mination of questions of law, so that an order, regular on its face, may be set aside if it appears that (4) the rate is so low as to be confiscatory and in violation of the constitutional prohibition against taking property without due process of law; or (5) if the commission acted so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it; or (6) if the authority there involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power." 18

Recourse to the courts to settle these questions is itself governed by these principles. The vindication of the constitutional securities of those whose rights have been invaded cannot be withdrawn from the courts, nor can the power to say whether the coercion in question is without warrant of law. Even without a provision in the legislation for the determination by the judiciary of the question whether the authorities have exceeded their powers, the courts will give appropriate relief to a plaintiff whose rights are being invaded by public officers acting beyond their real authority. But whether there shall be anything in the nature of an appeal on the facts from the judgment of the commission, and the extent of that right, is altogether a question of what statutory provision has been made therefor. In the case of the Interstate Commerce Commission, Congress has left to the judgment of that body upon the facts before it about as much finality as is constitutionally possible, as was pointed out recently in Atchison, Topeka & Santa Fe Railway v. United States.19 But examination of the facts which are material to the controversy is so indispensable in any justiciable question that the federal courts often seem to be reviewing the discretion of the Commission as to facts, when they are in reality only keeping it within the laws.20

18 Where the commission orders carriers to desist from according different rates to coal intended for the use of railroads than to commercial coal, and the facts, circumstances and conditions upon which it bases its orders are undisputed, and the question involved is the construction of the pertinent sections of the Act to determine whether the different charges constitute violations of those sections, the order is not merely administrative and is open to review by the courts. Interstate Commerce Commission v. Baltimore & O. R. R. Co., 225 U. S. 326, 32 Sup. Ct. 742 (1912). 232 U. S. 199, 34 Sup. Ct. 291 (1914).

19

20 It is competent for the legislature to provide that the burden of proof shall be

It should be noted in this connection that no case of invasion of rights secured by the Constitution arises when the Commission dismisses by an adverse decision a shipper who is complaining that rates charged him are more than he should be obliged to pay. As has just been seen, where a carrier is subjected to regulation to the extent of being obliged to serve at less than a fair return, it is being subjected to unconstitutional deprivations. But unlike the carrier who must serve all at the rate established by law, the shipper is not obliged to ship unless he wishes, and his property is not therefore taken from him by compulsory process in the view of the law. This doctrine that, whereas a carrier has constitutional rights to attack the decision of a commission, the shipper only has such statutory rights as may be provided, is shown in the recent case of Hooker v. Knapp.21 That case held that, as the system of procedure provided by the Interstate Commerce Act contained no provision for appeal by a party whose complaint had been dismissed by the Interstate Commerce Commission, he had no right whatever, as he had no basis for recourse to the courts upon the ground that he could not earn a livelihood shipping at the rates upon the existing basis.22 This decision is quite consistent with the theory of administration underlying our system at present. If the body duly charged with seeing that only such rates are charged as are reasonable decides that the interests of the public are protected, why should anybody have any standing to go to the courts about it any more than for any other difference of opinion as to matters of government?

When, therefore, the provisions which Congress has made show plainly enough that the jurisdiction of the Commission was designed to be exclusive, that will be the end of cognizance of such matters before any other tribunal, — otherwise than has just been described, by recourse to the proper court, to set the order of the Commission aside as in excess of jurisdiction. How far the

upon those seeking to set aside the action of the commission as unreasonable; but to declare that the findings of the commission shall be taken as conclusive evidence of what is reasonable in the premises would be withdrawing ultimate rights from judicial inquiry, which cannot constitutionally be done. Richmond & D. R. R. v. Tramwell, 53 Fed. 196 (1892).

21 225 U. S. 302, 32 Sup. Ct. 769 (1912).

22 In the opinion in Proctor-Gamble & Co. v. United States, 225 U. S. 282, 32 Sup. Ct. 761 (1912), the bases for this doctrine were first stated.

courts will go in working out such intent is seen in the leading case of Texas & Pacific Railway v. Abilene Cotton Oil Company, 23 where it was held that, as to wrongs done shippers for which redress was provided by the processes of the Commission, no suit could be brought elsewhere in any court. If a shipper is ready to prove that the rate charged him was outrageously high he can no longer, as formerly, litigate the matter in the courts, and show that the established rate is unreasonable. He must go to the Commission to get the scheduled rate set aside, and reparation awarded him for the extortion. Indeed, the theory is that the scheduled rate is the only legal rate until thus altered; and this has had the startling result of compelling shippers to pay the scheduled rate, even when a lower rate was quoted them.24 Whatever is duly confided to the jurisdiction of a commission is thus automatically withdrawn from the cognizance of the courts as an original question.

IV.

The general scope of the jurisdiction of a commission is usually plain enough; it is the application of these principles to the facts which makes the difficulties. As to the matters placed within the jurisdiction of a commission to regulate, these may ordinarily be determined by an examination of the statute itself. Over what callings a commission has jurisdiction can usually be stated by simply reading the act. There was no basis upon which the Interstate Commerce Commission could have pretended to have power over telephones until its jurisdiction was extended to this

23 204 U. S. 426, 27 Sup. Ct. 350 (1907).

In Robinson v. Baltimore & O. Ry., 222 U. S. 506, 32 Sup. Ct. 113 (1912), it was held that no action based upon a complaint of discrimination resulting from the enforcement of schedules in effect could be brought in the courts, exclusive jurisdiction to reform such schedules as might be thought to be discriminatory having been given to the commission, together with the secondary relief of private reparation for damages caused by the past enforcement of such schedules.

24 Texas & P. Ry. v. Mugg, 202 U. S. 242, 26 Sup. Ct. 242 (1906), is the case most often discussed in this connection.

Since the commission now has power to suspend the taking effect of rates filed with it, it would seem that the courts have no power to enjoin the filing of a schedule of rates under a bill brought prior to the date of filing of the tariffs, since the commission has exclusive jurisdiction of determining all questions of reasonableness with respect to rates. Columbus Iron & Steel Co. v. Kanawha & M. Ry. Co., 171 Fed. 713 (1909).

service by the recent amendment. But there are always outstanding doubts as to what jurisdiction has been given to the Interstate Commerce Commission by the various clauses of the Act to Regulate Commerce with its successive amendments. It was not until the recent decision of the Supreme Court in Omaha & Council Bluffs Street Railway v. Interstate Commerce Commission,25 that it was settled that Congress, by putting interstate transportation by railroad companies under the jurisdiction of the commission, had not intended to include a street railway running over an interstate bridge. To what extent the commission has power to go in regulating the businesses upon its list may also usually be discovered without difficulty by consulting the statute. Thus it would not occur to anyone that, as the Act to Regulate Commerce now stands, a railroad company would have to get permission from the Interstate Commerce Commission for the making of a bond issue.26 Nevertheless there are many questions as to the conditions upon which the powers apparently granted to the commission may be exercised, as will be seen presently.

Sometimes it is easy to see the limitations which the statute imposes upon the action of the commission; at other times it is difficult. Where there are explicit clauses plainly stating the powers conferred, it would seem that there ought to be no hesitation in keeping the commission within the law. If the legislature has judged it wise to confine the activity of the commission within bounds which it has fixed, there is nothing for the courts to do except to insist that the commission takes no action beyond these limits. Whether the court thinks that the policy of the legislature in thus limiting the scope of the work of the commission is wise or not should make no difference. It is a question of holding the commission to the limitations set upon it for better or worse. On the other hand, if the legislature by true intendment has said that the jurisdiction of the commission shall go to certain lengths, it is not for the commission to cut down the scope of the act by im

26 A case similar in character involving simply the interpretation of the scope of the phraseology of the Act is Interstate Commerce Commission . Humbolt S. S. Co., 224 U. S. 474, 32 Sup. Ct. 556 (1912), where the court ordered the commission to take cognizance of matters relating to carriage in Alaska, on the ground that the district was sufficiently described by the word territory.

posing limitations of its own upon the extent of the legislation. The commission as an administrative body is there to enforce the law; thus far it may go and no further. It is all a question of getting at the true intent of the legislative provisions by proper interpretation. Thus, in Interstate Commerce Commission v. Delaware, Lackawanna & Western Railway,27 it was held, in view of certain canons of statutory interpretation peculiarly applicable to the case, that forwarders collecting goods of others were as much within the Act as other shippers, and could not be refused car-load rates enjoyed by others.2

28

Where the conditions are explicit there is no excuse for taking action without warrant of law. It is only where the phraseology is capable of various interpretations that the court has any scope for those canons which teach us to construe legislation of this sort as liberally as one may in order to effect the objects which the legislature seems to have had in mind. A good example of the enforcement of the statute as it stood is the case of Interstate Commerce Commission v. Delaware, Lackawanna & Western Railway,29 where the power of the Interstate Commerce Commission under Section 1 of the Act to Regulate Commerce was brought to question. By the reading of that part of the section it appeared that shippers who were prejudiced by lack of shipping facilities could go to the Commission for an order for the establishment of a switch connection with the railroad system. The applicant in this particular case was not a shipper, but the owner of a branch line desirous of establishing business relations. The court spoke sharply on this point of confining the power of the Commission to the Act.30 The statute provides the only remedy which Congress had in mind, it said. It stands as the law, and must be accepted as the

27 220 U. S. 235, 31 Sup. Ct. 392 (1911).

28 The right to reparation being secured to shippers for two years by the Act, the commission cannot qualify that right by barring a complainant for laches within that time, or by demanding that the proof shall be conclusive. Thompson Lumber Co. v. Interstate Commerce Commission, 193 Fed. 682 (1910).

29 216 U. S. 531, 30 Sup. Ct. 415 (1910).

30 Not only may the commission not give relief to complainants who have no rights under the Act, but it carnot entertain complaints for wrongs not covered by the Act. See Pittsburgh C. C. & St. L. Ry. v. Knox, 177 Ind. 344, 98 N. E. 295 (1912), holding that the Commission has no jurisdiction under the Act over suits by shippers to recover damages caused by delays in transportation.