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lower court. The case was then reargued and the decision of the lower court was reversed. The delegation of the power in question was sustained as a "power to fill in the details."

Interstate Commerce Commission v. Goodrich Transit Company (1912, 224 U. S. 194):

Section 20 of the Interstate Commerce Act authorizes the Interstate Commerce Commission to prescribe the manner in which the accounts of carriers subject to the Act shall be kept, the forms of all accounts, records, and memoranda, and the period of time within which all carriers must have uniform systems of accounts. The statute was held not to be an unlawful delegation of legislative power to the commission. The Goodrich case was affirmed in Kansas City Railway v. U. S. (1913, 231 U. S. 423).

St. Louis, Iron Mountain and Southern Railway v. Taylor (1908, 210 U. S. 281):

Section 5 of the Safety Appliance Act authorized the American Railway Association to designate to the Interstate Commerce Commission the standard height of draw bars for freight cars, and to fix a maximum variation from such standard height. It was made the duty of the commission to give notice of the standards so fixed. A penalty is imposed for using cars which do not comply with the standard. The association certified a standard, and the Interstate Commerce Commission promulgated it. This action was brought to recover damages for the death of a brakeman, and the right to recover was based solely upon the failure of the defendant to equip the cars as required by the Act. It was contended that the statute was an unconstitutional delegation of legislative power. The Act was held constitutional, and Mr. Justice Moody dismissed the contention as follows (page 287):

Nothing need be said upon this question except that it was settled adversely to the contention of the plaintiff in error in Buttfield v. Stranahan, 192 U. S. 470, a case which in principle is completely in point. And see Union Bridge Co. v. U. S., 204 U. S. 364, where the cases were reviewed.

Although the making of a rate is considered a legislative act (see, Prentice v. Atlantic Coastline, 1908, 211 U. S. 210), the constitutionality of the delegation to the Interstate Commerce Commission of power "to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such case as the maximum to be charged" (34 Stat. 589), is no longer open to doubt (see Hughes, J., in the Shreveport Rate Case, 1914, 234 U. S. 342, 355).

In The First National Bank of Bay City v. Fellows (1917, 244 U. S. 416) the delegation of power to the Federal Reserve Board to authorize national banks to act as trustees [section 11 (k)] was held not an unconstitutional delegation of legislative power.

The power delegated to the President under the Selective Draft Act was held constitutional in the Selective Draft Law Cases (1918, 245 U. S. 366).

In Red "C" Oil Manufacturing Co. v. Board of Agriculture (1912, 222 U. S. 380); the power delegated by the Legislature of the State of North Carolina to its board of agriculture "to determine the safety and value for illuminating purposes" of all kerosene and other illuminating oils was upheld.

The power given to the Secretary of War to establish harbor lines was held a valid delegation of power in Philadelphia Co. v. Stinson (1917, 223 U. S. 605).

It has been contended that section 3 of the Tariff Act of 1890 (see discussion under Part VI, infra, page 95) actually involved a delegation of legislative power, because the fact which the President was to determine was so indefinite, and because the suspension was to continue "for such time as he shall deem just " (see WhitneyAnother Philippine Constitutional Question-Delegation of Legislative Power to the President, 1 Col. Law Rev. 33, January, 1901).

The fact that the Supreme Court has dismissed every contention that a statute attempted to delegate legislative power and for that reason was unconstitutional is of no slight significance. In many cases the contention was dismissed by the familiar phrase of Chief Justice White "to state the proposition is to answer it" (see Brushaber v. Union Pacific Railway Co., 1916, 240 U. S. 1, 26). An examination of the numerous cases would even seem to substantiate a theory that it is for Congress to decide what powers it chooses to delegate, and that the court will not interfere so long as a standard or rule is established by which the court can control the exercise of the delegated power, whenever a justiciable case is brought before it.

It may be contended that the case of Ploner v. Standard Oil Co. (C. C. A., 1922, 284 Fed. 34) is an authority opposing the validity of the delegation of this power. That case held invalid a Chicago ordinance authorizing the oil inspector to "charge not to exceed six cents for inspecting * * * each package, cask, or barrel * * * "" However, in this case the money went to the inspector, and no rule was prescribed for determining the amount of the charge.

However, St. Louis Consolidated Coal Co. v. Illinois (1902, 185 U. S. 203) indicates the distinction between the delegation in the Ploner case and the delegation in the bill. An Illinois statute provided a maximum fee of $10 and a minimum fee of $6 to be fixed by the mine inspector on each visit of inspection, to "depend upon length of time consumed, and the expense necessarily incurred * * "" The funds were covered into the State treasury. The Supreme Court held the statute valid.

Applying the above principles to the section under discussion, the "standard" is found in subdivision (b) of section 202, which provides that the total amount of the equalization fee to be collected must be equal to the total amount of the expenses and losses of the corporation attributable to its operations in respect of the commodity. Obviously Congress could not determine in advance the exact amount, and must necessarily delegate the determination. Furthermore, the person who pays the fee is adequately protected, for the corporation is directed to distribute ratably the balance remaining after the payment of the losses and expenses (subdivision (c) of section 204).

D. LEGISLATIVE PRECEDENTS.

No court decisions involving the delegation by Congress of power to prescribe the amount of a fee to be charged have been found. However, there are many legislative precedents.

(1) Section 5 of the Panama Canal Act, approved August 24, 1912 (c. 390, 37 Stat. 560, 562), as amended by the act approved June 15,

1914 (c. 106, 38 Stat. 385, 386): The President is authorized to fix the rate of tolls to be charged for the use of the Panama Canal, with the maximum limit of $1.25, and the minimum limit of 75 cents, per net registered ton.

(2) The China Trade Act, approved September 19, 1922 (c. 346, 42 Stat. 849, 854): Subdivision (b) of section 17 authorizes the Secretary of Commerce to prescribe and fix the amount of fees for services rendered in the administration of the act.

(3) The Agricultural Credits Act of 1923, approved March 4, 1923 (c. 252, 42 Stat. 1454):

Subdivision (d) of section 202 of the Federal Farm Loan Act (added by the Agricultural Credits Act) authorizes the Federal Farm Loan Board to fix rates of interest in the case of rediscount of paper, and makes rates of interest or discount charged by the Federal intermediate credit banks subject to the approval of the Federal Farm Loan Board.

Subdivision (a) of section 206 provides that the Federal Farm Loan Board "shall equitably apportion the joint expenses incurred in behalf of the Federal land banks, the joint-stock land banks, and the Federal intermediate credit banks, and shall assess against each Federal intermediate credit bank its proportionate share of the expenses of any additional personnel

* * * ""

Subdivision (b) of section 206 provides for the distribution of the net earnings of Federal intermediate credit banks, requiring the payment of one-half to the United States and one-half into a surplus fund up to an amount equal to the subscribed capital stock, and thereafter 10 per cent into the surplus and the remainder to the United States. The net earnings thus derived are to be used to supplement the gold reserve or reduce the outstanding bond indebtedness. Subdivision (d) of section 209 requires the assessment by the Comptroller of the Currency of expenses of all examinations.

Subdivision (i) of section 209 provides that the Comptroller of the Currency shall allot to the Department of Agriculture the estimated expenses of the department on the administration of the title, and may ratably assess the same against national agricultural credit corporations.

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(4) The Federal Reserve Act as amended:

Subdivision (b) of section 11 authorizes the Federal Reserve Board to fix the rate of interest to be charged by Federal reserve banks upon the rediscount of discounted paper of other reserve banks.

Subdivision (c) of section 11 authorizes the Federal Reserve Board to establish a graduated tax, within the maximum prescribed, whenever the gold reserve held against Federal reserve notes falls below a specified percentage.

(5) The Water Power Act, approved June 10, 1920 (c. 285, 41 Stat. 1063, 1069): The Water Power Commission is authorized to fix the reasonable annual charges to be paid by the licensees.

(6) The United States cotton standards act, approved March 4, 1923 (c. 288, 42 Stat. 1517, 1518):

SEC. 5. That the Secretary of Agriculture may cause to be collected such charges as he may find to be reasonable for licenses issued to classifiers of cotton under section 3 and for determinations made under section 4 of this act, and the amount so collected shall be used by the Secretary of Agriculture in paying expenses of the Department of Agriculture connected therewith.

(7) The Agricultural Appropriation Act, approved October 1, 1918 (c. 178, 40 Stat. 973, 1002–1003):

The Secretary of Agriculture is authorized to require the payment, in the case of certificates of condition of perishable farm products "such fees as will be reasonable and as nearly as may be to cover the cost for the service rendered."

Similar provisions will be found in 41 Stat. 265; 41 Stat. 724; 42 Stat. 532; 42 Stat. 1313.

(8) The United States Grain Standards Act, approved August 11, 1916 (c. 313, 39 Stat. 446, 484): Section 6 authorizes the Secretary of Agriculture to fix reasonable fees in the case of an appeal.

(9) Sundry Civil Appropriation Act, approved June 4, 1897 (c. 2, 30 Stat. 11, 35): The Secretary of the Interior is authorized to make rules and regulations to regulate the occupancy and use of forest reservations (the authority has been transferred to the Secretary of Agriculture-33 Stat. 628). Under this power the Secretary prescribes fees. See United States v. Grimaud (1911, 220 U. S. 506).

(10) The Act entitled "An Act for the appointment of a sealer and assistant sealer of weights and measures in the District of Columbia, and for other purposes," approved March 2, 1895 (c. 179, 28 Stat. 811): Under section 4 the "Commissioners of the District of Columbia are hereby empowered and directed to prescribe a schedule of fees to be charged by the sealer of weights and measures for his services * *

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(11) The navigation laws of the United States: Based on section 3 of the Act of August 5, 1882 (c. 398, 22 Stat. 300), and section 4 of the Act of March 2, 1895 (c. 173, 28 Stat. 741), the Secretary of Commerce is authorized to establish the proper scale of fees to be paid for the readmeasurement of the spaces to be deducted from the gross tonnage of a vessel.

CONCLUSION.

Your Committee feels assured that the delegation of the power to determine the amount of the fee is adequately protected, is within the decisions of the Supreme Court, and is constitutional.

VI.

THE ADJUSTMENT OF IMPORTS.

THE PROVISIONS OF THE BILL.

Section 301 of the bill provides that it shall be unlawful to import any agricultural commodity, or any derivative thereof or competitive substitute therefor, if the President has found, after the declaration of a special emergency in respect of the commodity, that the importation is increasing materially or is likely to increase materially the losses of the corporation. Upon such finding, the President is directed to declare that fact by proclamation. The prohibition becomes effective immediately, unless the President has ascertained what rate of duty would be sufficient to prevent the losses and declares that rate of duty in the proclamation. In this event, the rate of duty so ascertained is imposed, in addition to the existing rate of duty. The last clause of subdivision (c) denies the power to decrease any existing rate of duty.

The section is based directly upon the provisions of section 14 of the Food Control Act of August 10, 1917 (quoted, infra, page 102), and of section 6 of the Wheat Guaranty Act of March 4, 1919 (quoted, infra, page 102).

THE PROBLEMS.

The problems presented are:

May Congress make the prohibition of importation, or the imposition of an additional rate of duty, contingent upon a determination by the President that the stated facts exist?

May Congress impose the additional rate of duty which the President, in the exercise of the power delegated to him, has ascertained?

DISCUSSION.

Insofar as the prohibition of importation is concerned, the section under discussion does not involve the problem of the delegation of legislative power. The prohibition is made contingent upon the determination by the President of a fact that the importation "is increasing materially, or is likely to increase materially, the losses of the corporation." Upon such determination, the section prescribes that the importation is prohibited.

The imposition of the rate of duty, on the other hand, depends upon the ascertainment of the additional fact-the rate "sufficient to prevent such losses." The President not only determines the fact upon the existence of which an additional rate of duty is imposed, but he ascertains the facts which measure the amount of the additional duties. For this reason, a problem is involved similar to the problem of the delegation of legislative power discussed under Part V (supra, page 89). On account of the extent of the power of Congress over foreign commerce, however, it differs somewhat from that problem.

A. THE PLENARY POWER OF CONGRESS OVER FOREIGN COMMERCE.

An extended citation of cases to support the proposition that the power of Congress over foreign commerce is plenary is unnecessary. Mr. Chief Justice White, in Buttfield v. Stranahan (1904, 192 U. S. 470, 492-493), in a paragraph which has been frequently quoted with approval, defined the power of Congress over foreign commerce as follows:

The power to regulate commerce with foreign nations is expressly conferred upon Congress, and being an enumerated power is complete in itself, acknowledging no limitations other than those prescribed in the Constitution. Lottery Case, 188 U. S. 321, 353-356, Leisy v. Hardin, 135 U. S. 100, 108. Whatever difference of opinion, if any, may have existed or does exist concerning the limitations of the power, resulting from other provisions of the Constitution, so far as interstate commerce is concerned, it is not to be doubted that from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries; not alone directly by the enactment of embargo statutes, but indirectly as a necessary result of provisions contained in tariff legislation. It has also, in other than tariff legislation, exerted a police power over foreign commerce by provisions which in and of themselves amounted to the assertion of the right to exclude merchandise at discretion. This is illustrated

by statutory provisions which have been in force for more than fifty years, regulating the degree of strength of drugs, medicines and chemicals entitled to admission

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