appeal to the chancellor for an injunction to stay the action, and commence an action whereby his rights may be determined by proceedings in chancery. If he sees fit to allow the matter to go on, and if the board of health have violated the powers vested in them in removing the matter, then they become personally liable.

Were it otherwise, what would become of the community, and what would police regulations amount to? Parties must act in an emergency. If the board of health act in an emergency, still there is time left for the opposite party, if he wishes, to contest their action. Their action is not a legal judgment, such as is contemplated under the law, to which a certiorari at common law may issue.

We think, therefore, under the circumstances, that this is not a case in which a certiorari would lie, and therefore dismiss the exceptions.

SECTION 4.-SAME-ENFORCING AND DIRECTING

POWERS

COXE BROS. & CO. v. LEHIGH VALLEY R. CO. (Interstate Commerce Commission of the United States, 1891. 4 Interst. Com. R. 535, 576.) * * *

MORRISON, Commissioner.11 After submitting the proposed findings of fact for the consideration of the Commission, counsel for complainants in his concluding argument said: "As to the unreasonableness of the charge, we ask the Commission to find that the rate of $1.80 is unreasonable within the statute. We do not ask or care about your honor's establishing any particular rate. * * * There are a great many ways in which these coal rates can be determined without fixing any arbitrary or inflexible standard. * * If they [the carriers] are informed that their present rate is unreasonable, they will then meet the individual operators of their districts in consultation, and I am sure some amicable arrangement will be reached by which both parties can make money.' * * *

*

Counsel for the road said in reply; "That will not do. If this Commission says that the present rates are unreasonable, they must say so because there is a different rate they have determined to be a proper one. It will not do for you to make a general finding and to say: The present rates are unreasonable, but we do not know what they ought to be. We cannot fix them for you. You must agree upon them amongst yourselves.' If unreasonable, say to what extent they are unreasonable-whether to the extent of a cent, or of many cents, or of a dollar, a ton. Would it be proper for you to lay

11 Only a portion of the opinion is printed.

down an abstract principle that would lead to endless confusion in the application? That would put all at chaos. For Heaven's sake do not ever make the matter of the proper rates for carrying coal one to be regulated in a conference between the carrier and the shipper. If you have been convinced by these petitioners that the present rates are unreasonable and unjust, then say what the rates ought to be."

Having declared the rates in question to be unreasonable, if we should act upon the suggestion of counsel for complainants and fix upon none which may be properly charged, the case before the Commission would be at an end when the railroad company was notified that its rates were found to be excessive and must be modified. The Commission having prescribed no measure of reduction, any modification made in good faith would be a compliance with the required modification, yet it might be unsatisfactory to complainants and other operators and fall short of what the law requires. Then the occasion would be presented when the operators and carriers might meet and amicably arrange what the charges should be in accordance with the suggestion of complainants' counsel.

In such a meeting or conference of operators and carriers, where possible conflict of interest and opinion could arise, it might and most likely would occur that no satisfactory arrangement would be reached, and another application to the Commission would be necessary to declare the reduced rates still unreasonable. This process would need to be repeated until the legal rate was established by successive reductions, made in compliance with a series of determinations of the Commission that the rates were unreasonable.

In the case under consideration suppose the facts to be, as claimed, that the charges are excessive as much or more than 50 cents. Under the rule suggested by complainants' counsel, when the rate was ascertained to be unreasonable it would be so declared, and left with the shipper and carrier for amicable arrangement. If for any reason no scale of charges was agreed upon the rate would remain for determination by the carrier whose rate is challenged. Under such a rule. applied to the subject of this complaint five several proceedings would be necessary to establish the reasonable rate if in each proceeding the carrier deemed a 10-cent reduction sufficient. If, impressed with the belief that the existing rates were not exorbitant, the carrier should attempt compliance with the Commission's conclusion that they were excessive by making the least possible reductions, repeated and continual applications would be necessary to correct a single abuse. Certainly Congress intended no such absurdity as this; but, as insisted. apon by counsel for the road, when we have been convinced that rates are unjust, it will be our duty to say what they ought to be, or at least to determine upon some rate, any charge in excess of which would be unreasonable. If the duty of the Commission in respect to unjust and unlawful rates ends when it has been convinced that rates

are unreasonable, and so decided them to be, and for any reason the Commission may not determine what are, as well as what are not, reasonable, the regulation provided by the statute begins with complaint and ends in confusion.

The act to regulate commerce, which declares every unjust and unreasonable charge to be unlawful, and requires its provision to be enforced by the Commission, confers the power to determine, and imposes on the Commission the duty of determining, what are the reasonable rates which the charges may not exceed, as well as what are unreasonable.

*

INTERSTATE COMMERCE COMMISSION v. CINCINNATI, N. O. & T. P. RY. CO.

(Supreme Court of United States, 1897. 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243.)

Mr. Justice BREWER delivered the opinion of the court.12

It is one thing to inquire whether the rates which have been charged and collected are reasonable that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future -that is a legislative act. Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 458, 10 Sup. Ct. 462, 702, 33 L. Ed. 970; Reagan v. Trust Co., 154 U. S. 362, 397, 14 Sup. Ct. 1017, 38 L. Ed. 1014; Railway Co. v. Gill, 156 U. S. 649, 663, 15 Sup. Ct. 484, 39 L. Ed. 567; Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 181, 196, 16 Sup. Ct. 700, 40 L. Ed. 935; Texas & P. Ry. Co. v. Same, 162 U. S. 197, 216, 16 Sup. Ct. 666, 40 L. Ed. 940; Munn v. Illinois, 94 U. S. 113, 144, 24 L. Ed. 77; Peik v. Railway Co., 94 U. S. 164, 178, 24 L. Ed. 97; Express Cases, 117 U. S. 1, 29, 6 Sup. Ct. 542, 628, 29 L. Ed. 791.

It will be perceived that in this case the Interstate Commerce Commission assumed the right to prescribe rates which should control in the future, and their application to the court was for a mandamus to compel the companies to comply with their decision; that is, to abide by their legislative determination as to the maximum rates to be observed in the future. Now, nowhere in the interstate commerce act do we find words similar to those in the statute referred to, giving to the commission power to "increase or reduce any of the rates"; "to establish rates of charges"; "to make and fix reasonable and just rates of freight and passenger tariffs"; "to make a schedule of reasonable maximum rates of charges"; "to fix tables of maximum charges"; to compel the carrier "to adopt such rate, charge or classification as said commissioners shall declare to be equitable and reasonable." The power, therefore, is not expressly given. Whence then is it deduced?

12 Only a portion of the opinion is printed.

In the first section it is provided that "all charges * * shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful." Then follow sections prohibiting discrimination, undue preferences, higher charges for a short than for a long haul, and pooling, and also making provision for the preparation by the companies of schedules of rates, and requiring their publication. Section 11 creates the Interstate Commerce Commission. Section 12, as amended March 2, 1889 (25 Stat. 858), gives it authority to inquire into the management of the business of all common carriers, to demand full and complete information from them, and adds, "and the commission is hereby authorized to execute and enforce the provisions of this act.”

And the argument is that, in enforcing and executing the provisions of the act, it is to execute and enforce the law as stated in the first section, which is that all charges shall be reasonable and just, and that every unjust and unreasonable charge is prohibited; that it cannot enforce this mandate of the law without a determination of what are reasonable and just charges, and, as no other tribunal is created for such determination, therefore it must be implied that it is authorized to make the determination, and, having made it, apply to the courts for a mandamus to compel the enforcement of such determination. In other words, that though Congress has not, in terms. given the commission the power to determine what are just and reasonable rates for the future, yet, as no other tribunal has been provided, it must have intended that the commission should exercise the power.

We do not think this argument can be sustained. If there were nothing else in the act than the first section, commanding reasonable rates, and the twelfth, empowering the commission to execute and enforce the provisions of the act, we should be of the opinion that Congress did not intend to give to the commission the power to prescribe any tariff, and determine what for the future should be reasonable and just rates. The power given is the power to execute and enforce, not to legislate. The power given is partly judicial, partly executive and administrative, but not legislative. Pertinent in this respect are these observations of counsel for the appellees:

"Article 2, § 3, of the Constitution of the United States, ordains that the President 'shall take care that the laws be faithfully executed.' The act to regulate commerce is one of those laws. But it will not be argued that the president, by implication, possesses the power to make rates for carriers engaged in interstate commerce. * * *

"The first section simply enacted the common-law requirement that all charges shall be reasonable and just. For more than a hundred years it has been the affirmative duty of the courts 'to execute and enforce' the common-law requirement that 'all charges shall be reasonable and just,' and yet it has never been claimed that the courts, by implication, possessed the power to make rates for carriers."

*

We have, therefore, these considerations presented: First. The power to prescribe a tariff of rates for carriage by a common carrier is a legislative, and not an administrative or judicial, function, and, having respect to the large amount of property invested in railroads, the various companies engaged therein, the thousands of miles of road, and the millions of tons of freight carried, the varying and diverse conditions attaching to such carriage, is a power of supreme delicacy and importance.

Second. That Congress has transferred such a power to any administrative body is not to be presumed or implied from any doubtful and uncertain language. The words and phrases efficacious to make such a delegation of power are well understood, and have been frequently used, and, if Congress had intended to grant such a power to the Interstate Commerce Commission, it cannot be doubted that it would have used language open to no misconstruction, but clear and direct.

Third. Incorporating into a statute the common-law obligation resting upon the carrier to make all its charges reasonable and just, and directing the commission to execute and enforce the provisions of the act, does not by implication carry to the commission, or invest it with the power to exercise, the legislative function of prescribing rates which shall control in the future.

Fourth. Beyond the inference which irresistibly follows from the omission to grant in express terms to the commission this power of fixing rates is the clear language of section 6, recognizing the right of the carrier to establish rates, to increase or reduce them, and prescribing the conditions upon which such increase or reduction may be made, and requiring, as the only conditions of its action-First, publication; and, second, the filing of the tariff with the commission. The grant to the commission of the power to prescribe the form of the schedules, and to direct the place and manner of publication of joint rates, thus specifying the scope and limit of its functions in this respect, strengthens the conclusion that the power to prescribe rates or fix any tariff for the future is not among the powers granted to the commission.

These considerations convince us that under the interstate commerce act the commission has no power to prescribe the tariff of rates which shall control in the future, and therefore cannot invoke a judgment in mandamus from the courts to enforce any such tariff by it prescribed.

But has the commission no functions to perform in respect to the matter of rates, no power to make any inquiry in respect thereto? Unquestionably it has, and most important duties in respect to this matter. It is charged with the general duty of inquiring as to the management of the business of railroad companies, and to keep itself informed as to the manner in which the same is conducted, and has the right to compel complete and full information as to the man