freight. On the other hand, it is no concern of the public, the government, or the Constitution whether the rate is remunerative. The giving of sacrifice rates to others, poor management, and other causes may determine whether a rate is remunerative more than the justness of the compensation for the property used. The railroad is forced by law to serve all who apply; that is the requirement which the law makes of those engaged in a public calling. What the Constitution gives the courts jurisdiction of is to determine whether a governmental department, body, or agent is forcing the acceptance of less than "just compensation" or is refusing the test of this compensation by due process of law. In order to perform its duty in making this decision, the court must have complete power over the entire question. The court would not interfere unless the constitutional provision were violated.' The unconstitutional ty of a statute upon the ground that it is a regulation of commerce which gives the ports of one State preference over those of another need not be considered, for a rate law which would be constitutional as outlined above would not involve the direct or indirect giving of such preference and an unconstitutional statute upon the ground of such preference would for the same reason be unconstitutional upon the other grounds outlined above. As 1 San Diego Land Co. v. National City, 174 U. S. 739, 754. to temporary remedy to avoid multiplicity of suits and to make the remedy effective, see C. etc. R. R. Co. v. Minnesota, 134 U. S. 418, 460; St. L. etc. R. R. Co. v. Gill, 156 U. S. 649; Smyth v. Ames, 169 U. S. 466, 518; I. C. C. v. R. R., 64 Fed. 981; Shinkle v. R. R., 62 Fed. 690; C. etc. Gas Co. v. Cleveland, 71 Fed. 610, 615; C. C. Gas Co. v. Des Moines, 72 Fed. 818. CHAPTER VIII THE JURISDICTION OF THE FEDERAL COURTS OVER § 167. THE CONSTITUTIONAL JURISDICTION OF THE FEDERAL COURTS. What courts would have jurisdiction of the controversy between the shipper and the railroad? If the matter were brought originally without previous submission to the jurisdiction of the commission, there is no reason why any State court of highest original jurisdiction or any Federal court could not entertain a controversy based upon the constitutional question involved, subject, in the one case, to the removal statutes, and in the other to the designation by act of Congress of a particular tribunal. This act could not deprive the Supreme Court of the United States of final determination, nor the inferior court of the right to exercise full jurisdiction and to give provisional relief so long as the matter was before it; though the Supreme Court could enjoin the inferior courts. This is for two reasons: first, jurisdiction when vested is complete and unconditional; and, second, the preservation of the status quo pending adjudication is the exercise of jurisdiction which can only be objected to and restrained by the Supreme Court of the United States. In the case of a State statute, there is a serious objection to a construction in the first instance by the United States Supreme Court, for the act may be so construed by the highest State court as to be constitutional while capable on its face of a different construction. But this objection merely shows the desirability of a uniform basis of decision. The Constitution provides for the judiciary as follows: ARTICLE III. THE JUDICIAL DEPARTMENT. SECTION I. The United States Courts. "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. SECTION II. Jurisdiction of the United States Courts. "Ist Clause. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects. "2d Clause. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. "3d Clause. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." Judicial power was defined by Chief Justice Marshall in Osborn v. Bank,' as follows: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law and can will nothing. When they are said to exercise a discretion it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and when that is discerned it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law." Mr. Justice Iredell, in speaking of Congress and the Court, said in Chisholm v. Georgia: 2 "There is no part of the Constitution that I know of that authorizes this court to take up any business where they left it, and in order that the powers given in the Constitution may be in full activity supply their omission by making new laws for new cases, or, which I take to be the same thing, applying old principles to new cases materially different from those to which they were applied before." In Martin v. Hunter's Lessee,' Mr. Justice Story said: The object of the Constitution was to establish three great departments of government: the legislative, the executive, 19 Wheat. 738. 2 2 Dallas, 3 453. I Wheat. 334. and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter, it would be impossible to carry into effect some of the express provisions of the Constitution. How, otherwise, could crimes against the United States be tried and punished? How could causes between two States be heard and determined? The judicial power must, therefore, be vested in some court, by Congress; and to suppose that it was not an obligation binding on them, but might, at their pleasure, be omitted or declined, is to suppose that, under the sanction of the Constitution, they might defeat the Constitution itself. A construction which would lead to such a result cannot be sound. "If, then, it is the duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all. If it were otherwise, this anomaly would exist, that Congress might successively refuse to vest the jurisdiction in any one class of cases enumerated in the Constitution, and thereby defeat the jurisdiction as to all, for the Constitution has not singled out any class on which Congress are bound to act in preference to others. "The next consideration is as to the courts in which the judicial power shall be vested. It is manifest that a Supreme Court must be established; but whether it be equally obligatory to establish inferior courts is a question of some difficulty. If Congress may lawfully omit to establish inferior courts, it might follow that in some of the enumerated cases the judicial power could nowhere exist. The Supreme Court can have original jurisdiction in two classes of cases only, namely, in cases affecting ambassadors, other public ministers, and consuls, and in cases in which a State is a party. Congress cannot vest any portion of the judicial power of the United States, except in courts ordained and established by itself; and if in any of the cases enumerated in the Constitution, the State courts did not then possess |