stamp duty upon bills of lading for the transportation of goods from a port in one state to a port in another.64

While a state may tax the property of those persons, natural or corporate, who may be by residence subject to its jurisdiction, even if that property be invested in ships,65 yet a state may not tax property invested in shipping, whose owners are not personally subject to its jurisdiction, and which come into its ports in the pursuit of commerce,66 and this exemption is not adversely affected by a temporary enrollment of a ship in a port of the taxing state."7 Nor can a state tax shipping as such, when engaged in foreign or interstate commerce, though its owners be subject to its jurisdiction,68 for taxation so imposed amounts to a regulation of commerce.69

Transportation-(c) The Interstate Commerce Act.

In the years preceding 1870, the people, recognizing the fact that the development of the Middle and Western states required, as speedily as possible, improved means of communication, facilitated by legislation, and by prodigal grants of state and county aid, the organization and construction of railway lines; but, in the years following 1870, some of the railways having come to regard themselves as mere corporations for private gain, and, as such, entitled to conduct their business without regard to the public in

64

Almy v. California, 24 How. 169, as explained by Miller, J., in Woodruff v. Parham, 8 Wall. 124, 137.

T. Co. v. Wheeling, 99 U. S. 273; W. F. Co. v. East St. Louis, 107 id. 365.

66

Hays v. P. M. S. Co., 17 How. 596; St. Louis v. W. F. Co., 11 Wall. 423; G. F. Co. v. Pennsylvania, 114 U. S. 196.

67

306.

31.

Morgan v. Parham, 16 Wall. 471; Act of 18th February, 1793, 11 Stat.

6 Moran v. New Orleans, 112 U. S. 69; S. S. Co. v. Portwardens, 6 Wall.

"Harman v. Chicago, 147 U. S. 396.

terest, popular feeling was excited, a reaction came, and some of the states, and afterwards the United States, undertook by legislation to correct the abuses, and enforce correct principles, of railway administration. Hence the Interstate Commerce Act and its amendments,70 which apply to all interstate common carriers, by railroad or partly by railroad and partly by water, "under a common control, management, or arrangement, for a continuous carriage;" require all charges to be reasonable and just; forbid unjust and unreasonable charges; prohibit the receipt from any person of "a greater or less compensation for any service rendered . . . than that received from any other person for a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions;" forbid undue or unreasonable preferences or discriminations, either personal or local; require reasonable, proper, and equal facilities for the interchange of traffic with other lines, and forbid discrimination in rates as between connecting lines; forbid the receipt of as great, or "greater compensation in the aggregate . . . under substantially similar circumstances and conditions for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance," provided, however, that the commission may prescribe the extent to which a designated carrier may be relieved from the operation of this prohibition; forbid the pooling of freights, or division of earnings, by competing lines; require publication of foreign and interstate rates; forbid

TO Act 4th February, 1887, 24 Stat. 379, as amended by Acts of 7th August, 1888, 25 Stat. 382; 2nd March, 1889, 25 Stat. 855; 10th February, 1891, 26 Stat. 743; 11th February, 1893, 27 Stat. 443; 2nd March, 1893, 27 Stat. 531; 1st April, 1896, 29 Stat. 85; 8th February, 1895, 28 Stat. 643; 3d March, 1901, 31 Stat. 1446; 11th February, 1903, 32 Stat. 823; 19th February, 1903, 32 Stat. 847; 2nd March, 1903, 32 Stat. 943.

any advance in rates except after ten days' public notice; permit reductions in rates after three days' public notice; forbid all departures from the published rates; require schedules of rates to be filed with the commission; forbid combinations to prevent continuous carriage; declare carriers to be liable for non-compliance with the acts to any person injured thereby in the full amount of damages, together with a reasonable counsel or attorney's fee; authorize complaint to the commission, or action at law in the federal courts by any person injured by a carrier's non-compliance with the acts; provide that no person shall be excused from attending and testifying or from producing books, etc., on the ground that the testimony, or evidence, documentary or otherwise, required of him may tend to criminate him, but that no person shall be prosecuted, or subjected to any penalty or forfeiture, on account of any transaction, concerning which he may testify, or produce evidence, in any such proceding; subject to punishment by fine the corporation and all directors, officers, or employees violating the act; create a commission of five members, holding office for a limited term, not more than three of the members to be appointed from the same political party; authorize the commission to inquire into the management and operation of carriers, with power to require the attendance and testimony of witnesses and the production of papers, and to that end to invoke the aid of the courts of the United States; vest jurisdiction in the commission to examine and to take testimony upon complaint made by any person, natural or corporate; authorize the commission to investigate of its own motion; forbid the dismissal of a complaint "because of the absence of direct damages to the complainant;" make the findings of the commission prima facie evidence in all judicial proceedings; require the commission, and author

ize any party interested, in case of the carrier's refusal or neglect to obey any lawful order of the commission, to apply in a summary way by petition to the courts of the United States for relief, and vest jurisdiction thereof in such courts, and authorize the court to enter a decree and issue process with right of appeal to the appropriate federal appellate tribunal; authorize the commission to make rules; fix the principal office of the commission in the city of Washington, but authorize it to hold special sessions, and prosecute inquiries, in any part of the United States; authorize the commission to require reports from carriers as to share and debt capital, rates, administration, and accidents to passengers or employees; require the commission to make annual reports to the Secretary of the Interior for transmission to Congress; and provide that carriers may carry free, or at reduced rates, goods for the United States, and municipal governments, or for charitable purposes, or for exhibition at fairs, etc., and may issue mileage, excursion, or commutation passenger tickets, or give reduced rates to ministers of religion, municipal governments for the transportation of indigent persons, inmates of soldiers' and sailors' homes, officers and employees of their own line, and may exchange passes and tickets with other lines. Under the act and its amendments, it has been decided that the Interstate Commerce Commission is a body corporate, with power to sue, and to be sued, in the federal courts."1 It is not a court, because its members do not hold their offices by the tenure of good behavior, and because the duties imposed upon it are not judicial in their nature. It is, however, a "subordinate administrative, or executive, tribunal," 72 and, as such, it cannot exercise the legislative power of fixing rates in

" T. & P. Ry. v. I. C. C., 162 U. S. 197.

72 I. C. C. v. Brimson, 154 U. S. 447.

73

futuro; nor can it indirectly fix rates by determining what would be a reasonable rate, and then obtaining from the courts an order restraining a carrier from making in futuro a charge in excess of such rates.74 In actions to enforce the orders of the commission an appeal from a circuit court now goes, not to the Supreme Court, but to the circuit court of appeals.75 The provision in section 12 of the act that the commission may "invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, etc.," is not open to constitutional objection upon the theory that it imposes upon a judicial tribunal duties which are not in their nature judicial.76 The commission cannot compel obedience to its orders by entering a judgment subjecting any person to fine or imprisonment, for the power to impose such penalties, in order to compel performances of a legal duty imposed by the act, can only be exercised by a competent judicial tribunal." A witness in any inquiry by or on behalf of the commission could not, before the passage of the Act of 11th February, 1893,78 be required to answer questions when he stated that his answers might tend to criminate him; 79 but, as that act provided that "no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction . concerning which he may testify or produce evidence . . . before said commission . . . in any such case or proceeding" he can now be compelled to answer

78

7 C., N. O. & T. P. Ry. v. I. C. C., 162 U. S. 184; I. C. C. v. C., N. O. & T. P. Ry., 167 id. 479; Harlan, J., dissented.

"I. C. C. v. A. M. Ry., 168 U. S. 144.

TI. C. C. v. A., T. & S. F. R., 149 U. S. 264.

"I. C. C. v. Brimson, 154 U. S. 447; Fuller, C. J., and Brewer and Jackson, JJ., dissented, and Field, J., did not sit.

78 27 Stat. 443, c. 83.

" Counselman v. Hitchcock, 142 U. S. 547.