stay further proceedings in said action for fifteen days from the date of such transmission. Upon the receipt of such evidence the commission shall consider the same, and may alter, modify, amend or rescind its order relating to such rate or rates, fares, charges, classification, joint rate or rates, regulation, practice or service complained of in said action, and shall report its action thereon to said court within ten days from the receipt of such evidence. [Laws of 1905, ch. 362, section 16.]

$1298. Conclusion.

In general it may be said that the tendency in this legislation is to give the right of access to the courts only under strict limitations. There are various specific points which the legislators have had in mind during recent years; the tendency has been to circumscribe the various possibilities of the situation, to the end that the process shall be effectual; moreover, it is meant that the railroads shall gain nothing by delay, the provision that they shall file bond being common. But from a broader point of view what is most significant is the ideas held as to the proper relations between the commissioners and the courts. Current opinion as expressed in these statutes plainly is that the decision of the commission shall be given every presumption, the conception being that the decision rests with them in the first instance and that the attitude of the courts should be that there is a reviewing authority to prevent plain injustice.

PART II.

VALIDITY OF STATUTES.

CHAPTER XLII.

STATUTORY REGULATION OF RATES AND THE CONSTITUTION.

TOPIC A-NATURE OF THE POWER TO FIX RATES.

§ 1301. Regulation of rates by the State.

1302. Power to pass on reasonableness of rates.

1303. Power to fix rates.

1304. Power to fix rates not a judicial power.

1305. Power to fix rates not strictly legislative.

1306. Power to fix rates executive or administrative.

TOPIC B-METHOD OF EXERCISING THE POWER TO FIX RATES.

§ 1307. Fixing rates by statute.

1308. Legislation must be general.

1309. Fixing rates by subordinate body.

1310. Fixing rates by municipal or other local government.

1311. Fixing rates by inferior courts.

1312. Fixing rates by administrative commissions.

1313. Duty of the courts to pass on reasonableness of rates.

TOPIC C-CONSTITUTIONALITY OF RATES FIXED BY GOVERNMENT.

SUB-TOPIC 1-GENERAL CONSIDERATIONS.

§ 1314. Unconstitutional act absolutely void.

1315. Suit against State official to declare rate void.

1316. Function of the courts in declaring rate void.

1317. Rate constitutional as to one road, not as to another.

1318. Statute constitutional in part.

SUB-TOPIC 2-SEPARATION OF GOVERNMENTAL POWERS.

1319. Delegation of rate-making power.

1320. Delegation of power without appeal to the courts.

1321. Temporary interruption of appeal to the courts.

1322. Action of the rate-making body as evidence of reasonableness. 1323. Confusion of the powers of government.

SUB-TOPIC 3—OBLIGATION OF CONTRACTS.

§ 1324. Charter of corporation as contract against rate-fixing. 1325. No contract without express provision.

1326. Conferring ordinary powers does not create contract. 1327. Contracts made by municipal ordinance.

1328. Charter by Congress.

1329. Non-user and waiver of the privilege of exemption. 1330. Assignment of privilege of exemption.

SUB-TOPIC 4-PROTECTION OF PROPERTY.

§ 1331. Unreasonably low rates constitute a taking of property. 1332. The doctrine of the "Granger Cases."

1333. Early modification of the doctrine.

1334. The rule finally established.

1335. Exceptional rates forbidden.

TOPIC D CONSTITUTIONAL POWER OF CONGRESS OVER

INTERSTATE RATES.

§ 1336. Power to fix rates appears to be given to the Congress.

1337. Power to fix rates is inherent in legislative power to regulate carriage.

1338. Congress allowed to fix maximum rates.

1339. Power of Congress to fix rates for interstate commerce has been assumed.

TOPIC A-NATURE OF THE POWER TO FIX RATES.

§ 1301. Regulation of rates by the State.

The basis of the right of the State to regulate the rates of public-service companies is the principle first clearly apprehended and expressed by Lord Hale in his treatise De Portibus

Maris,1 that when property is affected with a public interest it ceases to be juris privati only. "Property," as Mr. Chief Justice Waite has said, "does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." And again, "Common carriers exercise a sort of public office, and have duties to perform in which the public are interested. Their business is therefore affected with a public interest.' "3

§ 1302. Power to pass on reasonableness of rates.

The simplest form in which the power to regulate rates can be exercised is that adopted by the common law, that is, the action of the courts, declaring a rate exacted by a carrier unreasonable upon suit of the party who has been called upon to pay it. Such power has been exercised by the courts of common law from the beginning of their history. It has always been recognized that if a carrier attempted to charge a shipper an unreasonable sum, the courts had jurisdiction to inquire into that matter, and to award to the shipper any amount exacted from him in excess of a reasonable rate. This power, which has aptly been called a visitorial power of the State, is only one example of the general power of the State to oversee the acts of those who are en

1 Cited in Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, B. & W. 71 (1876).

2 Munn v. Illinois, 94 U. S. 113, 126, 24 L. Ed. 77, B. & W. 71 (1876). 3 See, generally, Chapter II, supra.

4 Waite, C. J., in Railroad Commission Cases, 116 U. S. 307, 29 L. Ed. 636, 6 Sup. Ct. 334 (1886).

5 Brewer, J., in Reegan v. Farmers' L. & T. Co., 154 U. S. 362, 38 L. Ed. 1014, 14 Sup. Ct. 1047 (1893).

6 Williams, J., in Brymer v. Butler Water Co., 179 Pa. 231, 36 Atl. 249, 36 L. R. A. 260, B. & W. 330 (1897).

gaged in its public service, and to make sure that they really serve the public interests; and this power has been fully discussed in the earlier portions of this treatise.

§ 1303. Power to fix rates.

The power of the State over public service employments is not limited to its power to pass on the reasonableness of rates after they have been established; the power to initiate action, to fix rates in the first instance by way of regulating action, is fully recognized at common law and by the general practice of all common-law countries. In the middle ages, charges were fixed, if at all, by local bodies. Perhaps the earliest regulation of the rates of carriage by fixing the maximum rates specifically by statute occurred in England in 1692.8 Since that time the right to fix charges by the State seems never to have been questioned, though lawyers have sometimes differed as to the legality of some particular method of fixing the charges.

1304. Power to fix rates not a judicial power.

The earliest action of the State in dealing with rates was doubtless the action of the courts in passing upon the reasonableness of rates fixed by the carrier, and in Munn v. Illinois it was insisted that the power over rates was judicial power, and could not be exercised by the legislature. But the Court held otherwise. The line of argument was as follows: In commonlaw countries this power has been exercised from time immemorial by the legislature, which has fixed a maximum beyond which charges are unreasonable. Granting the power to regulate at all, the power to fix rates follows, since that is one means of regulation. The power of the common law to affect rates by providing that they must be reasonable is admitted; but this is

7 See, generally, Chapter XXVI, supra.

83 W. & M. c. 12, § 24.

994 U. S. 113, 133, 24 L. Ed. 77, B. & W. 71 (1876).