CONGRESS MUST will be reasonable under such conditions in the future. When Congress delegates the power to an executive department to carry out its legislative will upon a question of fact, that judgment ought to be conclusive on questions of fact.' But to inquire whether rates that have been charged and collected are reasonable is a judicial act, and to prescribe rates which shall be charged in the future is a legislative act.2 3 The Interstate Commerce Commission, in Thatcher v. Hudson Canal Company, one of the earliest cases before it, speaking through Judge Cooley, decided: 'Its power in respect to rates is to determine whether those imposed by the railroad are for any reason in conflict with the statute, and later on the Commission decided that the Commission is not primarily a rate-making body. The carrier is left free to arrange its own tariffs in the first instance. We sit for the correction of what is unreasonable and unjust in these tariffs, and the Commission up to the date of these decisions and up to now has never assumed in the first instance to make a rate." Yet they acted upon the idea that it was their duty to determine whether the rate complained of was just 1 Bates v. Payne, 194 U. S. 106. Interstate Commerce Commission v. Cincinnati, New Orleans & Texas Pacific Railway Co., 167 U. S. 499. Interstate Commerce Commission Reports, Vol. I, p. 152. and reasonable, and if found to be unjust and unreasonable to correct that violation of the statute, and in so doing it was but reasonable to assume that the only way to do so was to prohibit the charging of an unreasonable rate and to compel the charging of one that was reasonable. 1 This power was exercised by the Commission until the Supreme Court of the United States decided 1 no such power had been granted. Up to that time, of the 135 orders made, 68 were cases where a change of rate for the future was prescribed, and most of them were observed by the railroads. The right of the Interstate Commerce Commission to fix charges and cornpel the railroads to observe them was not drawn into question until the case of the Cincinnati, New Orleans and Texas Pacific Railroad Company, first in 162 United States and next in 167 United States, and finally these two cases were affirmed in The Commission v. The Alabama Midland Railroad, which held: 66 Congress has not conferred upon the Interstate Commerce Commission the legislative power of prescribing rates, either maximum, minimum, or absolute, and it did not intend to secure the same result indirectly by empowering that tribunal, after having determined what, in reference to the past, were reasonable and just rates, to obtain from the courts a peremptory order that in the future the railroad companies should follow the rates thus determined to have been in the past reasonable and just." Cincinnati, New Orleans & Texas Pacific Railroad Co. v. Interstate Commerce Commission, 162 U. S. 106, 184. 168 U. S. 144. In dissenting from the opinion of the court, Mr. Justice Harlan said:1 "Taken in connection with the other decisions defining the powers of the Interstate Commerce Commission, the present decision goes far to make the Commission a useless body, for all practical purposes, and to defeat many of the important objects designed to be accomplished by the various enactments of Congress relating to interstate commerce. The Commission was established to protect the public against the improper practices of transportation companies engaged in commerce among the several States. It has been left, it is true, with power to make reports and issue protests, but it has been shorn by judicial interpretation of authority to do anything of an effective character. It is denied many of the powers which, in my judgment, were intended to be conferred upon it." Mr. Justice Day, in the Baird case,' said: "The inquiry of a board of the character of the Interstate Commerce Commission should not be too narrowly constrained by technical rules as to the admissibility of proof. Its function is largely one of investigation, and it should not be hampered in making inquiry pertaining to interstate commerce by those narrow rules which prevail in trials at common law, where a strict correspondence is required between allegation and proof. . . "To unreasonably hamper the Commission by narrowing its field of inquiry beyond the requirements of the due protection of rights of citizens will be to seriously impair its usefulness and prevent a realization of the salutary purposes for which it was established by Congress." 1 168 U. S. 144. 2 Interstate C. C. v. Baird, 194 U. S. 25 Circuit Judge Taft' said: "It has been suggested that traffic managers are much better able, by reason of their knowledge and experience, to fix rates, and to decide what discriminations are justified by the circumstances, than courts. This cannot be conceded, so far as it relates to the Interstate Commerce Commission, which by reason of the experience of its members in this kind of controversy and their great opportunity for full information is, in a sense, an expert tribunal.” "Generally speaking, a railroad commission is merely an administrative body, created by the State for carrying into effect the will of the State as expressed by its legislature They are purely creatures of statute and possess no powers except what the statute expressly confers upon them, and in every case their authority must affirmatively appear." 2 $156. SECOND LIMITATION CONGRESS CANNOT PRECLUDE THE JUDICIARY FROM DECLARING THAT THE FACTS WERE SO ASCERTAINED AND ESTABLISHED IN CONTRAVENTION OF LAW AS TO VITIATE THE ACTION OF THE SUBORDINATE BODY, NOR MAY IT DEPRIVE A PARTY OF HIS RIGHT TO TRIAL BY JURY WHEN SUCH RIGHT EXISTS. "The difference between the power to pass a law and the power to adopt rules and regulations in respect to a law already passed is apparent and great, and this we maintain to be a distinction recognized strikingly by the courts as the true rule in determining whether or not in such cases the legislative power is granted. The former would be unconstitutional, while the latter is not." 99 1 East Tennessee, V. & G. Ry. Co. v. I. C. C.. In the case of Tilley v. The S. F. & W. R. R. Co.,1 Judge Wood held that the legislature of Georgia had the right to delegate to a commission power to fix rates over the railroads in Georgia, and said, on p. 656: "The Constitution of the United States gives to Congress the power to levy and collect taxes; but this does not require Congress itself to assess the property of the taxpayer and collect the tax. The Constitution of Georgia clothes the general assembly with the power of taxation over the whole State, and requires taxes to be assessed upon all property ad valorem; but this does not require the legislature to investigate through its committees or otherwise and declare by an act the value of every piece of property in the State subject to taxation. "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 authority or discretion as to its execution to be exercised under and in pursuance of the law." In the case of Davidson v. City of New Orleans,' the court decided that the appointment of a board of assessors for assessing damages was not only due process of law, but the proper method for making assessments to distribute the burden of a public work among those who are benefited by it. No one questions the constitutionality or propriety of boards for assessing property for taxation or for the improvement of streets, sewers, or the like, or for commissions to establish county seats, for assessing damages under proceedings for eminent domain, and for doing many things appertaining to the administrative management of public 1 5 Fed. Rep. 641. 296 U. S. 97. |