacific C. S. Co, V. Board of R. Comrs., 18 Fed. 10 10 Pacific G. I. Co. V. Ellert, 64 Fed. 421 124 Pacific R. Co. V. Leavenworth, 1 Dill. 393 39 Pacific R. Co. V. Maguire, 20 Wall. 36 330 Packet Co. v. Catlettsburg, 105 U. S. 559 33, 108 Packet Co. v. Keokuk, 95 U. S. 80 375 Paddell v. New York, 211 U. S. 446 173, 216, 257 Palmer v. Texas, 212 U. S. 118 133 Pannell v. Louisville T. W. Co., 113 Ky. 630 303, 304 Parham v. The Justices, 9 Ga. 341 235 Parker v. Metropolitan R. Co., 109 Mass. 506 345 Parkersburg v. Brown, 106 U. S. 487 239 Parsons v. Bedford, 3 Pet, 433 363 TABLE OF CASES. 407 ReFEBENCES ABE TO PAGES. Passenger Cases, 7 How. 283 5, 10, 43 Patterson v. Bark Eudora, 190 U. S. 169 115 Patterson v. Colorado, 205 U. S. 454 132, 133, 145, 177, 191, 241 Patton V. Brady, 184 U. S. 608 191, 209 Paul V. Gloucester County, 50 N. J. L. 585 50, 51, 214 Paulsen v. Portland, 149 U. S. 30 131 Payne & Butler v. Providence G. Co., 31 E. I. 295 97 Pearsall v. Great N. Ry. Co., 161 U. S. 646 337, 338, 343 Pearson v. Yewdall, 95 U. S. 294 363 Peck V. Weddell, 17 Ohio St. 271 87 Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 45, 364 Peik V. Chicago & N. W. Ry. Co., 94 U. S. 164 75, 226 Pennington v. Woolfolk, 79 Ky. 13 52 Pennoyer v. McConnaughy, 140 U. S. 1 357, 358 Pennoyer v. Neff, 95 U. S. 714 137, 206 Pennsylvania v. Wheeling & B. B. Co., 18 How. 421 349, 352 Pennsylvania R. Co. v. International C. M. Co., 230 U. S. 184 12, 374 Pennsylvania R. Co. v. Knight, 192 U. S. 21 34, 35, 44 Pennsylvania R. Co. v. Miller, 132 U. S. 75 338 Pennsylvania R. Co. v. Philadelphia County, 220 Pa. 100 135, 278, 305, 311, 312, 317, 327, 346 Pensacola & A. R. Co. v. State, 25 Fla. 310 109, 316, 323 People v. Ahearn, 193 N. Y. 441 61 People v. Board of Election Comrs., 221 111. 9 63, 71 People V. Budd, 117 N. Y. 1 32 People V. City of Butte, 4 Mont. 174 89, 90 People V. Cook, 147 Mich. 127 48 People V. Daniels, 6 Utah, 288 214 People V. Delaware & H. C. Co., 32 N. Y. App. Div. 120 85 People V. Dunn, 80 Cal. 211 95, 96 People V. Fire Assn. of Phila., 92 N. Y. 311 86, 89 People V. Grand T. W. Ry. Co., 232 111. 292 97 People V. Harper, 91 111. 357 51, 65, 70, 84 People V. Hayne, 83 Cal. Ill 61 People V. Healy, 231 111. 629 62 People V. Hoffman, 116 III. 587 89 People V. Hurlburt, 24 Mich. 44 49 People V. Knight, 67 N. Y. App. Div. 398, 171 N. Y. 354 34 People v. McBride, 234 111. 146 88 People v. Miller, 202 U. S. 584 132, 205 People V. New Y. S. B. of T. Comrs., 199 U. S. 1 263, 287, 337 People V. New Y. S. B. of T, Comrs., 199 U. S. 48 113, 179 People V. Piatt, 17 Johns. 195 236 People V. Provines, 34 Cal. 520 51 People V. Public Service Comn., 153 N. Y. App, Div. 129 311, 324, 345 People V. Reardon, 124 N. Y. App. Div. 818 366 408 TABLE OF CASES. ReTEBENCES ABE TO PAGES. People V. Reid, 151 N. Y. App. Div. 324 82 People V. Reynolds, 5 Gil. (111.) 1 90 People V. Suburban R. Co., 178 111. 594 39 People V. Tompkins, 186 N. Y. 413 187 People V. Van de Carr, 199 U. S. 552 124, 177, 178, 209, 210 People ex rel. Central P., N. & E. R. Co. v. Willcox, 194 N. Y. 383 . .59, 111 People's G. L, & C. Co. v. Chicago, 194 U. S. 1 128, 340 People's G. L. & C. Co. v. Hale, 94 111. App. 406 110 Peoria G. & E. Co. v. Peoria, 200 U. S. 48 230 Perry Co, v. Norfolk, 220 U. S. 472 333, 337 Peters v. Broward, 222 U. S. 483 133 Peters v. Gilchrist, 32 Sup. Ct. 122 133 Petition of Mt. Washington Road Co., 35 N. H. 134 236 Pfahler, In re, 150 Cal. 71 50 Philadelphia, B. & W. R. Co. v. Schubert, 224 U. S. 603 30, 329, 345 Philadelphia Company v. Stimson, 223 U. S. 605 358 Phoenix I. Co. v. Perkins, 19 S. D. 59 63 Phoenix I. Co. v. Welch, 29 Kan. 672 86 Picton V. Cass County, 13 N. D. 242 89, 90, 96 Pierce v. Doolittle, 130 Iowa, 333 51, 83 Pilkey v. Gleason, 1 Iowa, 522 63 Pingree v. Michigan C. R. Co., 118 Mich. 314 336 Pinney v. Nelson, 183 U. S. 144 331 Pioneer T. & T. Co. v. Westenhaver, 29 Okla. 429 275, 278, 279, 283, 285, 286, 291, 311, 312 317 Pittman v. Byars, 51 Tex. Civ. App. 83 117, 118 Pittsburgh, Appeal of City of, 115 Pa. 4 39 Pittsburgh, C, C. & St. L. Ry. Co. v. Backus, 154 U. S. 421 179 Planters' I. Co. v. Tennessee, 161 U. S. 193 332, 340 Plessy V. Ferguson, 163 U. S. 537 115, 217, 252 Plinkiewisch v. Portland Ry., L. & P. Co., 58 Ore. 499 50 Poindexter v. Greenhow, 114 U. S. 270 334, 358, 375 Polk V. Mutual R. F. L. Assn., 207 U. S. 310 180, 345, 346 Pollock V. Farmers' L. 4; T. Co., 158 U. S. 601 375 Portland Ry., L. & P. Co. v. Portland, 201 Fed. 119 264, 331, 341, 343, 345 V. Portland, 200 Fed. 890 124, 345 V. R. Comn. of Oregon, 229 U. S. 397 132, 271, 364, 372 Portland & O. C. R. Co. v. Grand T. Ry. Co., 46 Me. 69 66 Porto Rico V. Rosaly, 227 U. S. 270 353 Potter V. Calumet E. S, Ry. Co., 158 Fed. 521 39 Pound V. Turck, 95 U. S. 459 5 Powell V. Pennsylvania, 127 U. S. 678 190, 247 Powers V. United States, 223 U. S. 303 366 Prentis v. Atlantic C. L. Co., 211 U. S. 210 . .48, 59, 105, 106, 122, 123, 129 Portland Ry,, L. & P. Co. Portland Ry., L. & P. Co. TABLE OF CASES. 409 ReFEBENCES ABE TO PAGES. Presser v. Illinois, 116 U. S. 252 376 Preston v. Chicago, 226 U. S. 447 134 Prigg V. Pennsylvania, 16 Pet. 539 374 Proctor & Gamble Co. v. United States, 225 U. S. 282 109, 111, 112 Proprietors of Mt. Hope Cemetery v. Boston, 158 Mass. 509 237 Prout V. Starr, 188 U. S. 537 117, 123, 139, 358 Providence Bank v. Billings, 4 Pet. 514 173, 337 Puget S. E. Ry. v. Railroad Comn., 65 Wash. 75 307, 310, 311, 312, 316, 325, 328 Pullman Co. v. Kansas, 216 U. S. 56 16, 39, 41, 42, 121, 122, 139, 205 Pullman's P. C. Co. v. Pennsylvania, 141 U. S. 18 27 Pumpelly v. Green B. & M. C. Co., 13 Wall. 166 235, 236 Purdy V. Erie R. Co., 162 N. Y. 42 39 Purity E. & T. Co. v. Lynch, 226 U. S. 192 30, 190 Q. Quong Wing v. Kirkendall, 223 U. S. 59 178, 209, 210, 259 R. Rahrer, In re, 140 U. S. 545 24, 51, 79, 80 Railroad Co. v. Fuller, 17 Wall. 560 13, 218 Railroad Co. v. Jackson, 7 Wall. 262 205 Railroad Co. v. McClure, 10 Wall. 511 330 Railroad Co. v. Maryland, 21 Wall. 456 11, 27 Railroad Co. v. Richmond, 96 U. S. 521 214, 263, 270 Railroad Companies v. Gaines, 97 U. S. 697 340 Railroad Commission Cases, 116 U. S., see Stone v. Farmers' L. & T. Co.; Stone v. Illinois C. R. Co.; Stone V. Yazoo & M. V. R. Co. Railroad Comn. v. Houston & T. C. R. Co., 90 Tex. 340 Ill Railroad Comn. v. Weld & Neville, 96 Tex. 394 Ill Railroad Comn. of La. v. Cumberland T. & T. Co., 212 U. S. 414 123, 139, 190, 226, 230, 256, 274, 306, 309, 317 Railroad Comn. of La. v. Texas & P. Ry. Co., 229 U. S. 336 26 Railroad Comn. of Ohio v. Worthington, 225 U. S. 101 11, 25 Ralls County Court v. United States, 105 U. S. 733 334, 335 Randall v. Kreiger, 23 Wall. 137 48 Rankin v. Emigh, 218 U. S. 27 364 Rankin County v. Davis, 102 Miss., 50 So. 811 88, 89 RatcliflF V. Wichita U. S. Co., 74 Kan. 1 53 Rawlins v. Georgia, 201 U. S. 638 131, 133, 207 Raymond v. Chicago U. T. Co., 207 U. S. 20 . . . . 122, 123, 124, 139, 177, 254 410 TABLE OF CASES. ReFEEENCES ABE TO PAGES. Reagan v. Farmers' L. & T. Co., 154 U. S. 362 57, 75, 76, 109, 123, 127, 128, 136, 232, 256, 261, 274, 276, 287, 300, 301, 303, 306 309, 310, 314, 338, 349, 358, 376 Reagan v. Mercantile T. Co., 154 U. S. 413 36, 128, 136, 256 Rearick v. Pennsylvania, 203 U. S. 507 25 Rebecchi, In re, 100 N. Y. Supp. 335 279 Red "C" 0. M. Co. v. Board of Agriculture, 222 U. S. 380 77, 82, 180, 190, 209 Reetz V. Michigan, 188 U. S. 505 138 Rex V. Kilderby, 1 Saund. 312 244 Rhode Island v. Massachusetts, 12 Pet. 657 374 Riverside & A. Ry. Co. v. Riverside, 118 Fed. 736 124 Road Imp. Dist. v. Glover, 89 Ark. 513 105 Robbins v. Shelby Taxing Dist., 120 U. S. 489 5 Robertson v. Baldwin, 165 U. S. 275 118, 173 Robert W. Parsons, The, 191 U. S. 17 34, 43, 44 Robinson v. Baltimore & O. R. Co., 222 U. S. 506 12 Robinson v. Harmon, 157 Mich. 266, 276 39 Rochester Ry. Co. v. Rochester, 205 U. S. 236 339 Rockaway, The, 156 Fed. 692 43 Rogers v. Alabama, 192 U. S. 226 255 Rogers v. Peck, 199 U. S. 425 145, 200 Rogers P. W. Co. v. Fergus, 180 U. S. 624 337, 341, 342 Roller V. Holly, 176 U. S. 398 137 Rose V. State, Ala., 40 So. 951 63 Rosenbaum G. Co. v. Chicago, R. I. & T. Ry. Co., 130 Fed. 46 11, 24 Rosenthal v. New York, 226 U. S. 261 258, 259 Ross V. Duval, 13 Pet. 45 93 Ross V. Oregon, 227 U. S. 150 59, 132 Ross V. Whitman, 6 Cal. 361 50 Rouse V. Thompson, 228 111. 522 81, 82 Ruggles V. Illinois, 108 U. S. 526 127, 337, 338 Rusch V. John Duncan L. & M. Co., 211 U. S. 526 133 Rushville v. Rushville N. G. Co., 164 Ind. 162 336, 338 Ryan v. Outagamie County, 80 Wis. 336 96 S. St. Clair County v. Interstate S. & C. T. Co., 192 U. S. 454 11, 38 St. John V. New York, 201 U. S. 633 260 St. Louis V. United Rys. Co., 210 U. S. 266 337 St. Louis C. C. Co. V. Illinois, 185 U. S. 203 80 St. Louis, I. M. & S. Ry. Co. v. Davis, 132 Fed. 629 141 St. Louis, I. M. & S. Ry. Co. v. Edwards, 227 U. S. 265 15 St. Louis, I. M. & S. Ry. Co. v. Hesterly, 228 U. S. 702 11, 41 St. Louis, L M. & S. Ry. Co. v. Neal, 83 Ark. 591 84, 95 TABLE OF CASES. 411 ReFEBENCES ABE TO PAGES. St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281 56, 76, 82, 84, 95, 132, 145, 190 St. Louis, I. M. & S. Ry. Co. v. Wynne, 224 U. S. 354 144, 145 St. Louis M. B. T. Ry. Co. v. United States, 188 Fed. 191 63 St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156 11, 32 St. Louis S. W. Ry. Co. v. Arkansas, 217 U. S. 136 14 St. Louis & M. R. Co. v. Kirkwood, 159 Mo. 239 39 St. Louis & S. F. R. Co. v. Hadley, 168 Fed. 317 10, 16, 19, 135, 293, 316, 364, 377 St. Louis & S. F. Ry. Co. v. Gill, 156 U. S. 649 76, 127, 232, 261, 321, 323, 339 St. Louis & S. F. Ry. Co. v. Gill, 54 Ark. 101 37, 321, 323 St. Louis & S. F. Ry, Co. v. State, 87 Ark. 562 10 St. Louis & S. F. Ry. Co. v. Stevenson, 156 U. S. 667, 54 Ark. 116 . . 36 St. Mary's F.-A. P. Co. v. West Virginia, 203 U. S. 183 121, 134, 191, 217, 264 St. Paul G. L. Co. V. St. Paul, 181 U. S. 142 331 Sabre v. Rutland R. Co., Vt., 85 Atl. 693 50 Saddler, In re, Okla., 130 Pac. 906 61 Salt R. V. C. Co. V. Nelssen, 10 Ariz. 9 56, 109, 324 San Antonio T. Co. v. Altgelt, 200 U. S. 304 331, 339, 345 Sand F. Corp. v. Cowardin, 213 U. S. 360 118 San Diego L. & T. Co. v. Jasper, 189 U. S. 439 59, 109, 179, 273, 276, 280, 299 San Diego L. & T. Co. v. National City, 174 U. S. 739 39, 57, 128, 136, 189, 228, 230, 233, 273, 276, 277, 281 San Diego L. & T. Co. v. National City, 74 Fed. 79 39 San Diego W. Co. v. San Diego, 118 Cal. 556 311 Sands v. Manistee R. I. Co., 123 U. S. 288 16, 43 San Francisco N. Bk. v. Dodge, 197 U. S. 70 287 San J. & K. R. C. & I. Co. v. Stanislaus County, 191 Fed. 875 275, 279 Santa Fe, P. & P. Ry. Co. v. Grant Bros. C. Co. 228 U. S. 177 14 Satterlee v. Matthewson, 2 Pet. 380 47, 48, 196, 201, 236 Sauer v. New York, 206 U. S. 536 145, 169, 190, 229 Savage v. Jones, 225 U. S. 501 36 Savannah, T. & I. of H. Ry. v. Savannah, 198 U. S, 392 123, 263 Savings Banks v. Weeks, 103 Md. 601 207 Sawyer v. Dooley, 21 Nev. 390 47 Sawyer v. United States, 202 U. S. 150 366 Saxton Nat. Bank v. Carswell, 126 Mo. 436 141 Scammon v. Kansas C, St. J. & C. B. R. Co., 41 Mo. App. 194 11 Schaake v. Dolley, 85 Kan. 598 67, 84, 96 Schaezlein v. Cabaniss, 135 Cal. 466 83 Schick V. United States, 195 U. S. 65 40, 118, 168, 362, 372 Schmidinger v. Chicago, 226 U. S. 578 209, 210, 245, 258 Scholle V. State, 90 Md. 729 82 412 TABLE OF CASES. Eefebences are to Pages. Schollenberger v. Pennsylvania, 171 U. S. 1 25, 219 Schulherr v. Bordeaux, 64 Miss. 59 89 Scotland County Court v. United States, 140 U. S. 41 335 Scott V. City of Toledo, 36 Fed. 385 139, 230, 235, 237, 238 Scott V. McNeal, 154 U. S. 34 122, 137, 184, 206, 208 Scott V. Marley, 124 Tenn. 388 95 Scully V. Bird, 209 U. S. 481 358 Seaboard A. L. Ry. v. Florida, 203 U. S. 261 21, 127 Seaboard A. L. Ry. v. Seegers, 207 U. S. 73 134 Seaboard A. L. Ry. Co. v. R. Comn. of Ala., 155 Fed. 792 20, 266, 309, 316, 339, 358 Searl v. School Dist., 133 U. S. 553 236 Seattle v. Kelleher, 195 U. S. 351 179 Second Employers' Liability Cases, 223 U. S. 1, see Mondou v. New Y., N. H. & H. R. Co. Security M. L. Ins. Co. v. Prewitt, 202 U. S. 246 40, 41, 42 Seibert v. Lewis, 122 U. S. 284 335 Selliger v. Kentucky, 213 U. S. 200 122, 139, 205 Selover, Bates & Co. v. Walsh, 226 U. S. 112 121, 132, 205, 256 Senate Bill, In re, 12 Colo. 188 96 Sharpless v. Mayor of Philadelphia, 21 Pa. St. 147 202, 211 Shawnee S. & D. Co. v. Stearns, 220 U. S. 462 124, 331 Sheets v. Toledo H. T. Co., 72 Ohio St. 60 Ill Shepard v. Northern P. Ry. Co., 184 Fed. 765 . .276, 279, 290, 293, 304, 317 Shephard v. City of Wheeling, 30 W. Va. 479 47, 59 Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57 190 Shibuya Jugiro, In re, 140 U. S. 291 255 Shields v. Ohio, 95 U. S. 319 339, 340 Shively v. Bowlby, 152 U. S. 1 54 Siebold, Ex parte, 100 U. S. 371 191 Siler V. Louisville & N. R. Co., 213 U. S. 175 62, 376 Simon v. Craft, 182 U. S. 427 139 Simons' Sons Co. v. Maryland T. & T. Co., 99 Md. 141 39 Simpson v. Shepard, 230 U. S. 352 5, 20, 21, 33, 188, 230, 273, 274, 276, 279, 280, 281, 283, 284, 288, 290, 292, 293, 298, 301, 304, 312, 314, 317, 321, 324, 375, 376, 377 Singer S. M. Co. v. Benedict, 229 U. S. 481 363 Sinking Fund Cases, 99 U. S. 700 189, 372 Sinnickson v. Johnson, 17 N. J. L. 129 235 Slaughter House Cases, 16 Wall. 36 52, 56, 134, 173, 195, 196, 199, 200, 202, 214, 247, 249, 252 Slinger v. Henneman, 38 Wis. 504 50 Sloan V. Pacific R., 61 Mo. 24 336 Slocum V, New Y. L. I. Co., 228 U. S. 364 93, 364 Smiley v. Kansas, 196 U. S. 447 204, 245 Smith V. Indiana, 191 U. S. 138 371 TABLE OF CASES. 413 References abe to Pages. Smith V. Jennings, 206 U. S. 276 132 Smith V. Reeves, 178 U. S. 436 355 Smith V. State Board of Med. Examrs., 140 Iowa, 66 61 Smithsonian Inst. v. St. John, 214 U. S. 19 134 Smyth V. Ames, 169 U. S. 466 16, 20, 21, 36, 120, 122, 127, 226, 230, 232, 241, 256, 274, 275, 277, 298, 299, 300, 310, 314, 321, 322, 323, 324, 358 Smyth V. Ames, 171 U. S. 361 127, 128, 226, 230, 233, 241, 261, 274, 275, 282, 312, 322, 323, 324 Snell V. Chicago, 133 111. 413 339 Soliah V. Cormack, 17 N. D. 393 84 Soliah V. Heskin, 222 U. S. 522 81 Soon Hing v. Crowley, 113 U. S. 703 180 Soper V. Lawrence Bros. Co., 201 U. S. 359 132 South Carolina v. Georgia, 93 U. S. 4 349, 352 South Dakota v. North Carolina, 192 U. S. 286 354 South Carolina v. United States, 199 U. S. 437 36, 373 Southern Ex. Co. v. Goldberg, 101 Va. 619 14 Southern Ex. Co. v. Memphis & L. R. R. Co., 8 Fed. 799 109 Southern I. Ry. Co. v. Railroad Comn., 172 Ind. 113 60, 258, 263, 316 Southern P. Co. v. Bartine, 170 Fed. 725 281 Southern P. Co. v. Board of R. Comrs., 78 Fed. 236 136, 303, 306, 307, 315, 321 Southern P. Co. v. Campbell, 230 U. S. 537 113, 132, 264, 296, 324, 338, 375 Southern P. Co. v. Colorado F. & I. Co., 101 Fed. 779 Ill Southern P. Co. v. Interstate Com. Comn., 219 U. S. 433 62, 104, 111, 113, 371 Southern P. Co. v. Kentucky, 222 U. S. 63 205 Southern P. Co. v. Portland, 227 U. S. 559 39, 346 Southern P. T. Co. v. Interstate Com. Comn., 219 U. S. 498 9, 25, 26, 32, 33, 371 Southern Ry. Co. v. Burlington L. Co., 225 U. S. 99 15 Southern Ry. Co. v. Greene, 216 U. S. 400 41, 121, 253, 254, 256, 260 Southern Ry. Co. v. Hunt, 42 Ind. App. 90 65, 70, 262, 263, 265 Southern Ry. Co. v. King, 217 U. S. 524 13 Southern Ry. Co. v. McNeill, 155 Fed. 756 316 Southern Ry. Co. v. Reid, 222 U. S. 424 13,15, 36 Southern Ry. Co. v. Reid & Beam, 222 U. S. 444 14, 15, 36 Southern Ry. Co. v. St. Louis H. & G. Co., 214 U. S. 297 314 Southern Ry. Co. v. Tift, 206 U. S. 428 12, 66, 108 Southern Ry. Co. v. United States, 222 U. S. 20 27, 45 South Pasadena v. Los Angeles T. Ry. Co., 109 Cal. 315 39 Southwestern Oil Co. v. Texas, 217 U. S. 114 134, 191, 328, 370 Spencer, In the Matter of, 228 U. S. 652 371 Sperry & Hutchinson Co. v. Rhodes, 220 U. S. 502 178, 258 414 TABLE OF CASES. RkFEBENCES ABE TO PAGES. Spiegler v. City of Chicago, 216 111. 114 84 Spokane v. Camp, 50 Wash. 554 87 Spraigue v. Thompson, 118 U. S. 90 375 Springer v. United States, 102 U. S. 586 191 Springville v. Thomas, 166 U. S. 707 363 Spring V. W. v. Bartlett, 16 Fed. 615 338 Spring V. W. Co. v. San Francisco, 165 Fed. 667 277, 279, 280, 285, 287, 303, 315 Spring V. W. v. San Francisco, 192 Fed. 137 316 Spring V. W. v. San Francisco, 165 Fed. 657 275 Spring V. W. v. San Francisco, 124 Fed. 574 ....123, 124, 129, 179, 316 Spring V. W. v. Schottler, 110 U. S. 347 231, 338, 345 Sprintz v. Saxton, 125 N. Y. App. Div. 908 61 Standard Oil Co. v. Missouri, 224 U. S. 270 138, 225 Standard Oil Co. v. Tennessee, 217 U. S. 413 133 Standard Oil Co. v. United States, 221 U. S. 1 110, 118, 188, 195 Stanislaus County v. San J. & K. R. C. & I. Co., 192 U. S. 201 262, 273, 276, 315, 336, 337, 339, 345 State V. , 1 Hayw. (N. C.) 28 167, 182 State V. Adams Ex. Co., 66 Minn. 271 61 State V. Adams Ex. Co., 85 Neb. 25 309 State V. Armstrong, 91 Miss. 513 52 State V. Atchison, T. & S. F. Ry. Co., 176 Mo. 687 37 State V. Atlantic C. L. R. Co., 48 Fla. 146 21 State V. Atlantic C. L. R. Co., 56 Fla. 617 68 State V. Atlantic C. L. R. Co., 64 Fla., 60 So. 186 189 State V. Barrett, 138 N. C. 630 61 State V. Barringer, 110 N. C. 525 96 State V. Bates, 96 Minn. 110 47, 50 State V. Bonneval, 128 La. 902 327 State V. Briggs, 45 Ore. 366 82 State V. Bryan, 50 Fla. 293 84, 95 State V. Budge, 14 N. D. 532 63 State V. Burdge, 95 Wis. 390 83, 95 State V. Chicago, M. & St. P. Ry. Co., 38 Minn. 281 65, 68, 69, 71 State V. Chittenden, 127 Wis. 468 82 State V. Cincinnati, N. O. & T. P. Ry. Co., 47 Ohio St. 130 38 State V. City of Mankato, 117 Minn. 458 51 State V. Converse, 40 Utah, 119 Pac. 1030 61 State V. Cooley, 65 Minn. 406 89 State V. Corvallis & E. R. Co., 59 Ore. 450 67, 95 State V. Crombie, 107 Minn. 16G 82 State V. Donovan, Wash., 130 Pac. 356 50 State V. Fairchild, 224 U. S. 510 123 State V. Felton, 77 Ohio St. 554 71 State V. Field, 17 Mo. 529 63 TABLE OF CASES. 415 ReFEBENCES ABE TO PAGES. State V. Fountain, 6 Pennewill (Del.) 520 53, 89 State V. Frear, 146 Wis. 291 95 State V. Freemont, E. & M. V. R. Co., 23 Neb. 117, 22 Neb. 313 66 State V. Gardner, 58 Ohio St. 599 82 State V. Gaster, 45 La. An. 636 63, 110 State V. Gaunt, 13 Ore. 115 63 State V. Great N. Ry. Co., 100 Minn. 445 63, 67 State V. Great N. Ry. Co., 17 N. D. 370 327 State V. Great N. Ry. Co., 68 Wash. 257 96 State V. Great N. Ry. Co., 43 Wash. 658 325 State V. Hagood, 30 S. C. 519 97 State V. Heinemann, 80 Wis. 253 82 State V. Holland, 37 Mont. 393 95 State V. Hudson Co. Ave. Comrs., 37 N. J. L. 12 96 State V. Hunter, 38 Kan. 578 89 State V. Johnson, 61 Kan. 803 47, 59, 106, 109 State V. Keener, 78 Kan. 649 52 State V. Kenosha E. Ry. Co., 145 Wis. 337 67, 84 State V. Kline, 50 Ore. 426 48, 89, 90 State V. Loden, 117 Md. 373 82 State V. Loomis, 115 Mo. 307 255 State V. Louisville & N. R. Co., 62 Fla. 315 325 State V. McCarty, 5 Ala. Ap. 212 83, 95 State V. Mankato, 117 Minn. 458 51 State V. Messenger, 53 Ohio St. 398 85 State V. Minneapolis & St. L. R. Co., 80 Minn. 191 66, 75, 274, 307 State V. Missouri P. Ry. Co., 76 Kan. 467 53, 66, 96, 325, 326 State V. Montgomery, 176 Ala., 59 So. 294 87, 90 State V. Moores, 55 Neb. 480 53 State V. New Haven & N. Co., 43 Conn. 351 87 State V. New Y. & N. E. R. Co., 59 Conn. 63 95 State V. Noble, 118 Ind. 350 61 State V. Omaha E. Co., 75 Neb. 654 32 State V. Omaha & C. B. Ry. & B. Co., 113 Iowa, 30 39 State V. O'Neill, 24 Wis. 149 89 State V. Parker, 26 Vt. 357 89 State V. Pierre, 121 La. 465 49, 61 State V. Pond, 93 Mo. 606 89 State V. Potello, 40 Utah, 119 Pac. 1023 61 State V. Preferred T. M. Co., 184 Mo. 160 96 State V. Rasmussen, 7 Idaho, 1 83 State V. Rogers, 71 Ohio St. 203 63 State V. Sammons, 62 Fla. 303 88 State V. Sanders 130 La. 272 50 State V. Savage, 65 Neb. 714 290 State V. Seaboard A. L. Ry., 48 Fla. 129 20, 21 416 TABLE OF CASES. References abe to Pages. State V. Sherow, 87 Kan. 235 95 State V. Snyder, 131 La. 145 83 State V. Southern Ry. Co., 141 N. C. 846 83 State V. Storey, 51 Wash. 630 84, 87 State V. Struble, 19 S. D. 646 50, 61 State V. Sutton, 84 N. J. L., 84 Atl. 1057 258, 316, 327 State V. Texas Sl N. O. R. Co., 103 S. W. 653 110 State V. Thompson, 160 Mo. 333 82 State V. United States Ex. Co., 81 Minn. 87 21 State V. Ure, 91 Neb. 31 52, 89 State V. Vickens, 186 Mo. 103 83 State V. Wagener, 77 Minn. 483 95 State V. Wolf, 145 N. C. 440 60 State Bank v. Knopp, 16 How. 369 333 State Comn. in Lunacy v. Welch, 129 Pac. 974 108 State ex rel. Ellis v. Atlantic C. L. R. Co., 51 Fla. 578 62 State ex rel. Hunt v. Tausick, 64 Wash. 69 50, 89 State ex rel. Minneapolis, St. P. & S. S. M. Ry. Co. v. Railroad Comn., 137 Wis. 80 67 State ex rel. Sheets v. Toledo H. T. Co., 72 Ohio St. 60 Ill State ex rel. Webster v. Superior Court, 67 Wash. 37 65, 69 State ex rel. Wilkinson v. Lane, Ala., 62 So. 31 52 State Tax on Foreign-held Bonds, 15 Wall. 300 205, 334 Staude v. Election Comrs., 61 Cal. 313 52 Steenerson v. Great N. Ry. Co., 69 Minn. 353 57, 111, 275, 276, 279, 281, 292, 297, 307, 308, 312, 315, 318, 321 Stern v. Metropolitan T. & T. Co., 46 N. Y. Supp. 110 55 Stevens v. Griffith, 111 U. S. 48 331 Stevens v. Truman, 127 Cal. 155 61 Stewart v. Comer, 100 Ga. 754 14 Stickney v. Interstate Com. Comn., 164 Fed. 638 112 Stickney v. Kelaey, 209 U. S. 419 132 Stone V. Farmers' L. & T. Co., 116 U. S. 307 13, 16, 73, 74, 127, 231, 232, 299, 337, 338 Stone V. Illinois C. R. Co., 116 U. S. 347 16, 73, 74, 128, 338 Stone V. Natchez, J. & C. R. Co., 62 Miss. 646 73, 74 Stone V. Wisconsin, 94 U. S. 181 345 Stone V. Yazoo & M. V. R. Co., 62 Miss. 607 65, 73 Storrs V. Pensacola & A. R. Co., 29 Fla. 617 65 Stoutenburgh v. Hennick, 129 U. S. 141 2, 50, 51, 79 Strassheim v. Daily, 221 U. S. 280 206 Strauder v. West Virginia, 100 U. S. 303 255 Strickley v. Highland B. G. M. Co., 200 U. S. 527 239 Strough V. New Y. C. & H. R. R. Co., 181 N. Y. 533, 92 N. Y. App. Div. 584 14 Sturges v. Crowninshield, 4 Wheat. 122 215, 330, 334 TABLE OF CASES. 417 ReFEBENCES ABE TO PAGES. Sullivan v. Texas, 207 U. S. 416 333 Sumpter v. State, 81 Ark. 60 167 Susquehanna C. Co. v. South Amboy, 228 U. S. 665 23 Sutherland v. Governor, 29 Mich. 320 57, 225 Sweet V. Rechel, 159 U. S. 380 145, 236 Swift & Co. V. United States, 196 U. S. 375 24, 34, 35 Swigart v. Baker, 229 U. S. 187 108 Talbot V. Fidelity & C. Co., 74 Md. 536 86 Tallassee F. M. Co. v. Commissioners' Court, 158 Ala. 263 65 Tarrance v. Florida, 188 U. S. 519 255 Taylor v. United States, 207 U. S. 120 360 Taylor and Marshall v. Beckham, 178 U. S. 548 140, 155, 178, 245 Telegraph Co. v. Texas, 105 U. S. 460 16 Terre Haute v. Evansville & T. H. R. Co., 149 Ind. 174 52 Terrett v. Taylor, 9 Cranch. 43 196, 201, 330, 334 Territory of New Mexico v. Denver & R. G. R. Co., 203 U. S. 38 218 Terry v. Anderson, 95 U. S. 628 217 Terry, Ex parte, 128 U. S. 289 362 Texas & N. O. R. Co. v. Miller, 221 U. S. 408 217, 343 Texas & N. 0. R. Co. v. Sabine T. Co., 227 U. S. Ill 2, 11, 26, 29 Texas & P. Ry. Co. v. Abilene C. O. Co., 204 U. S. 426 . .9, 12, 56, 57, 110 Texas & P. Ry. Co. v. Cisco Oil Mill, 204 U. S. 449 9, 14 Texas & P. Ry. Co. v. Interstate Com. Comn., 162 U. S. 197 ..26, 72, 103 Texas & P. Ry. Co. v. Mugg & Dryden, 202 U. S. 242 14, 30 Texas & P. Ry. Co. v. R. Comn. of La., 192 Fed. 280 277 Thalheimer v. Board of Suprs., 11 Ariz. 430 89 The Abby Dodge, 223 U. S. 166 2, 372 The Case of Captain Streater, 5 How. St. Trials, 365 52, 166 The Chinese Exclusion Case, 130 U. S. 581 180 The City of Salem, 38 Fed. 762 43 The Daniel Ball, 10 Wall. 557 27, 28, 43 The Gretna Green, 20 Fed. 901 43 The Hamilton, 207 U. S. 398 5, 206 The Hazel Kirke, 25 Fed. 601 43 The Lottawanna, 21 Wall. 558 44, 54, 57, 168 The Louisa Simpson, 2 Sawyer, 57 78 The Montello, 20 Wall. 430, 11 Wall. 411 42 The Oyster Police Steamers, 31 Fed. 763 42 The Robert W. Parsons, 191 U. S. 17 34, 43, 44 The Rockaway, 156 Fed. 692 43 Thomas v. Iowa, 209 U. S. 258 371 Thomas v. Texas, 212 U. S. 278 113, 255, 364 Thompson v. Floyd, 2 Jones' L. (N. C.) 313 61 27 418 TABLE OF CASES. REFEEENCES ABE TO PAGES. Thompson v. Kentucky, 2C9 U. S. 340 36, 204 ITiompson v. Kidder, 74 N. H. 89 117 Thompson, In re, 36 Wash. 377 82 Thorpe v. Rutland & B. R. Co., 27 Vt. 140 53 Through Routes and Through Rates, In the Matter of, 12 I. C. C. 163 31 Tift V. Southern Ry. Co., 138 Fed. 753 66, 108, 111 Tift V. Southern Ry. Co., 123 Fed. 789 108 Tilley v. Savannah, F. &. W. R. Co., 5 Fed. 641 . .51, 65, 68, 69, 70, 71 315 Tindal v. Wesley, 167 U. S. 204 357 Tinsley v. Treat, 205 U. S. 20 362 Tonawanda v. Lyon, 181 U. S. 389 116 Toncray v. Budge, 14 Idaho, 621 50 Trade Mark Cases, 100 U. S. 82 375, 376 Trammel! v. Dinsmore, 10:^ Fed. 794 109 Transportation Co. v. Chicago, 99 U. S. 635 270 Trask v. Maguire, 18 Wall. 391 340 Trinity County v. Mendocino County, 151 Cal. 279 81 Trono v. United States, 199 U. S. 521 360 Trust Co. of A. v. Chicago, P. & St. L. Ry. Co., 199 Fed. 593 293, 316 Trustees v. Saratoga G., E. L. & P. Co., 191 N. Y. 123 48, 52, 65, 68, 60, 71, 99 Trustees v. Saratoga G., E. L., H. & P. Co., 122 N. Y. App. Div. 203 ... 311 Turner v. Fisher, 222 U. S. 204 115, 127, 137 Turpin v. Lemon, 187 U. S. 51 130, 133, 196 Twining v. New Jersey, 211 U. S. 78 53, 115, 116, 131, 132, 135, 138, 140, 142, 158, 159, 167, 169, 170, 174, 177, 184, 187, 190, 193, 196, 199, 213, 241, 247, 361, 365 Twitchell v. Commonwealth, 7 Wall. 321 362 Tyrone G. & W. Co. v. Burley, 19 Pa. Super. 348 108 U. Ubarri v. Laborde, 214 U. S. 168 364 Ughbanks v. Armstrong, 208 U. S. 481 115 Union B. Co. v. United States, 204 U. S. 364 76 Union P. R. Co. v. Updike G. Co., 222 U. S. 215 8, 32 Union R. T. Co. v. Kentucky, 199 U. S. 194 122, 205, 229 United States v. Ball, 163 U. S. 662 360 United States v. Baltimore & O. S. W. R. Co., 226 U. S. 14 113, 225 United States v. Baruch, 223 U. S. 191 118, 119 United States v. Beacham, 29 Fed. 284 43 United States v. Bellingham B. B. Co., 176 U. S. 211 43 United States v. Burlington & H. C. F. Co., 21 Fed. 331 43, 44 United States v. Burr, 4 Cranch, 469 118 United States v. California & 0. L. Co., 148 U. S. 31 179 TABLE OF CASES. 419 References abe to Pages. United States v. Chandler-Dunbar W. P. Co., 229 U. S. 53 43, 54, 213, 324, 371 United States v. Chicago, K. & S. E. Co., 81 Fed. 783 26 United States v. Colorado & JST. W. E. Co., 157 Fed. 342 27 United States v. Colorado & N. W. E. Co., 157 Fed. 321 26, 27 United States v. Cruikshank, 92 U. S. 542 125, 198, 210 United States v. Delaware, L. & W. E. Co., 152 Fed. 269 10, 304 United States v. Delaware & H. Co., 213 U. S. 366 60, 145, 180, 190, 370, 372 United States, v. Des Moines N. & Ey. Co., 142 U. S. 510 179 United States v. Duell, 172 U. S. 576 Ill United States v. Eaton, 144 U. S. 677 62 United States v. Erie E. Co., 166 Fed. 352 10 United States v. Evans, 213 U. S. 297 105, 360, 371 United States v. Fisher, 222 U. S. 204 115, 127, 137 United States v. Geddes, 131 Fed. 452, 180 Fed. 480 26, 27 United States v. George, 228 U. S. 14 62 United States v. Grimaud, 220 U. S. 506 51, 70, 77, 78, 97 United States v. Grimaud, 216 U. S. 614 70, 78, 95, 97 United States v. Grimaud, 170 Fed. 205 78 United States v. Hamburg-A. P. F, A. G., 200 Fed. 806 2 United States v. Harris, 106 U. S. 629 54, 125 United States v. Heinszen, 206 U. S. 370 78 United States v. Heinze, 218 U. S. 532 115 United States v. Joint T. Assn., 171 U. S. 505 8, 191, 213, 245 United States v. Lake S. & M. S. Ey. Co., 203 U. S. 295 8 United States v. Lane, 228 U. S. 6 127 United States v. Lee, 106 U. S. 196 353, 354, 356, 357 United States v. Lehigh V. E. Co., 220 U. S. 257 8 United States v. Lynah, 188 U. S. 445 115 United States v. Mason, 213 U. S. 115 360 United States v. Matthews, 146 Fed. 306 63 United States v. Miller, 223 U. S. 599 8, 14, 30 United States v. New Y. C. & H. E. E. Co., 212 U. S. 509 9 United States v. New Y. C. & H. E. E. Co., 153 Fed. 630 26 United States v. Nickerson, 17 How. 204 359 United States v. Nord Deutscher Lloyd, 223 U. S. 512 2, 206 United States v. Old Settlers, 148 U. S. 427 180 United States v. Oregon E. & N. Co., 163 Fed. 640 87 United States v. Ormsbee, 74 Fed. 207 79 United States v. Eandenbush, 8 Pet. 288 359 United States v, Eeese, 92 U. S. 214 376 United States v. Eice, 4 Wheat. 246 205 United States v. Eichards, 35 D. C. App. 540 51, 90 United States v. Seaboard Ey. Co., 82 Fed. 563 9, 26 United States v. Standard Oil Co., 155 Fed. 305 9 United States v. Terminal E. Assn., 224 U. S. 383 8, 32 420 TABLE OF CASES. References ake to Pages. United States v. The Frank Sylvia, 37 Fed. 155 43 United States v. Trans-Missouri F. Assn., 166 U. S. 290 8 'United States v. Union P. R. Co., 226 U. S. 61 8 United States v. Union S. Y. & T. Co., 226 U. S. 286 32 United States v. Vacuum Oil Co., 158 Fed. 536 9, 14 United States v. Williams, 194 U. S. 279 362 United States v. Williams, 6 Mont. 379 97 United States v. Wood, 145 Fed. 405 26 United States v. Zucker, 161 U. S. 475 362 United States T. Co. v. Central U. T. Co., 202 Fed. 66 345 Utter V. Franklin, 172 U. S. 416 54 V. Vail V. Arizona, 207 U. S. 201 187 Valentina v. Mercer, 201 U. S. 131 207 Validly V. Board of Park Comrs., 16 N. D. 25 63 Vandalia R. Co. v. Railroad Comn., Ind., 101 N. E, 85 82 Veazie v. Moor, 14 How. 568 27, 43 Venner Co. v. Urbana Waterworks, 174 Fed. 348 285 Vermont & M. R. Co. v. Fitchburg R. Co., 63 Mass. 369 66 Vicksburg v. Vicksburg W. Co., 206 U. S. 496 179, 335, 342, 343 Vicksburg v. Vicksburg W. Co., 202 U. S. 453 330 Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 665 337 Village of Little Chute v. Van Camp, 136 Wis. 526 63 Vining v. Detroit, Y., A. A. & J. Ry., 133 Mich. 539 39 Virginia v. Rives, 100 U. S. 313 123, 255 Virginia Coupon Cases, see Poindexter v. Greenhow Virginia, Ex parte, 100 U. S. 339 155, 252, 255 W. Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557 . 11, 16, 27, 38, 39, 75 Walker v. Sauvinet, 92 U. S. 90 116, 122, 130, 132, 139, 140, 160, 164, 169, 171, 175, 363, 371 Walker v. Towle, 156 Ind. 639 83 Wall, Ex parte, 48 Cal. 279 89 Wallace v. Arkansas C. R. Co., 118 Fed. 422 307, 316 Walla Walla v. Walla Walla W. Co., 172 U. S. 1 331 Walton v. Greenwood, 60 Me. 356 87 Ward V. State, 154 Ala. 227 89 Ward L. Co. v. Henderson-White M. Co., 107 Va. 626 198 Washington v. Fairchild, 224 U. S. 510 123, 137, 139, 212 Washington M. Co. v. Great N. Ry. Co., 43 Wash. 658 325 Washington S. Ry. Co. v. Commonwealth, 112 Va. 515 ... .20, 21, 310, 325 Water, L. & G. Co. v. Hutchinson, 207 U. S. 385 337 TABLE OF CASES. 421 KeFEEENCES ABE TO PAGES. Waters-Pierce Oil Co. v. Deselms, 212 U. S. 159 190 Waters-Pierce Oil Co. v. Texas, 212 U. S. 86 145, 200, 265, 364 Watkins v. Lessee of Holman, 16 Pet. 25 60 Watson V. Maryland, 218 U. S. 173 132, 200, 209 Wayman v. Southard, 10 Wheat. 1 61, 80, 93, 95, 97 Webster v. Superior Court, 67 Wash. 37 65, 69 Weems v. United States, 217 U. S. 349 190, 213, 265, 369, 371 Weems S. Co. v. People's S. Co., 214 U. S. 345 33 Welch V. Swasey, 214 U. S. 91 48, 81, 134, 209, 210, 212, 215 Wellman v. Chicago & G. T. Ey. Co., 83 Mich. 592 263 Welton V. Missouri, 91 U. S. 275 13 West V. Kansas N. G. Co., 221 U. S. 229 5 West V. Louisiana, 194 U. S. 258 56, 116, 132, 185, 200 West C. S. E. Co. V. People, 201 U. S. 506 209, 210, 229, 343 Westerfelt v. Gregg, 12 N. Y. 202 139 Western Ey. of Alabama v. Eailroad Comn., 197 Fed. 954 279, 293 Western T. Assn. v. Greenberg, 204 U. S. 359 121, 134, 218, 245 Western U. T. Co. v. Andrews, 216 U. S. 165 358 Western U. T. Co. v. Call P. Co., 181 U. S. 92 12 Western U. T. Co. v. Chiles, 214 U. S. 274 204 Western U. T. Co. v. Chiles, 107 Va. 60 12 Western U. T. Co. v. Commercial M. Co., 218 U. S. 406 12, 56 Western U. T. Co. v. Crovo, 220 U. S. 364 13 Western U. T. Co. v. James, 162 U. S. 650 12 Western U. T. Co. v. Kansas, 216 U. S. 1 5, 16, 41, 42, 121, 122, 139, 205, 347 Western U. T. Co. v. Missouri, 190 U. S. 412 290 Western U. T. Co. v. Myatt, 98 Fed. 335 47, 59, 106, 111, 129, 207 Western U. T. Co v. Pennsylvania, 195 U. S. 540 270 Western U. T. Co. v. Eailroad Comn. of La., 120 La. 758 174 Western U. T. Co. v. State, 31 Okla. 415 275, 293 Westfield G. & M. Co. v. Mendenhall, 142 Ind. 538 39 West Virginia v. Dent, 25 W. Va. 1 191 West Virginia N. E. Co. v. United States, 134 Fed. 198 108 West V. T. Co. V. Sweetzer, 25 W. Va. 434 336 Wetmore v. Karrick, 205 U. S. 141 122, 137 Wheeler v. United States, 226 U. S. 478 366, 368 Wheeler's Appeal, 45 Conn. 306 48, 60 White V. Hart, 13 Wall. 646 330 White V. Toledo, St. L. & K. C. E. Co., 79 Fed. 133 61 Whitehead v. Shattuck, 138 U. S. 146 363 Whitfield V. Aetna L. I. Co., 205 U. S. 489 191 Whiting V. Townsend, 57 Cal. 515 61 Whitley, Ex parte, 144 Cal. 167 82 Wight V. Davidson, 181 U. S. 371 117 Wight V. United States, 167 U. S. 512 9 422 TABLE OF CASES. REFEBENCES ABE TO PAGES. Wilkes County v. Coler, 180 U. S. 506 333 Wilkinson v. Lane, Ala., 62 So. 31 52 Wilkinson v. Leland, 2 Pet. 627 201 Willcox V. Consolidated G. Co., 212 U. S. 19 228, 230, 240, 262, 264, 273, 277, 285, 286, 309, 311, 312, 313, 317, 320, 321, 328, 376 Williams v. Arkansas, 217 U. S. 79 209, 245, 258, 260 Williams v. Bruffy, 96 U. S. 176 331 Williams v. Fears, 179 U. S. 270 245 Williams v. Mississippi, 170 U. S. 213 255 Williams v. Parker, 188 U. S. 491 229 Wilmington S. M. Co. v. Fulton, 205 U. S. 60 56 Wilson V. North Carolina, 169 U. S. 586 132, 200 Wilson V. Standefer, 184 U. S. 399 333 Wilson V. United States, 221 U. S. 361 366, 367, 368 Winchester & L. T. R. Co. v. Croxton, 98 Ky. 739 309, 339 Winchester & S. E. Co. v. Commonwealth, 106 Va. 264 48, 107, 137 Winous P. S. C. V. Caspersen, 193 U. S. 189 115 Winston v. Stone, 102 Ky. 423 61 Wisconsin, M. & P. R. Co. v. Jacobson, 179 U. S. 287 209, 327 WolflF V. New Orleans, 103 U. S. 358 334, 335 Wong Wing v. United States, 163 U. S. 228 362 Wood V. Chesborough, 228 U. S. 672 370 Wood V. Vandalia R. Co., 231 U. S. 1 304, 308, 309, 325 Wood, Ex parte, 155 Fed. 190 264 Woodruff V. Trapnall, 10 How. 190 335 Woods & Sons v. Carl, 203 U. S. 358 80, 218 Wlight V. Georgia R. & B. Co., 216 U. S. 420 278, 339 Wulf V. Kansas City, 77 Kan. 358 53 W. W. Cargill Co. v. Minnesota, 180 U. S. 452 133, 245 Yazoo & M. V. R. Co. v. Greenwood G. Co., 227 U. S. 1 15 Yazoo & M. V. R. Co. v. Vicksburg, 209 U. S. 358 339 Yesler v. Washington H. L. Comrs., 146 U. S. 646 174, 233, 234 Yick Wo V. Hopkins, 118 U. S. 356 124, 177, 209, 210, 214, 256 Young, Ex parte, 209 U. S. 123 57, 128, 226, 227, 232, 256, 264, 266, 314, 354, 358 Z. Zakonaite v. Wolf, 226 U. S. 272 113 Zuber v. Southern Ry. Co., 9 Ga. App. 539 96 INDEX. KEFEBENCES ABE TO SECTIONS. ACTUAL COST. See Cost. ADMINISTRATIVE ORGANS. Limited power of, 37. Judicial review of administrative orders, 51, 116. See also Delegation. ADMIRALTY, 23. ALTERATION OF CONTRACTS. Under reserved power, 199. AMENDMENT OF CONTRACTS. Under reserved power, 199. AMENDMENTS. Comparison of Fifth and Fourteenth, 53-55, 86, 126, 127, 131. Fourth, 213. Fifth, indictment, 207. Fifth, double jeopardy, 208. Fifth, compulsory testimony, 212. Fifth, due process, 52-132, 148, 209. Fifth, just compensation, 148. Sixth, 210, 214. Seventh, 211. Eighth, 215. Ninth, 96. Tenth, 12, note. Eleventh, 204-206. Fourteenth, due process, 52-132, 148, 209. Fourteenth, equal protection, 133-146, 149. Fourteenth, did not radically change whole theory of government, 87, 105, 146. AMOUNT OF RETURN. See Eabnings. ANTI-TRUST ACT. Within power of Congress to enact, 6. 423 424 INDEX. EeFEBENCES ABE TO SbXJTIONS. APPORTIONMENT OF VALUATION. Between interstate and intrastate transportation, 165. Between freight and passenger transportation, 165. Between particular classes of traffic, 166. Unprofitable parts of the property, 157, 167. APPRECIATION IN VALUE. As earnings, 175. ARBITRARY GOVERNMENTAL ACTION. Bearing of due process provision, 89, 105, 116, 117. Bearing of equal protection provision, 137, 139, 140, 146. ASCERTAINMENT OF FACTS. Delegation of legislative power, 43. AVERAGE PRICE. Bearing on present cost, 158. BETTERMENTS. As operating expenses, 173. As additions to principal, 175. BILLS OF LADING. Local bills do not show transportation is strictly intrastate, 16. BOATS. See Admiralty, Continuous Highways, Feebies. BONDS. As showing value of property, 156, 163, 168, 174, note. Payments on, as operating expenses, 174, 182. CAB SERVICE. Whether interstate transportation, 20. CAPITALIZATION. As showing value of property, 156, 163, 168. Of earning capacity, 162, 168, 174. CARTAGE. Whether interstate transportation, 20. CHARTERS. Federal charters and state regulation, 21. State charters and federal regulation, 21. 1 INDEX. 425 EeFEEENCES ABE TO SECTIONS. Do not limit state by mere implication, 193, 194. Eeserved power to alter, amend or repeal, 199. See also Contracts. CLASSIFICATION. Bearing of equal protection provision, 139, 140, 143. COMMERCE CLAUSE. ' Stated, 1. As implied restraint on state, position of Supreme Court, 3. As implied restraint on states, discussed, 2, 4, 5. See also Interstate Eates, Local Eates, Sepabate Inteastatb Tbanspobtation, Continuous Highways, Chaetebs. COMMISSIONS. See Delegation of Legislative Power ; Intebstate Commebck Commission. COMMON LAW. As to interstate commerce, 8. Power of legislature to change, 33, 49, 50, 81, 82, 118, 123, 152, 179, 197. Suits at, under Seventh Amendment, 211. COMPARISON OF AMENDMENTS. Fifth and Fourteenth, 53-55, 86, 126, 127, 131. COMPENSATION. See Just Compensation. COMPULSOEY TESTIMONY. Against one's self, 212. CONSTITUTIONAL EIGHTS. Waiver, 21, 22. Constitutional and extra-constitutional restraints, 92-104. CONSTEUCTION COSTS. See Valuation. CONSTEUCTION OF CONSTITUTION. Power to declare legislation unconstitutional, 93. Different tests of constitutionality, 63, 67, 70, 71, 92. Following state decisions, 63. Questions which may be brought before court, 216. Eules of construction, 217. Partial unconstitutionality, 218. 426 INDEX. Eeferences abp: to Sections. CONTEXT. In Fifth Amendment, argiunent from, 74, 75, 127, 131. In Fourteenth Amendment, 74, 75, 126, 127, 131. CONTINGENT LEGISLATION. As delegation of legislative power, 44, 45. CONTINUOUS HIGHWAYS. As channels of interstate commerce, 16, 23, 24, 25. CONTRA.CTS. Of carrier with shipper as affecting governmental control, 17, 18, 198. Of carrier with one government to avoid regulation by another, 21. Of carrier with government as estopping carrier from alleging un- constitutionality, 22. See also Impaibment of Contbacts. COEPORATIONS. "Persons" within meaning of Constitution, 57, 135, 208. Federal and state incorporation, 21, 22. Foreign, 22, 138. COST. Of road, bearing on valuation, 156, 163, 168. Of reproducing road, 157, 170. Of creating corporation, 160. Of creating clientage, 161. COURTS. General extent of power, 49. Internal organization, 28, 36. Power over rates at common law, 8, 33. Distinction between judicial and legislative power over rates, 50. Review of administrative orders, 51, 116. See also Enfoecement of Law. DAMAGES. Payments as operating expenses, 172. DECISIONS. Administrative, judicial review of, 51, 116. Judicial, as impairing contracts, 190. DECLARING LEGISLATION UNCONSTITUTIONAL. Inconsistent positions taken, 92. Power to declare unconstitutional, 93. 1 INDEX. 427 ReFEBENCES ABE TO SECTIONS. General duty to enforce legislation, 94. Passing upon wisdom or justice, 95. The Ninth Amendment, 96. Rule stated in Twining v. New Jersey, 97. Extra-constitutional restraints and rights, 98. DELEGATION OF LEGISLATIVE POWERS. General rule, 38. Position taken, 39. Authorities on rate-making, 40, 41. Ascertainment of facts, 43. Contingent legislation, 44, 45. Grants of discretion, 46, 91, 116. Do the statutes establish definite principles? 47, 48. Delegation to courts, 50. DEPRECIATION. Must be considered in fixing value, 155, 170. Bearing on operating expenses, 173, 175. "DEPRIVATION." Is a change of law a "deprivation"? 111. DETAILED REGULATIONS. Under equal protection provision, 139. DIFFERENTIALS. As preferences to ports, 203. DTSt'RETION, GRANTS OF. As delegations of legislative power, 46, 48. Discrimination, 91. Arbitrary power, 116. DISCRianNATION. Bearing of due process provision, 89-91, 151. Bearing of equal protection provision, 137-140, 145, 151. DISTRIBUTION OF GOVERNMENTAL POWERS. General rule, 26. Federal and state problems distinct but similar, 27. Among three departments, 26, 36, 82. Not complete, 29. Exceptions to general rules, 28. Local self government, 28, 44. Legislature, extent of power of. See Legislatuee. 428 INDEX. Refebences are to Sections. Administrative organs, limited power of, 37. Administrative organs, delegation of power to. Courts. See Courts. See Delegation. DIVIDENDS. Returns on value, not on capitalization. Chap. 6. As operating expenses, 174. Comparison with interest on bonds, 182. DONATED PROPERTY. Bearing on valuation, 156, note, 183. DOUBLE JEOPARDY. Provision in Fifth Amendment, 208. DUE PROCESS CLAUSES. Stated, 52. Compared, 53-55, 86, 126, 127, 131. Importance, 56. "Persons" protected, 57. "State" restrained, 58, 74. Federal government restrained, 59. Organs for limiting rates, 60. Procedure in limiting rates, 64. Procedure in enforcing regulations, 65. Suitable procedure in general, 63, 65. Proper scope of provision, 61. Position of court, 62. No complete general statement of scope, 67. No complete general statement of reasons for decisions, 71. Particular lines of decision, 68. Substantive restraint, 66, 72. Different tests of constitutionality, 68, 70, 92 et seq., 105 et seq. Discussion — Chap. 4. Are all organs necessarily restrained? 73. Is restraint necessarily more than procedural? 75. Arbitrary governmental action, 89, 105, 115, 116. Argument concerning redundancy, 86-88, 126. Deprivation by change of law. 111. Discriminatory governmental action, 89-91. "Essential nature of all free governments," 102, 103. Fundamental rights, 92, 101, 103. Inalienable rights, 92, 99, 103. Just compensation, 119-126, 148. See Law of the Land. Natural justice, 98, 100, 103, 113, 123. INDEX. 429 ReFEBENCES ABE TO SECTIONS. Private property, taking for private use, 124. See Reasonableness. "Scope of governmental authority," 104. EARNING CAPACITY. Capitalization of, 162, 168, 174. EARNINGS. Net, not gross, fix rate of return, 175. Appreciation in value, 175. Interstate and intrastate to be separated, 12, 175. Probable earnings under new rates, 176. Subject to requirement of rates fair to public, 177. Return fair to railroad, 178. Constitutional rate of return, 179, 180, 181. Distribution between stockholders and bondholders, 182. Exceptional conditions, 183. Rates on particular classes of traffic, 184-188, 165, 166. Mileage books, 187. EIGHTH AMENDMENT. Excessive punishments, 215. ELEVENTH AMENDMENT. General rule as to suits against the government, 204. What governments come within the rule, 205. Suits against public officials, 206. ENFORCEMENT OF LAW. Nature of power of courts, 49. Distinction between judicial and legislative power, 50. Distinction between judicial and administrative power, 51. Indictment, 207. Putting twice in jeopardy, 208. Notice and hearing, 65, 209. Trials in criminal cases, 75, 210. Suits at common law, 211. Self-incrimination, 212. Unreasonable searches and seizures, 213. Other testimony, 214. Punishment, 215. Suits against the government, 204, 205. Suits against public officials, 206. 430 INDEX. References abe to Sections. EQUAL PROTECTION PROVISION. Clause stated, 133. Organs of government restrained, 134. "Persons" protected, 135. Some state actions forbidden, 136. Rate regulation, 138, 141, 145. Excessive penalties, 145. Arbitrary governmental action, 137, 139, 140, 146. Classification, 139, 140, 143. Discrimination, 136, 137, 138. Just compensation, 146. Reasonableness, 146. "ESSENTIAL NATURE OF ALL FREE GOVERNMENTS," 102, 103. ESTOPPEL TO ASSERT UNCONSTITUTIONALITY, 22. EXCEPTIONAL CONDITIONS. Allowing exceptional rate of return, 183. EXCESSIVE INVESTMENT. Excess not entitled to revenue, 157, 167. EXCESSIVE PUNISHMENT. Restraint by Eighth Amendment, 215. Restraint by Fourteenth Amendment, 145, 215. EXCLUSIVE POWER. Under commerce clause, 2-5. EXPENSES. See Opeeating Expenses. EXTRA-CONSTITUTIONAL RESTRAINTS, 92-104. EXTRA-TERRITORIALITY, 104. FEDERAL INCORPORATION. Of interstate carriers, 21, 22. FERRIES. Interstate rates, 7. FIFTH AJIENDMENT. Indictment, 207. Double jeopardy, 208. Compulsory testimony, 212. Due process, 52-132, 148, 209. Just compensation, 148. I INDEX. i31 Eefeeences are to Sections. FINALITY OF DECISION. Of administrative organs, 51, 116. Of state courts on state constitutions and laws, 87. FIXED CHARGES. Payments on bonds not operating expenses, 174, 182. Payments on leases, 174. FOURTEENTH AMENDMENT. Circumstances of adoption, 74, 75, 136. Did not radically change whole theory of government, 87, 105, 146. See also Due Peocess Clauses; Equal Pbotection Pbovision. FOURTH AMENDMENT. Unreasonable searches and seizures, 213. FRAUDULENT ADLHNISTRATIVE ACTION. As violating due process provision, 90. FREE GOVERNMENTS. "Essential nature of all free governments," 102, 103. FUNDAMENTAL RIGHTS. Protection against governmental action, 92, 101, 103. GOING CONCERN. Established business as element of value, 161. GOOD WILL. As element of value, 161. "GRADUAL PROCESS OF JUDICIAL INCLUSION AND EXCLUSION," 67, 132. GRAIN ELEVATORS. As instruments of commerce, 20. GRANTS OF DISCRETION. As delegations of legislative power, 46, 48. Discrimination, 91. Arbitrary power, 116. IMPAIRMENT OF CONTRACTS. The provision, 188. "Laws" forbidden, 189. Judicial decisions, 190. 432 INDEX. References are to Sections. Executory and executed contracts, 191. Express contracts with government, 191, 192, 197. Implied contracts, 193, 194. Limitations upon power to contract, 195-198. Eeserved power to alter, amend or repeal, 199. IMPEOPER MOTIVES. As rendering governmental action unconstitutional, 90. INALIENABLE RIGHTS. Protection against governmental action, 92, 99, 103. INCORPORATION. Effect of, 21, 22. Expenses of, 160. Federal and statie, 21, 22. Foreign, 22, 138. "Persons," 57, 135, 208. INDICTMENT. Provision in Fifth Amendment, 207. INTEREST. Current rate as showing just compensation, 181, notes. INTERPRETATION OF CONSTITUTION. See CoNSTKUCTioN OF Constitution. INTERSTATE COMMERCE ACT. Effect on state regulations, 6-10, 14. Auxiliary services, 20. Delegation of legislative power to Commission, 48. INTERSTATE HIGHWAYS. As channels of interstate commerce, 16, 23, 24, 25. INTERSTATE RATES. Subject to Congress, 6. Instances of, 7. At common law, 8. State laws "affecting but not regulating" interstate commerce, 9. Local rates which affect interstate rates indirectly, 11. Local rates which affect interstate rates directly, 12. See also Separate Intrastate Transportation. INTRASTATE RATES. See Local Rates; Separate Intrastate Transportation. INDEX. 433 Refebencb:s abe to Sections. INVESTMENT. Bearing on valuation, 156. JEOPARDY. Putting twice in jeopardy, 208. JUDICIAL DECISIONS. Finality, 58, 60, 63, 65, 70, 85, 190, 209, 216. Impairment of contracts, 190. "JUDICIAL INCLUSION AND EXCLUSION," 67, 132. JUDICIAL POWER. See CoUETS. JURY. Trials in criminal cases, 75, 210. Suits at common law, 38, note, 211. JUST COMPENSATION. Provision in Fifth Amendment, 147. Due process and just compensation, 119-126, 148. Equal protection and just compensation, 146, 149. Requirement limits power to regulate rates, 150. Indemnification for unreasonable regulations, 153. Amount of return, 154. See also Eabnings. See Valuation. JUSTICE OF GOVERNMENTAL ACTION. Power of court to pass upon, 95. LAW OF THE LAND. Provision akin to due process provision, 76, 79-81, 86, 88. Due process in England, 78. Law of land in England, 77. Law of land in America, 81. Not unchangeable, 83. How may it be changed? 82. Different in different states, 84. Judicial alteration of, 85. LEGISLATURE. General extent of power, 31, 33. Power over rates, 32-34. Power to change common law, 33. Detailed regulations, 35. 28 434 INDEX. References abe to Sections. May entrust some powers to other departments, 36. Procedure, 64. See also Delegation of Legislativp; Power. LIBERTY. True meaning, 128. Position of court on, 129-131. LOCAL OPTION. As delegation of legislative power, 30, 44. LOCAL RATES. What are, 10. Local rates which affect interstate rates indirectly, II. Local rates which aflfect interstate rates directly, 12. See also Separate Intrastate Transportation. LOCAL SELF-GOVERNMENT. Grant of, as delegation of legislative power, 30, 44. LONG AND SHORT HAUL. Bearing of equal protection provision, 144. MAGNA CARTA. Provision for law of the land, 76, 77, 128. Grant of, 128, noto. John Marshall, 128, note. MAINTENANCE. What constitutes, 173. See also Operating Expenses. MARKET VALUE. As basis for estimating rate of return, 161, 162, 163, 168, 174. MASSACHUSETTS DECISIONS. On unreasonable legislation, 115. MILEAGE BOOKS. May state compel issue at reduced rates? 187. MOTIVES. As affecting constitutionality, 90. MUNICIPALITIES. See Ordinances. INDEX. 435 References are to Sections. NATURAL JUSTICE. Protection against governmental infringement, 98, 100, 103, 113, 123. NATURAL RIGHTS. Protection against governmental infringement, 98, 100, 103, 113, 123. NAVIGATION LAWS. State and federal regulation, 16, 20. NECESSITY OF GOVERNMENTAL ACTION. Judicial inquiry, 106. NET EARNINGS. See Earnings. NINTH AMENDMENT. Reserved rights, 96. OPERATING EXPENSES. Transportation, 171, 172. Maintenance, 171, 173, 164. Betterments, 173. Depreciation, 173, 175. Taxes, 171. Dividends and interest, 174. Securing business, 172. Damage claims, 172. Local transportation costs more than through transportation, 172. ORDINANCES. Exercises of local self-government, 30. Equivalent to state action, 58, 134. Reasonableness, 108. Impairing contracts, 189, 192, 196. ORIGINAL PACKAGES. State regulation, 15, 16, 18. PARTICULAR RATES. Decisions on considering schedule as entirety, 184. Discussion on considering schedule as entirety, 186. Decisions on particular rates, 185. Mileage books, 187. PERCENTAGE OF RETURN. Constitutional rate of return, 179, 180, 181. See also Earnings. 436 INDEX. RbTEBENCES ABE TO SECTIONS. "PERSONS." Term' includes corporations, 57, 135, 208. PLANT. See Valuation. POLICE POWER. Reasonable regulations, 109. Meaning of term "police power," 110. Reasonableness under due process provision, 111-113. How far contracts subject to, 197, 198. PORTS. Preferences to, see Pkefebexces to Poets. PREFERENCES TO PORTS. Provision, 200. Organs of government restrained, 201. Rate regulation in general, 202. Differentials, 203. PRIVATE PROPERTY. Taking for private use, 124. Taking for public use, see Just Compensation. PROCEDURE. Procedure in limiting rates, 64. Procedure in enforcing regulations, 65. Suitable procedure in general, 63, 65. Indictment, 207. Notice and hearing, 65, 209. Trials in criminal cases, 210. Suits at common law, 211. See also Due Peocess Clauses; Enfokcement of Law. PROPERTY. Donated, 156, note, 183. See also Peivate Pkopebtt. RATE-MAKING. Legislative power, 34. Limited power of administrative organs, 37. By commission, 38 et seq. Contingent legislation, 45. Judicial participation, 60. INDEX. 437 ReFEBENCES ABE TO SECTIONS. RATE OF RETURN. See Eabnings. RATES. See Reasonable Rates; Paeticulab Rates. REASONABLENESS. Of governmental action in general, 105-118. Of ordinances, 108. Police power, 109. Natural justice, 113. Equal protection provision, 146. Rate regulations, 118, 121, 151-153, 159. REASONABLE RATES. At common law, 8, 33. Is term definite? 48. Constitutional requirement, 118, 121, 151-153, 159. See also Eabnings. REDUNDANCY, ARGUMENT FROM. Bearing on meaning of due process requirement, 86-88, 126. REFERENDUM. Submission to voters of entire state, 44. Submission to voters of locality, 30, 44. REPEAL OF CONTRACTS. 199. REPRODUCTION OF PLANT. See Valuation. RESERVED RIGHTS. Under Ninth Amendment, 96. RESERVED POWER TO ALTER, AMEND OR REPEAL, 199. RETROACTIVE LAWS, 50. REVENUE. See Eabnings. SAFETY APPLIANCE CASES. Validity and scope of federal act, 16, 25. "SCOPE OF GOVERNMENTAL AUTHORITY," 104. 438 INDEX. References ake to Sections. SCHEDULE OF RATES. Publishing, 9. Whether schedule as entirety must be considered, 184-187. SEARCHES AND SEIZURES. Restraint by Fourth Amendment, 213. SEPARATE INTRASTATE TRANSPORTATION. The problem, 13. The test, 14. Tax cases, 15. Original package cases, 15. Some rates under federal control, 16. Separate contracts, 17, 18. Undisclosed intentions, 19. Safety Appliance Act, 16, 25. Continuous highways, 16, 23, 24. Auxiliary services, 20. Terminal services, 20. Switching, 20. Grain elevators, 20. Navigation laws, 20, 23. Wharfage, 16, 20. Cab service, 20. Cartage, 20. SEPARATION OF GOVERNMENTAL POWERS. See DisTEiBUTioN of Govebnmental Powers. SEVENTH AMENDMENT. Jury trials, 211. SILENCE OF CONGRESS. Bearing on state regulation of commerce, 2-9. SIXTH AMENDMENT. Place and manner of trial, 210. STANDING MUTE, 77. "STATE." Significance of term in Fourteenth Amendment, 58, 74, 134, 136. Impairment of contract clause, 189. STOCK AND BONDS. Basing valuation on, 156, 163, 168. INDEX. 439 Eefeeences are to Sections. Payments on, as operating expenses, 174. Distribution of earnings between stockholders and bondholders, 182. SUBSTANTIVE RESTRAINT. Due process provision as substantive restraint, 66 et seq. Is due process provision necessarily such? 72 et seq. SWITCHING. State and federal regulation, 20. TAXES. Under commerce clause, 15. Under equal protection provision, 138, 140. Taxes as operating expenses, 171. TENTH AMENDMENT. Reserved rights under, 12, note. TERMINAL PROPERTY. Uncalled for expenditures, 167, 157. TERMINAL SERVICES AND CHARGES. State and federal regulation, 20. TERRITORIES. General power of Congress, 31, 42. Power of Congress over commerce, 1, note. Restraints upon Congress, 101. Local self-government, 30, note, 42. Possess only powers bestowed upon them, 196, note. TESTIMONY. Compulsory self-incrimination, 212. Confronting witnesses, 214. Securing witnesses, 214. THROUGH RATES. Under federal control, 7, 10, 12, 19. TOP-KNOTS. Swift on, 128, note. TRIAL. See Due Process Clauses; Enforcement of Law. TWICE IN JEOPARDY, 208. 440 INDEX. REFEBENCES ABE TO SECTIONS. UNNECESSARY GOVERNMENTAL ACTION. Judicial inquiry into necessity, 106. UNREASONABLE RATES, See Reasonable Rates. UNREASONABLE SEARCHES AND SEIZURES, 213. UNUSED PROPERTY, 157. VALUATION. Present value the test, 155, 158, 170, 183. Cost and capitalization not considered, 156, 163, 168. Market value, 161, 162, 163, 168, 174. Producing plant equally efficient, 157. Cost of reproduction, 157, 170. Tangible property, 159, 183. Average price, 158. Cost of creating corporation, 160. Cost of creating clientage, 161. Capitalization of earning capacity, 162, 168, 174. Value as system, 164. Unprofitable parts of property, 157, 167. Rough estimates sometimes sufficient, 169. See also Appobtionment of Valuation, Depbeciation. VESTED RIGHTS. Extent of constitutional protection, 102, note. VETO POWER. Of governor, 28. Of king, 31. Courts have none over legislation, 94, 97. WAIVER OF CONSTITUTIONAL PROTECTION, 22. WATERWAYS. See Continuous Highways. WHARFAGE, 20. State and federal regulation, 16, 20. WISDOM OR JUSTICE. Power of court to pass upon, 95. University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. Form L9 OF CAIAV^KT* «^«f!;'arL^ llllil«ffiS,'^^'^'°'^^'- LIBRARY FACILITY AA 000 834 203 ■\ 1 r