law or commission, a Federal law or commission, must come to be decided on the uniform basis of the Fourteenth and Fifth Amendments by the Supreme Court of the United States. A State corporation, a Federal corporation, and a corporation of another State, are all equal before the State law and the Federal law. The theory that the corporate person engaged in interstate commerce enters a State by the grace of that State, as is supposed from the decision in Bank of Augusta v. Earle,' upon the theory of a comity between the States, is a ridiculous contradiction of well-established principles of international law, which will be set forth later," of the Fourteenth Amendment, under which corporations are persons, and the theory of Federal control of interstate commerce. The same result would be attained so far as the basis of rates would be concerned as if there were no statute, i.e., under the common law of the Constitution of the United States.

3

In the case of The Wabash Railroad v. Illinois, Mr. Justice Miller said:

"It cannot be too strongly insisted upon that the right of continuous transportation from one end of the country to the other is essential in modern times to that freedom of commerce from the restraints which the States might choose to impose upon it that the clause was intended to secure. This clause, giving to Congress the power to regulate commerce among the States and with foreign

1 13 Peters, 519.

See dissenting opinion in Haddock v. Haddock, April 12, 1906, in which it is said that the "full faith and credit clause did away with comity." See also Chapter IX.

Missouri Pacific R. R. Co. v. Mackay, 127 U. S. 205; Covington, etc., Turnpike Co. v. Sandford, 164 U. S. 592.

4 118 U. S. 557.

nations, as this court said before, was among the most important of the subjects which prompted the formation of the Constitution.

"Of the justice and propriety of the principle which lies at the foundation of the Illinois statute it is not the province of this court to speak. As restricted to a transportation which begins and ends within the limits of the State, it may be very just and equitable, and it is certainly the province of the State legislature to determine that question. That this species of regulation is one which must be, if established at all, of a general and national character and cannot be safely and wisely remitted to local rules and local regulations, we think is clear. And if it be a regulation of commerce, as we have demonstrated it is, and as the Illinois case concedes it to be, it must be of that national character, and the regulation can only appropriately exist by general rules and principles which demand that it should be done by the Congress of the United States under the commerce clause of the Constitution."

There is a common rule for all persons engaged in interstate commerce, and the right to be judged by it is protected by the Constitution of the United States.

$154. THE POWER OF CONGRESS TO FIX RATES THROUGH A COMMISSION IS SUBJECT TO THREE CONSTITUTIONAL LIMITATIONS.-Congress cannot act throughout the year, nor, in every case, by specific legislation. The will of Congress must, from the necessities of its position and the question before it, be expressed in a general law. If legislators had the gift of prophecy, each specific case which might arise under the law could be specifically dealt with by Congress in one broad yet specific expression of its will. But direct legislative action, when it is specific, becomes narrow, and when it is general without being specific, leaves open to

question the application of the general rule to the individual case. As was said by Justice Field in the Sinking Fund Cases:"

1

"The distinction between a judicial and legislative act is well defined. The one determines what the law is, and what the rights of the parties are with reference to transactions already had; the other prescribes what the law shall be in future cases arising under it."

This distinction is especially important in respect to legislative power to regulate commerce where each case arises out of a combination of ever new circumstances and conditions which must be ascertained and established as matter of fact before the law can be applied. All that could safely be said in advance was expressed in the Fifth and Fourteenth Amendments to the Constitution of the United States. The regulation of rates does not depend ultimately upon the will of Congress but upon the test of that will in the light of the Amendments by the Supreme Court. "The common law," says Kent," "includes those principles, usages, and rules of action applicable to the government and security of person and property which do not rest for their authority upon any express and positive declaration of the will of the legislature." The ultimate test, therefore, of all attempts to regulate commerce is the common law of the Constitution.

Many methods are open of making up for the inherent limitation, which, under our form of government, defines the legislative department in this matter. The first is for Congress to establish a specific

1 99 U. S. 761.

2

I Kent's Commentaries, 533

schedule of rates for all classes and items of service intended to be regulated. If, in the application of this method, Congress should cover substantially all existing cases, it would not only leave still open the unregulated future, but also would undoubtedly, if it heeded the call of the shippers and passengers in any degree, bring about government rate-making under government ownership and operation. Frank and open government rate-making by legislation would have the serious defect that it could consider only the past or actual (at the time of legislation) and not the current or future traffic in establishing the relation between cost and price of service in an attempt to avoid unjustly enriching the railroad on the one hand and ruining it on the other. Mr. Justice Brewer1 has called attention to the delicacy of the question of regulating industries whose success depends upon the dispatch of numerous items at once. The reduction of a mill upon one item might destroy the industry. Such regulation cannot well be undertaken without all the safeguards which attend the determination of absolute right.

The method we have been considering has not been proposed in the United States.

In the Northern Securities Case, after discussing the nature of the combination there under consideration and the evil consequences thereof, Mr. Justice Harlan,2 speaking for the court, said:

"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

Cotting v. Kansas City Stock Yards, 183 U. S. 105. ง 193 U. S. 343.

and passengers? If Congress has the power to fix such rates - and upon that question we express no opinion it does not choose to exercise its power in that way or to that extent.

"It is a settled principle of constitutional law that 'the government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that any particular mode of affecting the object is excepted, take upon themselves the burden of establishing that exception.'1

"Congress being empowered to regulate commerce among the several States and to pass all laws necessary and proper for carrying into execution any of the powers specifically conferred, may make use of any appropriate means for the same. ' 2

'Congress might commit to some subordinate tribunal this duty of fixing rates.'

Congress may combine two methods: it may establish a standard either by maxima, minima, or both, by specific schedules, or by a general definition of the rates to be collected, as that they shall be reasonable, and it may delegate the power to ascertain and establish the facts of each case and to apply the standard of reasonableness to the rate collected, and to say not only that the rate was reasonable or unreasonable and would be so in the future under substantially similar circumstances and conditions, but also to say what rate is and

1 Gibbons v. Ogden, 4 Wheat. 316; Interstate Commerce Commission v. Brimson, 154 U. S. 473; Mr. Justice White in Northern Securities Case, 193 U. S. 268.

Luxton v. Bridge Co., 153 U. S. 529.

Brewer, J., in Interstate Commerce Commission v. Cincinnati, New Orleans & Texas Pacific Railway Co., 167 U. S. 479.