As far as a federal interstate commerce commission is concerned it is clear that the right of congress to act is derived from what is termed the interstate commerce clause of the constitution, and from that alone. 38 This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the constitution. The power indeed over commerce with foreign nations and among the several states is vested in congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. A sound construction of the constitution therefore must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution are constitutional. Congress, too, is not limited in its employment of means to those which are absolutely essential to the accomplishment of objects within the scope of the powers granted to it. Rather it is a settled principle of constitutional law that the government which has the right to do an act and has imposed upon it the duty of performing that act, must according to the dictates of reason, be allowed to select the means The test of the

37 Hayburn's Case, 2 Dall. (U. S.)409; United States v. Todd, 13 How. (U. S.) 52; Gordon v. United States, 2 Wall. (U. S.) 561; Interstate Com. Comm. v. Brimson, 154 U. S. 447, 484.

38 United States Const., Art. I, Sec. 8.

power of congress is not the judgment of the courts that particular means are not the best that could have been employed to effect the end contemplated by the legislative department. The judiciary can only inquire whether the means devised in the execution of a power granted are forbidden by the constitution. 39 Congress, therefore, has the power to establish an adminstrative body which in turn shall have the power to call witnesses before it, and to require the production of books, documents and papers relating to the subject under investigation, and although the power of punishing for contempt for a failure to respond to such a demand, and to answer questions put to the witnesses can not be vested in a commission, as such a power involves the exercise of a judicial function, nor can such a commission be authorized to call upon the courts to aid in the punishment of such an offense against their (the commission's) dignity, it is perfectly competent however for congress to make the failure to so appear or to so testify an offense, not against the commission but against the United States which the commission or its agents may prosecute in the federal courts. 42 Such a proceeding is a case or controversy within the terms of the constitution. 4 3 The statute may also provide that in case of a failure to appear and testify, an application may be made to a federal court for an order enjoining such attendance and the giving of proper testimony, and, the order once given, a failure to obey the same may be considered and punished as a contempt of the court issuing the mandate. 4 4 That congress may not delegate legislative powers appears to be well settled. 45 It is therefore clear that it can neither appoint a commission with the purely discretionary power to fix rates as it sees

41

39 Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 1, 189, 196, 197; McCulloch v. Maryland, 4 Wheat. 316, 421, 423; Harlan, J., in Interstate Com. Comm. v. Brimson. 154 U. S. 447, 14 Sup. Ct. Rep. 1125, 1131; Sinking Fund Cases, 99 U. S. 700, 718.

40 Interstate Com. Comm. v. Brimson, 154 U. S. 447. 41 See opinion of Harlan, J., in Interstate Com. Comm. v. Brimsɔn, 14 Sup. Ct. Rep. 1125, 1136.

42 See opinion of Harlan, J., in Interstate Com. Comm. v. Brimson, 14 Sup. Ct. Rep. 1125, 1136.

48 Interstate Com. Comm. v. Brimson, 154 U. S. 447, 14 Sup. Ct. Rep. 1125.

44 Interstate Com. Comm. v. Brimson, 154 U. S. 447, 14 Sup. Ct. Rep. 1125.

45 U. S. Const. Art. I, Sec. 1; Cooley Const. Lim., 163 (7th ed.).

48

failure to conform to such schedule were also made a criminal offense. It is clear that congress cannot delegate to any inferior body the power to define a crime or to limit the common law right both to charge and to be charged reasonable rates. It is also clear that before a person or corporation can be punished for the violation of a law that law must be so definite and certain that the offender may be able to know when he is and when he is not offending. 49 If, therefore, the rate prescribed by the commission is always subject to review by the courts, and is not final, it lacks the definiteness necessary to a criminal enactment. There can, however, be no doubt of the right of congress to appoint a commission whose powers shall be administrative, investigatory and advisory, and which shall, if it pleases, have the right to report to the public and to the railroads a schedule of rates which it deems reasonable. 50 The schedule of rates thus reported may, in a civil suit to recover damages for the charging of unreasonable rates, be made prima facie evidence of that which is reasonable. 51

The commission, in short, may be used as a board of expert witnesses, and its findings made prima facie evidence much in the same manner as the findings of the commissioners in a partition suit, or in a special assessment proceeding, are usually made by statute prima facie evidence, but prima facie evidence merely of the correctness of the partition, of the assessment or of the just distribution. The suit for damages must, however, be based not on the charging of a rate higher than that designated by the commission, but on the charging of an unreasonable rate, and the report of the commission or its schedule of rates he used

46 This congress has not so far attempted to do. 47 The fact that there may be a review in the courts does not render the act less legislative or less judicial. People v. Chase, 165 Ill. 527, 46 N. E. Rep. 454.

48 Cooley Const. Lim., 163 (7th ed).

49 City of Shelbyville v. Cleveland, C. C. & St. L. R. Co. (Ind. Sup.), 44 N. E. Rep. 929: Atkinson v. Goodrich Trans. Co., 60 Wis. 141: Chicago Ry. Co. v. Jones, 149 Ill. 361; Louisville & N. R. Co. v. Comm., 35 S. W. Rep. 129.

50 Interstate Com. Comm. v. Brimson, 154 U. S. 447. 51 Chicago, Burlington & Quincy R. Co. v. Jones, 149 Ill. 361.

53

merely for the purpose of showing what is and what is not reasonable. It would be prima facie evidence merely. It would be rebuttable, not conclusive.52 It is true that it has been maintained by ome writers and judges that, following the analogy of the reciprocity cases, congress and the state legislatures can pass statutes prescribing a certain schedule of rates which shall be applicable to all railroads when coming within certain designated classes, and then leave it to the commissioners to put the statute into operation when it seems expedient to them to do so. This position however is untenable. A distinction must be made between those powers which are administrative and those which are executive. 54 It is, as we have before remarked, hardly possible that when the federal constitution provided that the execu• tive power should be vested in a president, or the people of the several states provided in their local constitutions that the corresponding power should be vested in a governor, that the right to administer was denied to other all persons and bodies. But there is a wide difference between administering a law and executing a law, between administering the constitution and executing the constitution. There is a wide difference between acting under a law and putting a law into operation; between acting under a law and abrogating a law. In the English and American governmental systems the executive is coordinate, the administrative is subordinate. 5 6 A perusal of the cases will show that a delegation of a certain amount of administrative power has always been conceded to be proper, but that where the delegation of executive powers has been tolerated it has always been a delegation to an executive officer. In the reciprocity cases the power to put the laws into operation or to abrogate them was delegated to the president of the United States, the executive officer designated by the constitution, and not to a subordinate board or * official. 57 It is true that there are some cases in the state courts which are quoted as

52 Chicago, M. & St. P. Ry. Co. v. Minnesota, 10 Sup. Ct. Rep. 462, 134 U. S. 418.

53 Field v. Clark, 12 Sup. Ct. Rep. 494.

54 Goodnow's Compr. Adm. Law, Vol. 1, p. 62, et seq.

55 See note 15 ante.

56 The Federalist, No. 47.

57 Field v. Clark, 12 Sup. Ct. Rep. 494.

holding to a different rule. 5 8 They are nearly all however cases where the act authorized was the exercise of the right of local home rule in strictly local police matters or in matters of private corporate and property s opposed to political and governmental rights. The acts passed upon were acts authorizing subscriptions to railroad bonds, if the localities so desired, and which left it to the localities to themselves decide whether to subscribe or not.59 They were local option statutes which gave to the localities the power to refuse to grant licenses for the sale of intoxicating liquors.60 In such cases the public law was made, the public policy declared by the legislatures. It was made unlawful to sell liquor without a license. It was left to the locality to say whether the license should be granted. The municipal body was not given the power to prescribe a rule of conduct, to create a crime or to put a law into operation.

The same general principles must be applied when the railroad commissions of the several states are considered. In most of the states are to be found constitutional provisions similar to those to be found in that of the United States and which vest the executive power in the governor; the judicial in certain specified courts and in such others as the legislatures may from time to time create, and the legislative in the state legislature. In them, as in the federal constitu tion, nothing is as a rule definitely said about a union of powers, but back of and beneath the legal structure of every state, as back of that of the United States itself, are the English constitutional traditions which Baron Montesquieu merely repeated and emphasized when he laid down his famous maxims in relation to the separation of the departments of power and which Madison and Hamilton so ably expounded. Many of the state con6 1 stitutions, however, have no provision for the appointment or creation of any courts other than those expressly enumerated, and in such states a special railroad court would therefore

58 Railroad Company v. Commissioners, 1 Ohio St. 86; Locke's Appeal, 72 Pa. St. 491.

69 Railroad Company v. Commissioners, 1 Ohio St. 86.

60 Locke's Appeal, 72 Pa. St. 491.

61 Montesquieu, Spirit of Laws (Nugent's Trans.), ook X., ch. 6; The Federalist, Nos. 47, 48, 49, 50, 51.

be a constitutional impossibility. It is true that in some of the states the courts have held that it is perfectly competent for the legislative body to delegate to a commission a part of its legislative powers and to give to such commission the power to definitely fix a schedule of rates which shall be operative in the future. 6 2 These holdings however are justified merely by a quibble on words and the use of the term quasi-administrative. The doctrine is laid down that although a legislature may not delegate its strictly legislative powers, it may yet delegate authority to regulate certain matters which in the nature of things require regulation of a quasi-administrative character, and which in the nature of things could not be satisfactorily regulated by the legislature alone. 6 3 It will, the writer believes, be evident to anyone who will scrutinize the opinions in the cases, that the conclusions arrived at are the result of expediency rather than of the application of legal principles. The invention of the term quasi-administrative does not help the matter. The determination of the question whether an act is legislative, judicial or administrative does not depend upon the nature of the body entrusted with its doing, but upon the nature of the act itself, 64 When Mr. Justice Woods 65 justified the railroad commission law of Georgia by saying that "the true distinction therefore is between the delegation of the power to make the law, which necessarily involves the discretion as to what it shall be, and conferring an authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter no objection can be made," he did not correctly state the statute of Georgia, for the act in question gave to the commission the power to make a law, that is to prescribe a schedule of rates which should be operative in the future and furnish a rule for future conduct, and thus to determine the point at

62 Georgia R. R. Co. v. Smith, 70 Ga. 694; Tilley v. Railway Co., 4 Woods (C. C.), 427; McWhirter v. Pensacola Ry. Co., 24 Fla. 417, 471; Express Co. v. R. R. Co., 111 N. Car. 463, 472; Chicago, etc., Ry. Co. v. Dey, 35 Fed. Rep. 866.

63 Georgia R. R. Co. v. Smith, 70 Ga. 694.

64 People v. Chase, 165 Ill. 527, 46 N. E. Rep. 455.

65 Tilley v. Railway Company, 4 Woods (C. C.), 427, 466.

which the crime of extortion would begin.66 So too it is doubtful whether the proposition, even if applicable to the act in question, was sound. Is it a well and established principle that the federal congress or a state legislature, may pass an act and then leave it to the discretion of an administrative officer or body as to whether or not it shall be put into operation? It is true that in a number of cases it has been held that this power can be entrusted to the president of the United States, 67 but the president of the United States is an executive officer. 68 Is not this power of putting a statute into operation or of abrogating its provisions essentially an executive as opposed to an administrative power. 6

69

If railroad and other similar commissions there must be, and there is a strong argument for them, is there anything to be gained in the long run by twisting the constitutions state and national beyond all recognition. Is it not time to realize that conditions have radically changed since the adoption of these instruments both in the states and in the nation; that the constitution of the United States was adopted and ratified in an age when there were no railroads, no great combinaions of either capital or labor, and no foreign possessions; that in many of the states the constitutions of an agricultural era are being sought to be made over and construed to meet the needs of a manufacturing community. Is there not a demand for constitutional amendments rather than for constitutional miscon structions? Does not each new distortion, each new surrender of basic principle and of irresistible logic, pave the way for still further surrender, make the law less and less certain, and encourage that class of lawyers, now only too common, whose main business seems to be to teach their clients how to violate the basic principles of society and human kinship and by the weapons of delay and obstruction to hinder if not prevent all progress and all reform.

ANDREW ALEXANDER BRUCE.

University of North Dakota.

Georgia R. R. Co. v. Smith, 70 Ga. 694. 67 Field v. Clark, 12 Sup. Ct. Rep. 494. 68 U. S. Const. Art. II., Sec. 1. 69 Bouvier's Law Dict. p. 717.

LIABILITY OF COMMON CARRIER IN UNLOADING CARS AFTER NOTICE.

BECKER v. PENNSYLVANIA R. CO.

New York Supreme Court (App. Div.), Nov. 29, 1905. After the lapse of a reasonable time for the consignee to remove the goods after he has been given notice of their arrival at their destination, the liability of the common carrier as such ceases, and its liability thereafter, if any, is that of a warehouseman. A carrier was not negligent in failing to unload semiperishable evaporated apples after notifying the consignee of their arrival at destination, in the absence of evidence that it knew, or in the exercise of reasonable diligence should have known, that the apples would have been in better condition if unloaded.

MCLENNAN, P. J.: The plaintiffs, who were copartners, delivered three car loads of evaporated apples, containing about 500 boxes each, to the Chesapeake & Ohio Rallway Company at Staunton, Va., for shipment to Jersey City, over its railroad and connecting lines, one of which was the railroad of the defendant which extended to said city. One of the cars left Staunton on September 30, another October 1, and the third October 8, 1901. On what dates they were received by the defendant, or at what point on its railroad, does not appear. The cars containing the apples arrived, however, at defendant's pier in Jersey City, the terminal of its railroad, where its yard and tracks are located, as follows: The first car, which left Staunton September 30th, arrived October 3d, the second, shipped October 1st, on October Sth, and the third car, which left Staunton October 8th, reached defendant's pier October 12, 1901; the first and third cars having been in transit four days and the second seven days. Notice of the arrival of each car was immediately given by the defendants to the plaintiffs by mail at Fairport, N. Y., their place of residence, which notices they received in due course. They, however, did not claim or seek to take possession of the property until some time in the month of January following, when they removed it from defendant's pler. On the 16th or 17th of October, 1901, one Jacobson, a witness called by the plaintiffs, for them or by their authority examined the apples in the car which arrived October 3d, the one that left Staunton first, and found that the apples were then damaged, were slightly fermented, had commenced to turn in color, and were heated. Three or four days afterwards he examined the car load which arrived October 8th, and three or four weeks later examined the apples in the last car, and which reached its destination October 12, 1901. The witness testified: "The second car I found the same as the first; all three of them the same way. * * * My examination of the third car showed the condition to be about the same as the other two cars, slightly fermented and off color."

The witness testified, in substance, that when