factors, the general and comparative levels in market value of the various classes and kinds of commodities as indicated over a reasonable period of years.

The third and last paragraph of the resolution requires a special investigation to be made concerning rates on agricultural products, including livestock, in order that such commodities may be accorded the lowest possible lawful rates compatible with the maintenance of an adequate transportation system. The purpose in view here is the promotion of the freedom of movement of agricultural products, including livestock. This paragraph discloses the view of Congress to the effect that a depression in agriculture existed at the time the resolution was passed. The resolution was approved by the President January 30, 1925.

The first test in court of this resolution involved an order of the Interstate Commerce Commission reducing the rates for the transportation of fresh deciduous fruits from California to eastern points. The United States District Court sustained the order of the Commission, and it was appealed by the carriers to the United States Supreme Court.373 The Supreme Court, however, disagreed with the court below and held the Commission's order invalid. For a discussion of the Supreme Court's decision, see Section 107, post.

§ 66. Commission May Suspend Changes in Rates.-Heretofore the carriers could make any increase in rates or any change in regulations, however unjust, and the Interstate Commerce Commission could not stay the advance or prohibit the regulation until after a long delay, during which an investigation was had. Some of the Circuit Courts and Circuit Courts of Appeals held that an illegal advance could be enjoined, other courts held the contrary, and the Supreme Court has never determined the question. The Amendments of 1910 and 1920 provide that the operation of such advance or regulation may be suspended or deferred by the Interstate Commerce Commission until after an investigation by the Commission. A Senate Committee had, in 1906, reported against giving

373 See Ann Arbor R. R. Co. v. U. S., 30 Fed. (2d), 940, reviewing order of the Interstate Commerce Commis

sion in California Growers' and Shippers' Protective League v. Sou. Pacific Co., 129 I. C. C. 25, 132 I. C. C. 582.

such power to the Commission, and it must be admitted that this power in the Commission was a fundamental departure in the regulation of common carriers. Theretofore the right of the carrier to initiate rates was not subject to the control of the Commission, since, while the carrier may initiate a rate or regulation, such right is subject to the control of the Commission. This law prevents the delay and injury which shippers suffered, who had, theretofore, to file their complaints against illegal advances and rely on the tiresome, expensive and inadequate remedy by reparation. Section 15, as amended, gives the shipper certain rights with reference to through routes and prohibits carriers and their agents from giving information with reference to shipments. The burden of proof to show the justness and reasonableness of an advance is on the carrier. This burden was on the carrier prior to the Act of 1910, when a rate long in existence was advanced, although there have been some opinions expressed to the contrary. The Interstate Commerce Commission, in the case of Memphis Cotton Oil Co. v. Illinois Cent. R. Co., 17 I. C. C. 313, while not repudiating the doctrine above mentioned, states it less clearly than some of the prior decisions of the Commission. It is a fundamental law that acts of an individual are presumptively not contrary to his interests, and, as said by Wallace, Judge, in Menacho v. Ward, 27 Fed. 529, 532: "The estimate placed by a party upon the value of his own services or property is always sufficient, against him, to establish the real value; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long-continued and extensive course of business dealings."

§ 67. Constitutionality of the Interstate Commerce Act.The constitutional grant of power to regulate commerce with foreign countries and between the states is plenary. The absence of this power was, as is well known, one of the principal reasons for dissatisfaction with the confederacy existing prior to the adoption of our Constitution. Just what powers could be constitutionally delegated or given to the Interstate Commerce Commission was the question to be determined by the framers of the Acts to Regulate Commerce. It has been held that to prescribe rates for the future is a legislative power,

but to determine whether or not a rate is reasonable is a judicial question.374 The legislature of a state may directly prescribe maximum rates, or such power may be delegated to a commission.375 Prior to the amendment known as the Hepburn Act, the Interstate Commerce Commission was a mere administrative body, with no power to fix rates. It could make findings and declare a particular rate unreasonable, which findings were prima facie true and were entitled to the "strength due to the judgment of a tribunal appointed by law and informed by experience. '376 The original Act was held to be valid by the Supreme Court.377 The court, in the course of the opinion, said:

"Interpreting the Interstate Commerce Act as applicable, and as intended to apply, only to matters involved in the regulation of commerce, and which Congress may rightfully subject to investigation by a commission established for the purpose of enforcing that act, we are unable to say that its provisions are not appropriate and plainly adapted to the protection of interstate commerce from burdens that are, or may be, directly or indirectly imposed upon it by means of unjust and unreasonable discriminations, charges, and preferences. Congress is not limited in its employment of means to those that are absolutely essential to the accomplishment of objects within the scope of the powers granted to it. It is a settled principle of constitutional law that 'the government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception.'-McCullough v. Maryland, 17 U. S. 4 Wheat. 316 (4 L. Ed. 579, 602). The test of

374 Chicago M. & St. P. R. Co. v. Minnesota, 134 U. S. 418, 33 L. Ed. 970, 10 Sup. Ct. 462, 702; Prentis v. Atlantic C. L. Co., 211 U. S. 210, 53 L. Ed. 150, 29 Sup. Ct. 67.

375 Munn v. Illinois, 94 U. S. 4 Otto 113, 24 L. Ed. 77; Stone v. Farmers L. & T. Co., 116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334, 1191; Georgia

R. & B. Co. v. Smith, 70 Ga. 694, 128
U. S. 174, 32 L. Ed. 377, 9 Sup. Ct.

47.

376 Illinois Cent. R. Co. v. Interstate Com. Com., 206 U. S. 441, 454, 51 L. Ed. 1128, 1134, 27 Sup. Ct. 700.

377 Interstate Com. Com. v. Brimson, 154 U. S. 447, 38 L. Ed. 1047, 14 Sup. Ct. 1125.

the 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. It cannot go beyond that inquiry without entrenching upon the domain of another department of government. That it may not do with safety to our institutions. -Union Pac. R. Co. v. United States ("Sinking Fund Cases'), 99 U. S. (9 Otto.) 700, 718, 25 L. Ed. 496, 501.”

In United States v. Delaware & Hudson Co.,378 it was contended that the so-called commodity clause of Section 1 of the present act was unconstitutional, one of the grounds for such contention being that the penalties prescribed by the amended Act brought it within the decision of the Supreme Court in Ex parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 Sup. Ct. 441. The clause, as construed by the Supreme Court, was held valid. On the question of the effect of the penalties, at page 417 of the opinion, the court said:

"With reference to the contention that the commodities clause is void because of the nature and character of the penalties which it imposes for violations of its provisions, within the ruling in Ex parte Young, 209 U. S. 123, we think it also suffices to say that even if the delay which the clause provided should elapse between its enactment and the going into effect of the same does not absolutely exclude the clause from the ruling in Ex parte Young, a question which we do not feel called upon to decide, nevertheless, the proposition is without merit, because (a) no penalties are sought to be recovered in these cases, and (b) the question of the constitutionality of the clause relating to penalties is wholly separate from the remainder of the clause, and, therefore, may be left to be determined, should an effort to enforce such penalties be made."

Subsequently, the right to enforce this clause as construed was upheld by the Supreme Court.379 The constitutionality of

378 United States v. Delaware & Hudson Co., 213 U. S. 366, 53 L. Ed. 836, 29 Sup. Ct. 527.

379 United States v. Lehigh V. R.

Co., 220 U. S. 257, 55 L. Ed. 458, 31
Sup. Ct. 387; Delaware L. & W. R.
Co. v. United States, 231 U. S. 363,
58 L. Ed. 269, 34 Sup. Ct. 65; United

the Act generally was interestingly and accurately stated by Judge Severens at circuit in an opinion wherein he shows the necessity for Congress to adopt some such scheme as the Act to Regulate Commerce, and in which opinion he says:380

"It would have been impossible for Congress to have foreseen the multitude of questions depending upon the special facts presented sometimes in one complication and sometimes in another, and declare a single rule applicable to each."

The Supreme Court has held that Section 20 of the Act to Regulate Commerce as amended by the Act of June 29, 1906,381 is valid and not unconstitutional as a delegation of legislative power, and that the requirement that carriers doing both interstate and intrastate business should render to the Interstate Commerce Commission accounts of all their business was not beyond the power of Congress.382 The provision subjecting corporations to criminal prosecution is valid.383

In Honolulu R. T. Co. v. Hawaii,384 the Supreme Court said: "The business conducted by the transit company is not purely private. It is of that class so affected by a public in

States v. Delaware L. & W. R. Co., 238 U. S. 516, 59 L. Ed. 1438, 35 Sup. Ct. 873. For a further history of litigation under this clause, see United States v. Lehigh Valley R. Co. (221 Fed. 399).

see

380 Louisville & N. R. Co. v. Interstate Com. Com., 184 Fed. 118, 122. For opinion of the Interstate Commerce Commission in this case New Orleans Board of Trade v. L. & N. R. Co., 17 I. C. C. 231. The Commerce Court set aside the order of the Commission, without, however, disagreeing with the Circuit Judges as to the validity of the Act to Regulate Commerce, Louisville & N. R. Co. v. Interstate Com. Com., 195 Fed. 541, Opinions Commerce Court Nos. 4, 325 and 375. For opinion reversing the Commerce Court: Interstate Com. Com. v. Louisville & N. R. Co., 227 U. S. 88, 57 L. Ed. 431, 33 Sup. Ct.

185. See also United States v. Great N. R. Co., 157 Fed. 288, 291.

381 Post, Sec. 550.

382 Interstate Com. Com. v. Goodrich Transit Co., 224 U. S. 194, 56 L. Ed. 729, 32 Sup. Ct. 436, reversing the Commerce Court in Goodrich Transit Co. v. Interstate Com. Com., Nos. 21, 22, 23, 24 Opinions of Commerce Court 95, 190 Fed. 943. See also Kansas City Sou. Ry. Co. v. United States, 231 U. S. 423, 58 L. Ed. 296, 34 Sup. Ct. 125, affirming same styled case Opinions Commerce Court No. 56, p. 641, 204 Fed. 641.

383 New York C. R. Co. v. United States, 212 U. S. 481, 492, 53 L. Ed. 613, 29 Sup. Ct. 304, cited in United States v. Adams Exp. Co., 229 U. S. 381, 390, 57 L. Ed. 1237, 33 Sup. Ct. 878.

384 Honolulu R. T. Co. v. Hawaii, 211 U. S. 282, 53 L. Ed. 186, 29 Sup. Ct. 55.