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affected by the Act; and the other between the different States, territories or foreign countries, where he is bound to comply with the terms of the Statute.




Y the last paragraph of Section 1. the


compensation of common carriers is fixed, and it is there declared that "all charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful." (Sec. 1.)

And the fourth section of the Act makes it unlawful for the carrier to charge or receive any greater compensation for a shorter than for a longer haul, irrespective of the question as to whether such compensation is "reasonable and just." It is an absolute prohibition. (Sec. 4.)

First The first question which naturally

arises under this section is as to the power of Congress to fix the charges of common carriers.

Is this a "regulation of commerce" within the meaning of the Constitution?

Some light is thrown upon this matter by the x X opinion of the Supreme Court of the United States (Munn v. Illinois, 94 U. S., 113), where the general subject is fully examined, and where the court held, that, under the powers. inherent in every sovereignty, a government may regulate the conduct of its citizens towards. each other, and, when necessary for the public good, the manner in which each shall use his. own property. It has in the exercise of these powers been customary in England from time. immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, inn-keepers, etc., and in so doing to fix a maximum of charge, to be made for services rendered, accommodations furnished, and articles sold. When the owner of property devotes it to a use, in which the public has an interest, he, in effect, grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public for the common good as long as he maintains the use.

He may withdraw his grants by discontinuing the use. The Supreme Court, in the same case, held that common carriers exercise a sort of public office, and have duties to perform in which the public is interested. Their business is therefore affected with a public interest.


Mr. Chief-Justice Waite, who delivered the opinion of the court in that case, said: countries where the common law prevails, it has been customary from time immemorial for the Legislature to declare what shall be a reasonable compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any charge made would be unreasonable. Undoubtedly, in mere private contracts relating to matters in which the public has no interest, what is reasonable must be ascertained judicially, but this is because the Legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is

implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms or forego the use. (See also Chicago, Burlington, and Quincy R. R. Co. v. Iowa, 94 U. S., 155; Peik v. Chicago, etc., Ry. Co., 94 U. S., 164.)

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But the reasoning of these cases does not cover, it seems, the fourth section of the law which we are considering, because Congress does not attempt to fix therein any limit or price of compensation for the carrier; but arbitrarily declares that a common carrier shall not receive a greater or as great a compensation for a short as for a long haul, entirely irrespective of the merits of the service, and what it is reasonably and justly worth.

Second: The next point that will arise, assuming the power of Congress to fix the charges, is as to what constitutes a “reasonable and just charge.

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As the law stood before the Inter-State Commerce Act passed—at common law-if the parties to a contract did not stipulate the amount to be paid for any given service, the sum recovera

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