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a new judgment or decree—if the facts warrant it. These, and many other practical difficulties,
, stand in the way of an enforcement of the law through the aid of the Circuit Court.
Fourth: It only remains to suggest the various constitutional propositions which arise from a consideration of the language and results and consequences of the Inter-State Commerce Act.
(a) The first and main question is: Has Congress the right to pass this law? Do the fixing of the rates, fares, and charges which common carriers may receive for the transportation of passengers or property, and the appointment of this Commission, with the powers conferred upon it, as contained in the Act, constitute a regulation of commerce? Does regulation mean control of commerce? Does it mean the absolute and unlimited power on the part of Congress to do any act with or concerning the commerce of the country that to it seems proper ? Is there no limit placed upon the power of Congress in this respect ? Is Congress the sole judge as to what facts constitute a regulation of commerce? Has Congress power to regulate any private commercial business conducted between two or
more States, in the manner in which it has attempted to legislate about common carriers ? And does the fact that such carriers are quasi public officials create any distinction as against such carriers ?
If it can be demonstrated to the Federal courts that the effect of the legislation in question is hurtful to the people of the country; that it is aimed at the subversion or destruction of commerce, can the Act be declared unconstitutional ?
These are the interesting questions which surround this branch of the subject, and must be answered in order to sustain this piece of legislation. On the other hand, we have the utterances of the Supreme Court of the United States in the Wabash Railway Company case, and in the decisions there alluded to by Mr. Justice Miller, in which it is generally stated and held that Congress possesses the power to legislate upon the subject of inter-State commerce. There is nothing, however, in that opinion which upholds the right of Congress to delegate its power to a Commission, and this, as we have said in the beginning of this treatise, is an entirely new question for the courts to determine. (118 U. S., 557.)
(6) Assuming, however, that Congress may itself exercise powers similar to those created by the Inter-State Commerce Act, another grave question is, whether that body can delegate its powers to a tribunal such as is created by this Act. Has Congress the right to divest itself of the power which the Constitution has placed in its hands, and to entrust the regulation of commerce to a Commission ? It will be seen that Congress, by this Act, does not undertake specifically to fix the rates or charges of common carriers, or to regulate the method or system by which they shall conduct their busi
All of these things are practically left in the hands of the Commission, and it lies with that body, exclusively, to say what shall and what shall not constitute an infraction of the law.
Specific rules for the government of the business and conduct of carriers are not laid down by the Act, but it lies with the Commission to declare what the law shall be in any given case. The
of the Commission is arbitrary, unlimited, and unchecked ; and while it cannot be assumed that it will be used detrimentally to the interests of the public, or of the common carriers, it is doubtful whether the
people of the United States, in adopting the Constitution, ever intended that such an unbounded supervision over the commercial interests of the country should ever be placed in the hands of a tribunal such as the Inter-State Commerce Commission.
An application of these suggestions to the various provisions of this Act, will be sufficient to show that Congress has practically delegated its whole power in the premises to the Commission.
While Congress has the right, under the Constitution of the United States, to “constitute tribunals inferior to the Supreme Court,” the jurisdiction of those tribunals must be confined to such subjects and matters of jurisdiction as are specified in the Constitution. The people of the United States have defined the judicial power of the government, and under Section 2 of Article III. of the Constitution it is declared that :
1. The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, or other public ministers and consuls; to
all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States ; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign states, citizens, or subjects.
“ 2. In all cases affecting ambassadors, or other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before nentioned, the Supreme Court shall have appeliate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.”
These suggestions are thrown out upon a possible contention that the Inter-State Commerce Commission is a judicial body, and within the authority of Congress to create under its power to establish inferior courts.
(c) The next proposition is whether some of the provisions of the Inter-State Commerce Act do not conflict with the Seventh Amendment to the Constitution of the United States, which provides that: “In suits at common law,