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§ 1404. Power to regulate is administrative.

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If it is necessary to find a place for the regulating power in one of the three departments into which government is commonly divided, it undoubtedly forms part of the executive department. We have seen that the power is neither judicial nor legislative; it does not involve the power to make laws, or to interpret and apply them, but to aid in carrying the laws into effect. The danger is that these distinctions will be forgotten and the attempt be made to create a body in which the powers of government are unjustifiably blended. This attempt was made in Kansas, where the legislature established a Court of Visitation, gave it the ordinary constitution and powers of a court, and conferred upon it the right to issue writs and injunctions, to summon witnesses, and to decide between parties, and finally granted to it the power to fix railroad rates. This legislation was held unconstitutional, as violating the constitutional separation of powers, since the body was to exercise both legislative and judicial functions. "Concisely stated," said District Judge Hook,2 "the Court of Visitation may make laws, sit judicially upon their own acts, and then enforce their enactments which have received their judicial sanction. Can this be done? Can there be vested in one body such a union of powers of the different departments or branches of government, to be exercised respecting the same subject-matter and in the same proceeding?"

§ 1405. Regulating body presumptively reasonable.

It is often provided that the rate as fixed by regulating commission shall be taken as reasonable until the contrary is shown, or that the action of the commission shall

1 In re Railroad Comrs., 15 Neb. 679, 50 N. W. 276 (1883); Nebraska Tel. Co. v. Cornell, 59 Neb. 737, 82 82 N. W. 1 (1900).

2 Western Union Tel. Co. V. Myatt, 98 Fed. 335 (1899); State v. Johnson, 61 Kan. 803, 60 Pac. 1060, 49 L. R. A. 662 (1900).

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be prima facie evidence of the reasonableness of the rate as found. This is not unconstitutional; the legislature has power over the weight of evidence, and this provision is merely an exercise of that power. It is sometimes provided that the action of the regulating commission should be "sufficient evidence of the reasonableness of the rates established by them." In one case it was claimed that this meant conclusive evidence and therefore that the action of the commission in establishing such a rate was unconstitutional. The court, however, held that this meant merely that the action of the commission constituted prima facie evidence of reasonableness, which in the absence of evidence to the contrary would be sufficient to justify a verdict to that effect.

§ 1406. Duty of the courts to decide reasonableness.

To whatever body the power of fixing rates may be confided, it is the function of the regular courts to pass upon the reasonableness of the rates thus established; and the courts cannot be deprived of this power. The question of reasonableness cannot be so conclusively determined by the legislature of the State, or by regulations adopted under its authority, that the matter may not become the subject of judicial inquiry. And legislation imposing outrageous penalties for failing to conform to its provisions while appealing to the courts to set it aside as unconstitutional is altogether bad."

1 Chicago, B. & Q. R. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247, 41 Am. St. Rep. 278, 24 L. R. A. 141 (1894); Burlington, C. R. & M. R. R. Co. v. Dey, 82 Ia. 312, 48 N. W. 98, 31 Am. St. Rep. 477, 12 L. R. A. 436 (1891).

2 Richmond & D. R. R. Co. v. Trammel, 53 Fed. 196 (1892). See

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Topic B. Method of Exercising the Power to Regulate

§ 1407. Fixing rules by legislation.

In the United States, where the division of powers is strictly enforced, it is well settled that the legislature 1 has power to limit the amount of charges by railroad companies for the transportation of persons and property within its own jurisdiction, unless restrained by some contract or other in the charter of the railroad. But it is equally well settled that the action of the legislature in regulating the conduct of a public service may be attacked in the courts as outrageous in its application to the complainant. The general doctrine that a statute which is contrary to the Constitution is void is too well understood to be expatiated upon. If the statute which fixes or gives power to fix the rate is void, the rate does not exist in effect, and will be disregarded by the court. It is possible, however, to provide by statute that the rate shall be binding between the parties until declared void by the courts.2

§ 1408. Delegation of regulating power.

It has already been seen that the regulating power may be delegated to a subordinate body; and this is not unconstitutional as a delegation of legislative power. The

1 United States.-Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77 (1876), Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339, 36 L. ed. 176, 12 Sup. Ct. 400 (1892); Budd v. New York, 143 U. S. 517, 36 L. ed. 247, 12 Sup. Ct. 468 (1892); Chesapeake & P. Tel. Co. v. Manning, 186 U. S. 238, 46 L. ed. 1144, 22 Sup. Ct. 881 (1902); Atlantic & P. Co. v. United States, 76 Fed. 186 (1896); Ball v. Rutland R. R. Co., 93 Fed. 513 (1889).

Arkansas.-Missouri Pac. Ry. v. Smith, 60 Ark. 221, 29 S. W. 752 (1895).

Indiana.-Hockett v. State, 105 Ind. 250, 5 N. E. 178 (1885).

Michigan.-Pingree v. Michigan Cent. R. R. Co., 118 Mich. 314, 76 N. W. 635 (1898).

2 See especially Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 38 L. ed. 1014, 14 Sup. Ct. 1047 (1894).

legislative act of requiring the rates to be reasonable is either the act of the common law or is part of the act by which the delegation of authority is conferred. The functions of such bodies in determining and fixing reasonable rates are administrative rather than legislative. The authority conferred on them relates merely to the administration in practice of the general rules laid down by the common law and by the legislature. So in the Railroad Commission Cases 1 the legality of the action of the Mississippi Legislature in creating a railroad commission with power to fix rates was justified. The rate so fixed would be enforced in the courts, unless the courts should find it unjust. The delegation of the rate fixing power to a commission in this way was held to be constitutional.2

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1409. Functions of administrative commissions.

It is much more convenient for the legislature to confer on a subordinate administrative body the power to regulate than to do so itself. This has been done in England by placing the power in the Board of Trade, one of the executive or rather administrative departments of the government. In this country, the power has, in the last quarter century, very generally been referred to an administrative commission. The reason for delegating the power of fixing rates in detail to a commission has never

1116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. 334 (1886). See also Chicago & N. W. Ry Co. v. Dey, 35 Fed. 866 (1888).

2 See Siler v. Louisville & N. R. R. Co., 213 U. S. 175, 53 L. ed. 753, 29 Sup. Ct. 451 (1909); and Gulf, C. & S. F. Ry. Co. v. State (Tex. Civ. App.), 120 S. W. 1028 (1909).

In a State where the division of powers is not strictly insisted upon

in the constitution, the power to fix rates may be conferred upon an inferior court, as in Kentucky upon the county court, with appeal to the superior courts in regular series. Troutman v. Smith, 105 Ky. 231, 48 S. W. 1084 (1899); or as in Pennsylvania where the county court may fix water rates. Brymer v. Butler Water Co., 179 Pa. St. 231, 36 Atl. 249, 36 L. R. A. 260 (1897).

been better expressed than by Mr. Justice Brewer: 1 "The reasonableness of a rate changes with the changed condition of circumstances. That which would be fair and reasonable to-day, six months or a year hence may be either too high or too low. The legislature convenes only at stated periods; in this State once in two years. Justice will be more likely done if this power of fixing rates is vested in a body of continual session than if left with one meeting only at stated and long intervals. Such a power can change rates at any time, and thus meet the changing conditions of circumstances. While, of course, the argument from inconvenience cannot be pushed too far, yet it is certainly a matter of inquiry whether in the increasing complexity of our civilization and our social and business relations, the power of the legislature to give increased extent to administrative functions must not be recognized." 2

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Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866, 875 (1888).

2 United States.-Railroad Commission Cases, 116 U. S. 307, 29 L. ed. 636, 6 Sup. Ct. 334 (1886); Dinsmore v. So. Exp. Co., 183 U. S. 115, 46 L. ed. 111, 22 Sup. Ct. 46 (1901); Tilley v. Savannah, F. & M. R. R. Co., 5 Fed. 641, 4 Woods, 427 (1881); Chicago & N. W. Ry. Co. v. Dey, 35 Fed. 866 (1888); Southern Pacific R. R. Co. v. Railroad Commissioners, 76 Fed. 236 (1896); Chicago, M. & S. P. Ry. Co. v. Tompkins, 90 Fed. 363 (1898); Metropolitan Trust Co. v. Houston & T. C. R. R. Co., 90 Fed. 683 (1898); Haverhill G. L. Co. v. Barker, 109 Fed. 694 (1901); Wallace v. Arkansas Cent. R. R. Co., 118 Fed. 422, 55 C. C. A. 192 (1902).

Florida.-McWhorter v. Pensacola & A. R. R. Co., 24 Fla. 417, 5

So. 129, 12 Am. St. Rep. 220, 2
L. R. A. 504 (1888); Storrs v. Pensa-
cola & A. R. R. Co., 29 Fla. 617, 11
So. 226 (1892).

Georgia.-Georgia R. R. & B. Co. v. Smith, 70 Ga. 694 (1883).

Illinois. Chicago, B. & Q. R. R. Co. v. Jones, 149 Ill. 361, 37 N. E. 247, 41 Am. St. Rep. 278, 24 L. R. A. 141 (1894).

Iowa.-Hooper v. Chicago, M. & St. P. Ry. Co., 91 Ia. 639, 60 N. W. 487 (1894).

Minnesota.-State v. Chicago, M. & S. P. R. R. Co., 38 Minn. 281, 37 N. W. 782 (1888), reversed on another point, Chicago, M. & S. P. R. R. Co. v. Minnesota, 134 U. S. 418, 33 L. ed. 970, 10 Sup. Ct. 462.

Nebraska.-State v. Fremont & E. M. V. R. R. Co., 22 Neb. 313, 23 Neb. 117 (1887).

Texas.-Railroad Commission v.

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