The statute merely declared the common law. That principle was first declared in the United States by the courts,' and was, therefore, American common law. On the other hand, the decisions of the Supreme Court of the United States have made the long and short haul clause a nullity. The law of the United States upon commerce is found in the decisions of the Supreme Court of the United States; no law is known until it is construed; the Interstate Commerce Act was not tried in the Court for ten years after its passage, and the decision changed its entire meaning. The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted it means now. Statutes are passed to apply to existing conditions, but conditions are ever changing. It is the power of courts to decide and pronounce judgments and carry into effect between persons and parties who bring cases before them. The record of these decisions is that of the application of the immutable principles of the Constitution to all combinations of circumstances and conditions. This record becomes a safe guide for substantially similar circumstances and conditions, and remains the common law of the United States.

3

In Ex parte Swartout, Chief Justice Marshall said:

"This court disclaims all jurisdiction not given by the Constitution or by the laws of the United States. Courts which originate in the common law possess a jurisdiction which must be regarded by their common law until some

1 See McDuffee v. R. R. Co., 52 N. H. 430, Doe, J.; Bennett v. Dutton, 10 N. H. 481.

I. C. C. v. C. N. O. & T. P. R. R. Co., 162 U. S. 197; I. C. C. v. Alabama Midland R. R. Co., 168 U. S. 144; I. C. C. v. C. N. O. & T. R. R. Co., 167 U. S. 479, 512.

3 4 Cranch, 75.

statute shall change their established principles, but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction."

The jurisdiction of the Supreme Court is at least as broad as the field covered by Congress under the written Constitution in its attempts to regulate commerce. The jurisdiction is constitutional; the basis of decision is the common law of the Constitution which is coëxtensive with the broad range of subjects involved in the regulation of commerce. "The law is any rule which will be upheld by the courts." Conversely, that which the courts will not uphold is not law. And so the grant of power by statute to the courts to decide whether a rate fixed is reasonable is not a delegation of legislative power to the judicial department, for the courts inherently possess that power and it can neither be given by statute nor taken away. "The supremacy of the law is the foundation rock upon which our institutions rest. The law, this court said in United States v. Lee, is the only supreme power in our system of government.'

1 Dicey, The Law of the Constitution, 2106 U. S. 196, 220.

23.

3 Harlan, J., in Northern Securities Case, 193 U. S. 197, 350. On the distinction between judicial legislation and the inherent necessity of the existence of common law, see William H. Rand, Jr., Swift v. Tyson versus Gelpcke v. Dubuque," Harvard Law Review, Vol. VIII, 328-351; Provinces of the Written and Unwritten Law" and " The Ideal and the Actual in the Law," addresses by James C. Carter; Prof. W. G. Hammond's Notes to Blackstone's Commentaries (1890), Vol. I, p. 213 et seq.; "Judicial Legislation: Its Legitimate Function in the Development of the Common Law," E. R. Thayer, Harvard Law Review. Vol. V, 172; Some Definitions and Questions in Jurisprudence," Prof. J. C. Gray, Harvard Law Review, Vol. VI, 21.

CHAPTER VII

NATIONAL REGULATION OF RATES OF PUBLIC CALLINGS

$151. CONGRESS HAS POWER TO FIX REASONABLE RATES TO BE CHARGED IN INTERSTATE COMMERCE. To what extent, then, can Congress by legislation satisfy the demand for the regulation of the rates of carriage of freight and passengers among or between the States or in the District of Columbia? It is said that three quarters of all the traffic is now interstate. The question, therefore, affects practically all means of transportation and almost every individual. The power of Congress to regulate all implements and every act of interstate commerce is undoubted.1

In the case of Ames v. Union Pacific Railway Company, Mr. Justice Brewer said:

"But within the scope of the word 'regulation,' as commonly used, is embraced the idea of fixing the compensation which the owners of railroad property shall receive for the use thereof."

In the dissenting opinion in Northern Securities Case, Mr. Justice White, speaking for himself and three other justices, said:

"The plenary authority of Congress over interstate commerce, its right to regulate it to the fullest extent, to fix the rates to be charged for the movement of interstate commerce, to legislate concerning the ways and vehicles

1 Gibbons v. Ogden, 9 Wheat. 1.

2 64 Fed. Rep. 165, 178.

3 193 U. S. 368.

actually engaged in such traffic, and to exert any and every other power over such commerce which flows from the authority conferred by the Constitution, is thus conceded."

In the opinion of the majority of the court there is this statement:

"Will it be said that Congress can meet such emergencies by prescribing the rates by which interstate carriers shall be governed in the transportation of freight and passengers? If Congress has the power to fix such rates and upon that question we express no opinion."

In Philadelphia Steamship Company v. Pennsylvania,' it was held:

"The very object in engaging in transportation is to receive pay for it. If the regulation of the transportation belongs to the power of Congress to regulate commerce, the regulation of fares and freights receivable for such transportation must equally belong to that power."

"There were three obvious and dissimilar courses open for consideration. Congress might itself prescribe the rates, or it might commit to some subordinate tribunal this duty, or it might leave with the companies the right to fix rates, subject to regulations and restrictions, as well as to that rule which is as old as the existence of common carriers, to wit, that rates must be reasonable. There is nothing in the act fixing rates. Congress did not attempt to exercise that power, and if we examine the legislative and public history of the day it is apparent that there was no serious thought of doing so."2

As there has been no decision based upon an act of

' Brewer, J., in I. C. C. v. C. N. O. & T. P. R. R. Co., 167 U. S.

Congress either fixing rates or delegating this power to another body, we must depend upon inference from decisions upon the general subject. In Munn v. Illinois,1 Chief Justice Waite traced the legislation on the subject from its early inception down to the delivery of the opinion:

"With the Fifth Amendment in force, Congress in 1820 conferred power upon the City of Washington to regulate the rates of wharfage at private wharves, the sweeping of chimneys, and to fix the rates of fees therefor, and the weight and quality of bread; and in 1848 to make all necessary regulations respecting hackney carriages and the rates of fare of the same, and the rates of hauling by cartmen, wagoners, carmen, and draymen, and the rates of commission of auctioneers.

"This brings us to inquire as to the principle upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is affected with a public interest, it ceases to be juris privati only. This was said by Lord Chief Justice Hale more than two hundred years ago in his treatise De Portibus Maris (1 Harg. Law Tracts, 78), and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good to the extent of the interest he has thus created.