matters relating to or connected with the receiving, handling, transporting, storing, and delivery of property subject to the provisions of this Act which may be necessary or proper to secure the safe and prompt receipt, handling, transportation, and delivery of property subject to the provisions of this Act upon just and reasonable terms, and every such unjust and unreasonable classification, regulation, and practise with reference to commerce between the States and with foreign countries is prohibited and declared to be unlawful. Charges must be just and reasonable.-This section of the Act to regulate commerce was adopted as a portion of the law of February 4, 1887, and was not altered until the Act of June 18, 1910, when telegraph, telephone and cable companies were also included within the provisions of the Act and placed under the jurisdiction of the Interstate Commerce Commission.57 It is to be noted that in this section at least no power is conferred by Congress upon the Interstate Commerce Commission to fix rates, either maximum, minimum or absolute. The fixing of rates is left in the hands of the carriers subject only to the inhibitions that they must be both just and reasonable. And this was the common law obligation applying to common carriers. The provision here under discussion was merely a statutory affirmation of this common law rule which demanded that roads should carry for all persons, in the order in which they applied, and that their charges be reasonable leaving common carriers free to make their contracts, classify their traffic and adjust and apportion their rates to harmonize with the demands of commerce under the same general principles recognized in all lines of trade.58 57 As originally enacted this section read as follows:-"All charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just; and every unjust and unreasonable charge for such service is prohibited and declared to be unlawful." 58 Cincinnati, New Orleans and Texas Pacific Railway Co. v. Interstate Commerce Commission, (known as the Social Circle Case), 162 U. S. 184, 40 L. Ed. 935, 16 Sup. Ct. 700. Here the court said:-"Whether Congress intended to confer upon the Interstate Commerce Commission the power to fix rates, was mooted in the courts below and is discussed in the briefs of the counsel. We do not find any provision of the Act that expressly, This principle had prevailed in England and legislation declaratory thereof had already been enacted in many of the states of the Union which during the so-called Granger movement had undertaken the task of curbing the power and activities of the railroads. A fundamental distinction is to be noted in the character of the power to prescribe rates and the power to inquire and determine whether the rates which have been adopted and or by necessary implication, confers such a power. It is argued on behalf of the Commission that the power to pass upon the reasonableness of existing rates implies a right to prescribe rates. This is not necessarily so. The reasonableness of the rate, in a given case, depends on the facts, and the function of the Commission is to consider these facts and give them their proper weight. 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 to be reasonable. "We prefer to adopt the view expressed by the late Justice Jackson, when circuit judge, in the case of Interstate Commerce Commission v. Baltimore and Ohio Railroad Company, 43 Fed. 37, and whose judgment was affirmed by this court, 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844: -Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the Act to regulate commerce leaves common carriers as they were at the common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, and generally to manage their important interests upon the same principles which are regarded as sound, and adopted in other trades and pursuits.'" Interstate Commerce Commission v. Baltimore and Ohio Railroad, 145 U. S. 263, 36 L. Ed. 699, 12 Sup. Ct. 844. In discussing this phase of the question the court here declared:-"Prior to the enactment of the Act of February 4, 1887, commonly known as the Interstate Commerce Act, railway traffic in this country was regulated by the principles of the common law applicable to common carriers, which demanded little more than that they should carry for all persons who applied, in the order in which the goods were delivered at the particular station, and that their charges for transportation should be reasonable. It was even doubted whether they were bound to make the same charge to all persons for the same service; though the weight of authority in this country was in favor of an equality of charge to all persons for similar services. In several of the states Acts had been passed with the design of securing the public against unreasonable and unjust discriminations. *** The principal objects of the Interstate Commerce Act were to secure just and reasonable charges for transportation; to prohibit unjust discriminations in the rendition of like services under similar circumstances and conditions." charged are reasonable. The first is a legislative act while the second is a judicial act.59 And in this section of the Act at least no power is given to the Commission to positively establish a rate. Manifestly a rate may be unjust and unreasonable from being too low as well as from being too high. In the first case the injustice is to the carrier and in the second instance the injustice is to the shipper. The reasonableness of a rate must of necessity depend upon the facts in each case, and the Interstate Commerce Commission is endowed with the function only of ascertaining and considering the facts and giving them proper weight. But this function is negative in its character. It is confined to ascertaining whether the given rate is unreasonable and of enjoining the carrier from enforcing it if it is so found. The Commission cannot assert a power by indirection which it is not given directly. It could not by determining what in reference to the past was a reasonable and just rate,—whether as maximum, minimum or absolute-obtain a peremptory order in the shape of a writ of mandamus that in the future the railroads should adhere to the rate thus determined to have been reasonable and just in the past.60 But this discussion, while germane to the sec 59 Interstate Commerce Commission v. Cincinnati, New Orleans and Texas Pacific Railway Co., (known as the Maximum Rate Case), 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896. The court, discussing this question at length, said: "The question debated is whether it (Congress) vested in the Commission the power and the duty to fix rates; and the fact that this is a debatable question, and has been most strenuously and earnestly debated, is very persuasive that it did not. The grant of such a power is never to be implied. The power itself is so vast and comprehensive, so largely affecting the rights of carrier and shipper, as well as indirectly all commercial transactions, the language by which the power is given had been so often used and was so familiar to the legislative mind and is capable of such definite and exact statement, that no just rule of construction would tolerate a grant of such power by mere implication. 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. 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." 60 Interstate Commerce Commission v. Cincinnati, New Orleans and Texas Pacific Railway Co., 167 U. S. 479, 42 L. Ed. 243, 17 Sup. Ct. 896. Here the court said:-"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 tion at issue is largely academic and historical because of subsequent amendments in the Acts of June 29, 1906, and June 18, 1910, which enlarged the powers of the Interstate Commerce Commission in the determination and enforcement of rates. The question of a recovery of any payment made by shippers on rates charged by the railroads which are determined to be unjust and unreasonable by the Commission will be treated in the discussion of a later section (section 9) of the Act. Decision as to Reasonableness of Rates.-Under the common law when a carrier declined to receive goods offered for transportation or to deliver goods shipped except upon the payment of an unreasonable and excessive sum, the shipper had a right of action in damages. It became settled that under such conditions an action could be maintained to recover the overcharge. Manifestly it was difficult, in the very nature of the question, to demonstrate what constituted an unreasonable rate since it could be ascertained only by first proving what would be a reasonable charge for the service rendered-the first being of necessity dependent upon the second. Moreover, being a question for judicial decision, the standard of reasonableness was bound to be variable. The courts being numerous and juries of different minds a rate held reasonable in one court or by one jury might be deemed unreasonable in a different jurisdiction or by a different jury in the same jurisdiction. And similarly the degree of 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." See also Interstate Commerce Commission v. Alabama Midland Railway Co., 168 U. S. 144, 42 L. Ed. 414, 18 Sup. Ct. 45, where the court said: "Discussion of these assignments is rendered unnecessary by recent decisions of this court, wherein it has been held, after elaborate argument, that Congress has not conferred upon the Interstate Commerce Commission the legislative power of prescribing rates, either maximum or minimum, or absolute; and that, as it did not intend to give the express power to the Commission, it did not intend to secure the same result indirectly by empowering that tribunal, after having determined what, in reference to the past, were reasonable and just rates 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" X unreasonableness was equally bound to vary. This difficulty was 61 Texas and Pacific Railway v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. 350. Here the court in discussing this phase of the question said:—“If it be that the standard of rates fixed in the mode provided by the statute could be treated on the complaint of a shipper by a court and jury as unreasonable, without reference to prior action by the Commission, finding the established rate to be unreasonable and ordering the carrier to desist in the future from violating the Act, it would come to pass that a shipper might obtain relief upon the basis that the established rate was unreasonable, in the opinion of a court and jury, and thus such shipper would receive a preference or discrimination not enjoyed by those against whom the schedule of rates was continued to be enforced. This can only be met by the suggestion that the judgment of a court, when based upon a complaint made by a shipper without previous action by the Commission would give rise to a change of the schedule rate and thus cause the new rate resulting from the action of the court to be applicable in future as to all. This suggestion, however, is manifestly without merit, and only serves to illustrate the absolute destruction of the Act and the remedial provisions which it created which would arise from a recognition of the right asserted. For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an |