assumed by the Federal Government if in its judgment this is necessary to the efficient regulation of interstate commerce.22 Even though Congress has not yet acted upon this principle, it has been held that a State commission may not so exert its authority as to interfere in any way with the authority confided to the Interstate Commerce Commission, and an interstate rate fixed by a State commission which operates to create a discrimination against a locality in interstate traffic may be set aside by the Interstate Commerce Commission.23

§ 1141. Action not within the statute.

Granted that the Act in all its parts is constitutional, the Commission must find in it authority for whatever it does; and whether such authority exists is a question for the courts to determine. In an important case it was said by eminent counsel, "The Act is primarily an enumeration of particular duties imposed upon common carriers; of particular acts on their part which are prohibited; and of particular duties and powers relating thereto conferred upon the Commission." 24 In many cases acts of the Commission have been set aside because the requisite authority could not be found. In the main the courts compare the action of the Commission with the Act in the same way that they compare the action of Congress with the Constitution. Since the Act authorized it to declare rates unreasonable and prevent their enforcement, the Commission assumed that it was authorized to fix a reasonable rate, but prior to the amendment of 1906, its orders fixing rates were always declared invalid by the courts. 25 Likewise when the Commission ordered a

22 Minnesota Rate Cases, 230 U. S. 352, 57 L. ed. 1511, 33 Sup. Ct. 749. 23 Houston & Texas Ry. v. United States, 234 U. S. 342, 34 Sup. Ct. 833, 58 L. ed. 1341.

24 Brief of John C. Spooner and John G. Milburn in Harriman v.

Interstate Commerce Commission, 211 U. S. 407, 53 L. ed. 253, 29 Sup. Ct. 115.

25 Interstate Commerce Commission v. C., N. O. & T. P. Ry., 162 U. S. 184, 40 L. ed. 935, 16 Sup. Ct. 700, 13 U. S. Apps. 730, 56 Fed. 925,

through route established under authority of section 4 of the act of June 29, 1906, which, as it then stood, authorized it to require the establishment of such a route when no satisfactory through route existed, the court held that the Commission's decision as to the existence of a satisfactory through route was subject to review, and in this case it was reversed. 26 So also when the Commission, on petition of a carrier, ordered the establishment of switching connections, the courts pointed out that such an order could be made only on petition of a shipper, and held the Commission strictly to the letter of the Act.27 Furthermore in determining whether an order of the Commission is within its power, the courts will look to the substance and not merely to the form. And so when the Commission prohibited an advance in rates, not, as shown by the record, because it was unjust and unreasonable, but because it would be beneficial to the business of the region affected to retain the lower rate, the court found that the Commission had no power to regulate and control the general policy of railroads as to fixing rates, but only the

4 I. C. C. Rep. 582, 4 I. C. C. 744; Interstate Commerce Commission v. C., N. O. & T. P. Ry., 167 U. S. 479, 42 L. ed. 243, 17 Sup. Ct. 896, 76 Fed. 1007, 76 Fed. 183, 64 Fed. 981, 62 Fed. 690, 6 I. C. C. 195; S. F. & W. Ry. v. Florida Fruit Exchange, 167 U. S. 512, 42 L. ed. 257, 17 Sup. Ct. 998, 4 I. C. Rep. 589, 4 I. C. Rep. 400, 5 I. C. C. 136, 5 I. C. C. 13; Interstate Commerce Commission v. L. S. & M. S. Ry., 202 U. S. 613, 50 L. ed. 1171, 26 Sup. Ct. 766, 134 Fed. 942, 9 I. C. C. 264; Interstate Commerce Commission v. Ala. Mid. Ry., 168 U. S. 144, 42 L. ed. 414, 18 Sup. Ct. 45, 74 Fed. 715, 69 Fed. 227, 6 I. C. C. 1; Interstate Commerce Commission v. L. & N. Ry., 73 Fed. 409, 5 I. C. C. 466; Interstate Commerce Commission v. L. V. Ry., 82

Fed. 1002, 74 Fed. 784, 49 Fed. 177, 4 I. C. C. 535; Interstate Commerce Commission v. N. E. Ry. of S. C., 83 Fed. 611, 74 Fed. 70, 6 I. C. C. 295; Farmers' Loan & Trust Co. v. No. Pac. Ry., 83 Fed. 249, 5 I. C. C. 478; Colorado Fuel & Iron Co. v. So. Pac. Ry., 101 Fed. 779, 74 Fed. 42, 6 I. C. C. 488; Interstate Commerce Commission v. N. Y., R. & N. Ry., not reported, see 7th Annual Report of Interstate Commerce Commission, 29, 5 I. C. C. 161, 4 I. C. C. 488.

26 Interstate Commerce Commission v. No. Pac. Ry., 216 U. S. 538, 54 L. ed. 608, 30 Sup. Ct. 155.

27 Interstate Commerce Commission v. D., L. & W. Ry., 216 U. S. 531, 54 L. ed. 605, 30 Sup. Ct. 415.

power to prevent unreasonable and discriminatory rates, and hence the order was set aside. 28 Likewise if the Commission attempts to exercise jurisdiction which it does not possess, as in the case of street car lines 29 or an intrastate road which issued no bills of lading beyond its own line, 30 or if through a mistaken construction of the Act it declines jurisdiction which it does possess, 31 its error will be corrected by the courts. But in determining the meaning of a statute, the courts should look not only to its terms but to the history of its application. Hence, when the Commission has placed a construction upon some feature of the Act, which construction has long obtained in practical execution, and has been impliedly sanctioned by the reenactment of the Act without alteration in the particulars construed, such construction should be treated as read into the Act and should be followed in all strictly identical cases.32 Since all the authority of a commission is derived from the statute by which it was created, it follows that the repeal of the statute ipso facto terminates all proceedings pending before it, whatever may be the stage which they have reached.33

§ 1142. Action in violation of constitutional guarantees.

It is recognized that the rate-making power necessarily implies a considerable range of legislative discretion, and as long as the legislative action is within its proper sphere, the courts are not entitled to interpose and upon their own investigation into traffic conditions and transportation problems to substitute their judgment with respect to the

28 Southern Pacific Ry. v. Interstate Commerce Commission, 219 U. S. 433, 55 L. ed. 283, 31 Sup. Ct. 288.

29 Omaha & Council Bluffs Street Ry. v. Interstate Commerce Commission, 230 U. S. 324, 57 L. ed. 1501, 33 Sup. Ct. 890.

30 Interstate Commerce Commission v. B. Z. & C. Ry., 77 Fed. 942.

31 Interstate Commerce Commission v. Humboldt Steamship Co., 224 U. S. 474, 56 L. ed. 849, 32 Sup. Ct. 556.

32 New York, N. H. & H. Ry. v. Int. Com. Comm., 200 U. S. 361, 50 L. ed. 515, 26 Sup. Ct. 272.

33 Grand Trunk Ry. v. County Commissioners, 88 Me. 225, 33 Atl.

988.

reasonableness of rates for that of the legislature or of a Federal or State commission acting within the range of its delegated power. 34 Granted that the statute under which a commission is acting is constitutional, and that the commission is vested with the power which it has exercised, the question still remains as to whether it has so used its powers as to violate any constitutional right. This question is particularly important in connection with the fixing of rates. It is now well established that this is a function which may be delegated to a commission, but if this is done the power must be so used as not to conIflict with the Fifth and Fourteenth Amendments. While the commissions, both Federal and State, are expected to exercise their rate-making powers to protect the interests of the public, they must also have regard to the property rights of the carrier. They are not at liberty to prescribe rates that will not allow the carrier to earn such compensation for the services rendered as, under all the circumstances, is just and reasonable both to it and to the public, for that would deprive the carrier of its property without due process of law, and would be taking its property for public use without just compensation. Every rate schedule fixed by a commission is therefore open to review in the courts for the purpose of ascertaining whether the rates fixed are confiscatory and whether the carrier's constitutional rights have been violated,35 and any statute which attempted to prevent such judicial action would be void.36 It should be noted, however, that the carrier can complain of the order of the commission only in so far as it affects its own revenues. Its effect on shippers or on localities is immaterial to the carrier, since a court will hear a party only with reference to his own grievances.3 state Commerce Commission, 164 Fed. 645.

34 Louisville & Nashville Ry. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. 48.

35 Lehigh Valley Ry. v. United States, 204 Fed. 986.

36 Missouri, K. & T. Ry. v. Inter

37 Atlantic Coast Line Ry. v. Interstate Commerce Commission, 194 Fed. 449.

Neither will the courts interfere with a rate fixed by the Commission when its effect is to entail a loss of traffic by other roads, 38 nor will they interfere with such a rate unless convinced that its enforcement will result in a loss of revenue.39 A State may do more than authorize its courts to review judicially the rate-making orders of its commismission. It may go farther and in connection with such review it may empower its judicial tribunals to act as a rate-making body and themselves fix a schedule of rates.4o But the Fourteenth Amendment does not entitle the carrier to the exercise by the courts of such extra-judicial authority,11 and the Federal courts have not been given any such authority.42

§ 1143. Action after an inadequate hearing.

The Commission as a quasi-judicial body is vested with many of the powers of a court. It may summon parties before it, may compel the production of papers and the giving of testimony, and may make orders which have the force of law. It is likewise subject to many of the obligations and restraints which rest upon a court. If it may summon parties before it and issue orders which may deprive them of property and in certain respects control their conduct, the parties so affected must have an opportunity to be heard. There are few cases in which this question has directly arisen, but in all of them it is distinctly recognized that administrative orders, quasi-judicial in character, are void if a hearing was denied, or if that which was granted was inadequate or unfair. But if the

38 Norfolk & Western Ry. V. United States, 195 Fed. 953.

39 Central of Georgia Ry. v. McLendon, 157 Fed. 961. That the rate violates the constitutional rights of the carrier must be clear in order to justify the interference of the courts. Eagle White Lead Co. v. Interstate Commerce Commission, 188 Fed. 256.

40 Prentis v. Atlantic Coast Line Ry., 211 U. S. 210, 53 L. ed. 150, 29 Sup. Ct. 67.

41 Louisville & Nashville Ry. v. Garrett, 231 U. S. 298, 58 L. ed. 229, 34 Sup. Ct. 48.

42 Mitchell Coal Co. v. Penn. Ry., 230 U. S. 247, 57 L. ed. 1472, 30 Sup. Ct. 916.