CommTM cautfix max. rates

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(a)

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

a

ner in which such carriers are transacting their business. And, with numerato this knowledge, it is charged with the duty of seeing that there is no violation of the long and short haul clause; that there is no discrimination between individual shippers, and that nothing is done, by rebate or any other device, to give preference to one as against another; that no undue preferences are given to one place or places or individual or class of individuals, but that in all things that equality of right, which is the great purpose of the interstate commerce act, shall be secured to all shippers. It must also see that that publicity which is required by section 6 is observed by the railroad companies. Holding the railroad companies to strict compliance with all these statutory provisions, and enforcing obedience to all these provisions, tends, as observed by Commissioner Cooley in Re Chicago, St. P. & K. C. Ry. Co., 2 Interst. Com. R. 231, 261, to both reasonableness and equality of rate, as contemplated by the interstate commerce act.

We have not overlooked the statute of Nebraska, nor the decision of hebr. stat was the Supreme Court of that state in respect thereto. This statute was

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approved March 31, 1887, a few weeks after the passage of the inter->s than SCC diffi agave comim

state commerce act (Laws Neb. 1887, p. 540), and was obviously largely
patterned upon that act. The general obligations incorporated into
that act in respect to reasonableness of rates, prohibitions of discrim-
ination, undue preferences, etc., are all in the Nebraska statute.
commission, called "a board of transportation," is also provided for
(section 11), and is charged with the general duty of enforcing the
act and supervising the railroad companies in the state. Section 17,
which is more full and specific than any to be found in the interstate
commerce act, provides that "said board shall have the general super-
vision of all railroads operated by steam in the state, and shall in-
quire into any neglect of duty or violation of any of the laws of this
state by railroad corporations. * * * It shall carefully investigate
any complaint made in writing, and under oath, concerning any lack
of facilities, * * * or against any unjust discrimination against.
either any person, firm, or corporation or locality, either in rates, fa-
cilities furnished or otherwise; and whenever, in the judgment of said
board *
* any change in the mode of conducting its business.
or operating its road is reasonable and expedient in order to promote
the security and accommodation of the public, or in order to prevent
unjust discriminations against either persons or places; it shall make
a finding of the facts, and an order requiring said railroad corporation
to make such repairs, improvements," etc.

*

In State v. Fremont, E. & M. V. R. Co., 22 Neb. 313, 35 N. W. 118, it appeared that the board of transportation had found that certain. rates enforced upon the road of the defendant company were excessive, and that certain other rates, less than those in force, were reasonable and just. On application to the supreme court it was held that the state was entitled to a mandamus compelling obedience to such determination, the court observing (page 329, 22 Neb., and page 125, 35

has

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N. W.): "In the case under consideration the board found that the rates and charges of the respondent were excessive; in other words, that there was unjust discrimination against that part of the state, and, having so found, the board is clothed with ample power to require such railway company to reduce its rates and charges. The power of the board, therefore, to establish and regulate rates and charges upon railways within the state of Nebraska is full, ample, and complete." Without criticising in the least the logic of this decision, it is enough to say that it is based upon a section which gives wider and more comprehensive power to the supervising board than is given in the interstate commerce act to the commission, and does not justify the inference that the latter has the same power in respect to prescribing rates that by such decision was declared belonging to the Nebraska board of transportation.

Some reliance was placed in the argument on this sentence, found in the opinion of this court in Cincinnati, N. O. & T. P. Ry. Co. v. Interstate Commerce Commission, 162 U. S. 184, 196, 16 Sup. Ct. 700, 705, 40 L. Ed. 935: "If the commission, instead of withholding judgment in such a matter until an issue shall be made and the facts found, itself fixes a rate, that rate is prejudged by the commission as reasonable." And it is thought that this court meant thereby that, while the commission was not in the first instance authorized to fix a rate, yet that it could, whenever complaint of an existing rate was made, give notice and direct a hearing, and upon such hearing determine whether the rate established was reasonable or unreasonable, and also what would be a reasonable rate if the one prescribed was found not to be, and that such order could be made the basis of a judgment in mandamus requiring the carrier thereafter to conform to such new rate. And the argument is now made, and made with force, that, while the commission may not have the legislative power of establishing rates, it has the judicial power of determining that a rate already established is unreasonable, and with it the power of determining what should be a reasonable rate, and enforce its judgment in this respect by proceedings in mandamus.

The vice of this argument is that it is building up indirectly, and

porns & Commne porn by implication, a power which is not, in terms, granted. It is not to be to declarea rate un месова Cong. won grant the porrionego prior ingy rexam? thas not provided suffer.

supposed that Congress would ever authorize an administrative body to establish rates without inquiry and examination; to evolve, as it were, out of its own consciousness, the satisfactory solution of the

difficult problem of just and reasonable rates for all the various roads in the country. And, if it had intended to grant the power to establish rates, it would have said so in unmistakable terms.

In this

'connection it must be borne in mind that the commission is not limited in its inquiry and action to cases in which a formal complaint has been

made, but, under section 13, "may institute any inquiry on its own mo

Riese. Cong creases have tion in the same manner and to the same effect as though complaint said so on unmistak had been made." By section 14, whenever an investigation is made

Mundetail

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by the commission it becomes its duty to make a report in writing, op which shall include a finding of the facts upon which its conclusions et our explicetf are based, together with a recommendation as to what reparation, if any, ought to be made to any party or parties who may be found to have been injured. And by sections 15 and 16, if it appears to the satisfaction of the commission that anything has been done or omitted to be done in violation of the provisions of the act, or of any law cognizable by the commission, it is made its duty to cause a copy of its report to be delivered to the carrier, with notice to desist, and, failing that, to apply to the courts for an order compelling obedience.

There is nothing in the act requiring the commission to proceed madunery of

singly against each railroad company for each supposed or alleged violation of the act. In this very case the order of the commission was

comms or hack directed against a score or more of companies, and determined the ill adapted to

maximum rates on half a dozen classes of freight from Cincinnati and Chicago respectively, to several named Southern points and the territory contiguous thereto, so that if the power exists, as is claimed, there would be no escape from the conclusion that it would be within the discretion of the commission of its own motion to suggest that the interstate rates on all the roads in the country were unjust and unreasonable, notify the several roads of such opinion, direct a hearing, and upon such hearing make one general order, reaching to every road and covering every rate. It will never do to make a provision prescribing the mode and manner applicable to all investigations and all actions equivalent to a grant of power in reference to some specific matter not otherwise conferred. * * *

Our conclusion, then, is that Congress has not conferred upon the commission the legislative power of prescribing rates, either maximum or minimum or absolute. As it did not give the express power to the commission, it did not intend to secure the same result indirectly by empowering that tribunal to determine what in reference to the past was reasonable and just, whether as maximum, minimum, or absolute, and then enable it to obtain from the courts a peremptory order that in the future the railroad companies should follow the rates thus determined to have been in the past reasonable and just.

The question certified must be answered in the negative, and it is so ordered.13

Mr. Justice HARLAN dissented.

13 Section 15 of the interstate commerce act of 1887 (Act Feb. 4, 1887, c. 104, 24 Stat. 384 [U. S. Comp. St. 1901, p. 3165]) read, until 1906, as follows: "If in any case in which an investigation shall be made by said commission it shall be made to appear to the satisfaction of the commission, either by the testimony of witnesses or other evidence, that anything has been done or omitted to be done in violation of the provisions of this act, or of any law cognizable by said commission, by any common carrier, or that any injury or damage has been sustained by the party or parties complaining, or by other parties aggrieved in consequence of any such violation, it shall be the duty of the commission to forthwith cause a copy of its report in respect thereto to be delivered to such common carrier, together with a notice to said common car

fixq rates

Fr. 26,388

↑ ECKHARDT v. CITY OF BUFFALO.

(Supreme Court of New York, Appellate Division, Fourth Department, 1897.
19 App. Div. 1, 46 N. Y. Supp. 204.)

* *

GREEN, J.1 By section 237 of the city charter "the commissioner
shall have full power to enforce and carry out all ordinances, rules
and regulations for the preservation of the public health, *
and in case any business or practice is dangerous or detrimental to the
public health, to prohibit the same, and to declare unwholesome
grounds, yards, cellars, buildings and other places, stagnant or un-
wholesome waters, filth and unwholesome matter injurious to health, to
be nuisances, and upon so declaring, the commissioner shall have power
to abate the same in such manner as he may deem expedient, and the
expense may be assessed upon the lands upon or in front of which
such nuisances were, or upon the parcels of land benefited by the abate-
ment of the nuisance, as the common council shall direct." Laws
1891, c. 105.

rier to cease and desist from such violation, or to make reparation for the
injury so found to have been done, or both, within a reasonable time, to be
specified by the commission; and if, within the time specified, it shall be
made to appear to the commission that such common carrier has ceased from
such violation of law, and has made reparation for the injury found to have
been done, in compliance with the report and notice of the commission, or to
the satisfaction of the party complaining, a statement to that effect shall be
entered of record by the commission, and the said common carrier shall
thereupon be relieved from further liability or penalty for such particular
violation of law."

** * *

This provision was changed by Act June 29, 1906, c. 3591, § 4, 34 Stat. 589
(U. S. Comp. St. Supp. 1909, p. 1158), as follows: "The commission is au-
thorized and empowered, and it shall be its duty, whenever, after full hear-
ing upon a complaint made as provided in section 13 of this act, or of any
common carrier, it shall be of the opinion that any of the rates, or charges
whatsoever, demanded, charged, or collected by any common carrier or carri-
ers, subject to the provisions of this act, for the transportation of persons or
property,
or that any regulations or practices whatsoever * *
affecting such rates, are unjust or unreasonable, or unjustly discriminatory,
or unduly preferential or prejudicial, or otherwise in violation of any of the
provisions of this act, to determine and prescribe what will be the just and
reasonable rate or rates, charge or charges, to be thereafter observed in such
case as the maximum to be charged; and what regulation or practice in
respect to such transportation is just, fair, and reasonable to be thereafter
followed; and to make an order that the carrier shall cease and desist from
such violation, to the extent to which the commission find the same to exist,
and shall not thereafter publish, demand or collect any rate or charge for
such transportation in excess of the maximum rate or charge so prescribed,
and shall conform to the regulation or practice so prescribed. All orders of
the commission, except orders for the payment of money, shall take effect
within such reasonable time, not less than thirty days, and shall continue in
force for such period of time not exceeding two years, as shall be prescribed
in the order of the commission, unless the same shall be suspended or modi-
fied or set aside by the commission or be suspended or set aside by a court
of competent jurisdiction."

Compare In re Janvrin, 174 Mass. 514, 55 N. E. 381, 47 L. R. A. 319 (1899);

FN 385 People, ex rel. Central Park, N. & E. R. Co. v. Willcox, 194 N. Y. 383, 87 N.- hate more jol

E. 517 (1909); State v. Johnson, '61 Kan. 803, 60 Pac. 1068, 49 L. R. A. 662
(1900).

14 The statement of facts and a portion of the opinion are omitted.

may a state wo contrare, ing the US. Consts confer you forms on an adm body? of Reetz mich", 1988 US507 ..." We Know of no frours in the bad const" who forbeds a St. fromfranty to a tribunal whether called a ct or a bed of registration the final debomination of a legal on. Indeed it not infrequently happens that a full discharge of then dubles helo bosor pro of a purely ministival character to consider "diliomine nature. One process is not necessanty for process' '9'