Not every railroad rate must afford a compensation for the particular service involved in it in order to avoid the prohibition of the Fifth Amendment of the Constitution of the United States. That amendment guarantees the integrity of the railway property, and the question of just compensation would not arise unless a showing was made that, on the whole, the order of the Commission had so interfered with the earnings of the company as to invade the integrity of its property. Although in each case, there can be considered only the rates involved in the complaint made, yet it may well appear that the deduction of one mill from the rate would if applied to the whole volume make the entire service or the service in that class of traffic a net loss. This point was made by Mr. Justice Brewer in the Kansas City Stock Yards case,' as was the point that the fact that a railroad makes large profits does not of itself show that any individual rate is unreasonable.

A single railroad rate may be a small fraction of what would be a just compensation, yet the volume of traffic might make the whole profitable. The railroad may not fairly charge off sacrifice rates to the rate to be judged, for the cost of the actual service may in most cases be determined with all human fairness. Although the railway doctrine of charging what the traffic will bear comes into conflict with the cost of service basis of charge, the difficulty in determining the relation of cost to price in railroad rates is different only in degree from the same question as to other kinds of service. That a court cannot arrive at a satisfactory decision in every case is of no importance, for if the court cannot the commission cannot, and in such cases

1 Cotting v. Kansas City Stock Yards Co., 183 U. S. 91.

the rate should be left untouched on two principles, first, de minimis non curat lex, and, second, the law leaves an unavoidable damage where it falls.' Nothing in the Constitution requires a court, certainly not a commission, to change a rate the unreasonableness of which cannot be demonstrated. A rate that is demonstrably unreasonable to one party or the other is confiscatory; a rate that is not demonstrably unreasonable is not confiscatory. If there are gradations of reasonableness in the price for the use of property, they are too fine for a basis of governmental interference and should be left to be appreciated by the mind of the one who thinks he got the better of the bargain. If there is any depth or breadth in that test, the railroads and the courts can sound it or span it by the same right as Congress. The truth does not lie in any distinction between the power of the railroad, the State legislature, Congress, or the Court. Each enforces the

1 Holmes, Common Law.

Noyes, on American Railroad Rates, p. 250, says: "It seems impossible to draw a constitutional statute conferring upon a court power to review upon the facts the action of the Interstate Commerce Commission." His reasoning is that the Commissionmade rate is the law of Congress and that the reasonableness of the law must be reviewed apart from its content - a ridiculous statement. The law is nothing until the rate is made, then the law is the rate, and a review of the reasonableness of the law is a review of the reasonableness of the rate. The impossibility lies in drawing a constitutional law which does not confer upon a court expressly or impliedly by operation of the Constitution power to review upon the facts the action of the Commission in making a rate. See Messenger v. Railroad, 8 Vroom, 531, supra, and end of section 139. See a denial of the doctrine of comparative reasonableness by Harlan, J., in Smyth v. Ames, 169 U. S. 466, 540. The fact that value depends on earning power does not extend the guaranty of property to a capitalization of unreasonable charges. See Morawetz, Harvard Law Review, Vol. XVIII, 574.

same thing

just compensation. The objective of the restraint upon each is the same the right of the individual. The words of the command upon each are the same those of the Fifth Amendment epitome of the common law.

§ 157. THIRD LIMITATION CONGRESS

the

CANNOT

TAKE AWAY FROM THE PARTIES THE RIGHT OF APPEAL TO THE Courts either for TEMPORARY OR FINAL, EQUITABLE OR LEGAL Relief, nor from THE COURTS THEIR JURISDICTION, ORIGINAL OR APPELLATE, LEGAL OR EQUITABLE, IN THE PREmises, where it is vested BY THE CONSTITUTION.

Congress has no power to dispossess the courts of their jurisdiction to fix compensation, neither can Congress prescribe finally a rule by which the compensation shall be ascertained. All this is settled in the case of Monongahela Navigation Co. v. The United States: "

1

"By this legislation Congress seems to have assumed the right to determine what shall be a measure of compensation. But this is a judicial and not a legislative question. The legislature may determine what private property is needed for public purposes that is a ques

tion of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public-taking the property, through Congress or the legislature, its representative to say what compensation shall be paid,

1 148 U. S. 312, p. 327. See also Boom Co. v. Patterson, 98 U. S. 403; Lewis on Eminent Domain, § 601; Northport Water Supply Co., Gloucester Water Supply Co., L. I. Water Co. v. Brooklyn, 166 U. S. S. Ct., Abbott's N. C. 1872, 144 N. Y.

2 Difficulty of determining reasonableness of rate, elaborate discussion in Kennebec Lakes District v. Waterville, 97 Me. 185; Brunswick & Topsham Water District v. Maine Water Co., 99 Me. 71.

or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry. In Charles River Bridge v. Warren Bridge,1 Mr. Justice McLean, in his opinion, referring to a provision for compensation, found in the charter of the Warren Bridge, uses this language: "They (the legislature) provide that the new company shall pay annually to the college, in behalf of the old one, one hundred pounds. By this provision it appears that the legislature has undertaken to do what a jury of the country only could do assess the amount of compensation to which the complainants are entitled.' See also the following authorities: Commonwealth v. Pittsburg and Connellsville Railroad; 2 Penn. Railroad v. Baltimore and Ohio Railroad; Isom v. Mississippi Central Railroad.'

3

"We are not, therefore, concluded by the declaration in the act that the franchise to collect tolls is not to be considered in estimating the sum to be paid for the property."

A rate fixed by a commission after a hearing would be by enactment. Until the commission has made an order there is no act of Congress covering the case. The rate fixed by the railroad and acted upon by the public is, in the absence of complaint, presumably reasonable. That it must be is the only concrete expression of the legislative will. But that presumption cannot be rebutted conclusively except by legal proof, by a day in court. The finding or enactment of the commission is only prima facie evidence. This is at

1 II Pet. 420, 571.

5

2 58 Penn. St. 26, 50.

3 60 Md. 263.
36 Miss. 300.

C. M. & St. P. R. R. Co. v. Minnesota, 134 U. S. 418; Reagan v. F. L. & T. Co., 154 U.S. 362; San Diego L. Co. v. Jasper, 89 Fed. 274; L. & N. R. R. Co. v. McChord, 103 Fed. 216.

most an exact counterbalance of the original presumption. If the rate fixed by the commission enjoyed the presumption of constitutionality granted in favor of an act of Congress, it would itself be the act of Congress and thus a fatal delegation of legislative power.

.

If the government owned the railroads the carrier and the shipper would be in their present necessity, the one of accepting service from what is in most cases a natural monopoly, and the other of performing service for all. The charge of the government would be not a tax but a price and would be presumed to be reasonable. The burden would be upon the moving party and would be shifted only for cause shown. The difficulty of granting temporary relief would be enhanced in this case, first, from the difficulty of impounding sums on repeated operations to a ruinous aggregate; second, the unsuableness of a bond under the circumstances; and, third, by the difficulty in determining who really paid the freight to be refunded. Courts are slow to grant relief except during the negligible space of time necessary to show cause when that relief disturbs existing conditions. In the case of a railroad rate, which is the fuel of a fire that must not go out, the disturbance of conditions pendente lite is equivalent to a permanent disturbance. The right to demand the difference if the rate temporarily set aside were justified would be valueless on account of the smallness of single items (the rate in issue being typical of thousands included in the order), the indefiniteness of responsible persons, and the abandonment of the carrier's lien for freight. To answer that a denial of a lower rate pendente lite would work the same hardship on the complainant merely asserts that the end sought to be attained by proof is