elsewhere in any court. If a shipper is ready to prove that the rate charged him was outrageously high he can no longer, as formerly, litigate the matter in the courts, and show that the established rate is unreasonable. He must go to the Commission to get the scheduled rate set aside, and reparation awarded him for the extortion. Indeed, the theory is that the scheduled rate is the only legal rate until thus altered; and this has had the startling result of compelling shippers to pay the scheduled rate, even when a lower rate was quoted them. Whatever is duly confided to the jurisdiction of the Commission is thus automatically withdrawn from the cognizance of the courts as an original question.

§ 95. The Proctor Gamble case.

It has only recently been pointed out that there is no appeal when the Commission dismisses by an adverse decision a shipper who is complaining that rates charged him are more than he should be obliged to pay. To be sure, where a carrier is subjected to regulation to the extent of being obliged to serve at less than a fair return, it is being subjected to unconstitutional deprivations. But unlike the carrier who must serve all at the rate established by law, the shipper is not obliged to ship unless he wishes, and his property is not therefore taken from him by compulsory process in the view of the law. This doctrine that, whereas a carrier has constitutional rights to attack the decision of a commission, the shipper only has such statutory rights as may be provided, is shown in the recent case of Proctor Gamble & Co. v. United States. 17 That case held that, as the system of procedure provided by the Interstate Commerce Act contained no provision for appeal by a party whose complaint had been dismissed by the Interstate Commerce Commission, he had no right whatever, as he had no basis for recourse to the courts upon the ground that he could not earn a livelihood ship17 225 U. S. 282, 56 L. ed. 1478, 32 Sup. Ct. 761.

ping at the rates upon the existing basis. This decision is quite consistent with the theory of administration underlying our system at present. If the body duly charged with seeing that only such rates are charged as are reasonable decides that the interests of the public are protected, why should anybody have any standing to go to the courts about it any more than for any other difference of opinion as to matters of government?

§ 96. The Williamette Valley case.

The significance of the limitations in the Act as amended in 1906 was probably not brought to the attention of the country until the case of the Southern Pacific v. Interstate Commerce Commission. 18 The Commission, as it appeared in that case, had come to the rescue of the lumber industry of the Williamette valley, which was threatened by advances in rates which had been put into effect shortly before. At all events, it had after due proceedings fixed lower rates for the future in place of the new rates, apparently upon the ground that it would be a wise policy to keep open the markets which had thus been closed. The earlier rates undoubtedly had thus created markets upon which the shippers had come to rely; but, as the Supreme Court pointed out, all these arguments ignored the provisions of the Act. In the absence of a finding that the advanced rates which carriers had put in effect were unreasonable, the Commission had no jurisdiction to go further; and this was not made out by showing that public interests would be promoted by lower rates. Such arguments might sometimes avail carriers in explaining differentials; but they could not justify the Commissions in ordering changes.

§ 97. The Lemon Rates case.

Thus stands at present the jurisdiction of the Interstate Commerce Commission over rates. Under the Act the

18 219 U. S. 433, 56 L. ed. 308, 31 Sup. Ct. 288.

carrier retains the primary right to make rates; but if, after hearing, they are shown to be unreasonable, the Commission may set them aside and fix for the future that rate which it regards as reasonable. Therefore, unless there is evidence before the Commission to show that the rates attacked were unreasonable, there is no jurisdiction to proceed further. What is a reasonable rate is a matter as to which our modern law has some ideas, although they are by no means as clear as they soon will be with the development now going on so rapidly in this branch of the law. We are at a point where progress can at least be made in this matter, with the famous case of Interstate Commerce Commission v. Atchison, Topeka & Santa Fe Railway at last brought to a termination by the late affirmation of the Supreme Court. 19 This matter of the Lemon rates from the Pacific coast has been going back and forth between the Commission and the courts for some time. First, the Commission reduced the rates for reasons in last analysis more economic than legal; and this order the Commerce Court set aside, as the existing rate had not been sufficiently shown to be unreasonable in the sense of the law. Then the Commission took further testimony, making at least a showing sufficient to justify it in declaring the existing rates unreasonable, and substituted new rates; and the federal court then held in effect that whatever motive might be behind this action there was reason enough apparent in the record for the course it had pursued. And indeed this final action is good administration, quite in accordance with the distinction between the motives for taking action at a particular time and the basis upon which that action is taken.

§ 98. The Baltimore & Ohio case.

Moreover, a carrier does not have the hearing which the Act makes prerequisite unless he knows what evidence is offered or considered, and is given opportunity to ex19 231 U. S. 736, 34 Sup. Ct. 316.

plain and refute it. This is not merely a matter of proper construction of the Act, it is a right which comes from the Constitution itself. This argument was brought out fully in the Supreme Court recently where the contention was made that the findings and orders of the Commission under section 15 might be originally supported and subsequently defended by information which the Commission had gathered under section 12 for general purposes. But the Supreme Court would have none of this where the rights of parties were involved. When the point was raised apparently for the first time in United States v. Baltimore & Ohio Southwestern Railroad, 20 there was no question about the attitude of the Supreme Court. The Supreme Court is now plainly insistent that all parties before the Commission in any proceedings directed against them must be fully apprised of the evidence submitted or to be considered and must be given opportunity to cross-examine witnesses and to inspect documents and to offer evidence in explanation and rebuttal. In no other way consistently with what we consider the course of the administration of justice can a party maintain its rights or make out its defense. Moreover, as the Supreme Court has keenly appreciated, in no other way can the courts inquire as to the existence of evidence upon which the finding might be based; for otherwise, even though it appeared that the order was without evidence, the manifest deficiency could always be explained on the theory that the Commission had before it extraneous, unknown but presumptively sufficient, information to support the finding.

§ 99. The Minnesota Rate case.

When we come to deal with the constitutional complications due to our federal government, too wide a field is opened for anything but reference here. But such a decision as Simpson v. Shepard 21 goes far toward making

20226 U. S. 14, 57 L. ed. 104, 33 Sup. Ct. 5.

21 230 U. S. 352, 57 L. ed. 1511, 33 Sup. Ct. 729.

it possible to get at the principles involved. In this Minnesota Rate case it was laid down that for normal cases the rule was as simple as that there should be federal regulation for interstate rates and State regulation for intrastate rates. The rule may be simple, but its application is accompanied by so many computations based upon assumptions beyond the possibilities of proof as to make it all but impracticable. However, as the Supreme Court points out, whenever Congress judges that the proper regulation of interstate commerce requires that a federal Commission shall have power also over the intrastate rates, by such express legislation the interstate commission may be given exclusive jurisdiction over the rate situation. Until that time comes, there is no implication from the establishing of the jurisdiction of the Commission over interstate rates sufficient to take from the States the power to fix intrastate rates by such means as they may choose to employ.

§ 100. The Shreveport case.

In view of the strong dictum in the case just discussed it is not at all surprising that the federal courts have still more recently held that when rates established by a State commission directly interfered with the rate system established for the whole region, it may come in conflict with the federal jurisdiction as it stands to-day without further legislation by Congress. In the recent case known as the Shreveport Rate Case, 22 the Supreme Court of the United States held that the Commission has power in effect to control rates maintained by the carrier in strictly intrastate transportation by insisting that such rates shall keep in line with the interstate structure. It was seen that to deprive Congress of this power would be to permit a State to place a burden upon interstate commerce, the very harm sought to be remedied by the commerce clause. The decision is significant in that the

22 Houston, E. & W. T. Ry. v. United States, 234 U. S. 342, 34 Sup. Ct. 833.