arises under this section is as to the power of Congress to fix the charges of common carriers.

Is this a "regulation of commerce" within the meaning of the Constitution?

Some light is thrown upon this matter by the opinion of the Supreme Court of the United States (Munn v. Illinois, 94 U. S., 113), where the general subject is fully examined, and where the court held, that, under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens towards each other, and, when necessary for the public. good, the manner in which each shall use his own property. It has in the exercise of these powers been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common carriers, hackmen, bakers, millers, wharfingers, inn-keepers, etc., and in so doing to fix a maximum of charge, to be made for services rendered, accommodations furnished, and articles sold. When the owner of property devotes it to a use, in which the public has an interest, he, in effect, grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public for the common good as long as he maintains the use.

He may withdraw his grants by discontinuing the use. The Supreme Court, in the same

case, held that common carriers exercise a sort of public office, and have duties to perform in which the public is interested. Their business is therefore affected with a public interest.

Mr. Chief-Justice Waite, who delivered the opinion of the court in that case, said: "In countries where the common law prevails, it has been customary from time immemorial for the Legislature to declare what shall be a reasonable compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any charge made would be unreasonable. Undoubtedly, in mere private contracts relating to matters in which the public has no interest, what is reasonable must be ascertained judicially, but this is because the Legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is

implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms or forego the use." (See also Chicago, Burlington, and Quincy R. R. Co. v. Iowa, 94 U. S., 155; Peik v. Chicago, etc., Ry. Co., 94 U. S., 164.)

But the reasoning of these cases does not cover, it seems, the fourth section of the law which we are considering, because Congress does not attempt to fix therein any limit or price of compensation for the carrier; but arbitrarily declares that a common carrier shall not receive a greater or as great a compensation for a short as for a long haul, entirely irrespective of the merits of the service, and what it is reasonably and justly worth.

Second: The next point that will arise, assuming the power of Congress to fix the charges, is as to what constitutes a "reasonable and just" charge.

As the law stood before the Inter-State Commerce Act passed—at common law-if the parties to a contract did not stipulate the amount to be paid for any given service, the sum recovera

ble, by the person furnishing the service, was a just and reasonable sum. In the absence of special contract, this rule applied to common carriers as well as other persons.

But as the law now is, under the Inter-State Commerce Act, the parties are no longer allowed to make absolute contracts, for the rendering of a service in the transportation of passengers or property, or in the receiving, delivering, storage, or handling of the same. The common carrier and shipper are no longer permitted to deal with each other as they please, because, so far as the amount to be received for the services is concerned, if they contract for a sum not “reasonable and just," such contract is void, because it is prohibited. merly the shipper could say to the common carrier : "If you will transport certain goods from Chicago to New York, I will pay you one dollar per hundred weight"; and such a contract was good, and could be enforced by the common carrier, regardless of the fact that such charge was excessive or unreasonable, because, in the absence of fraud, the law would not interfere with the private bargains of suitors. It allows its subjects to make their own bargains. But now it is otherwise; no contract can be

For

enforced between the shipper and the carrier, where the amount claimed for the service is not just and reasonable.

The question as to what is a "reasonable and just" charge is to be determined by the courts, as intimated by the Supreme Court of the United States in the cases to which we have heretofore alluded (Munn v. Illinois, 94 U. S., p. 113; Chicago, Burlington, & Quincy R. R. Co. v. Iowa, 94 U. S., 155; Peik v. Chicago, etc., Ry. Co., 94 U. S., 164); and evidence would be admitted on the part of both the shipper and the common carrier to show what was a reasonable and just charge. What the nature of such evidence will be, depends upon each individual

case.

The ultimate decision of the question would, in an ordinary action at common law, be left to a jury to determine; but under the 13th, 14th, and 15th sections of the Inter-State Commerce Act, this question, of what is a reasonable and just charge, may also be determined by the Railroad Commission.

But as under the 9th section of the Act, any person claiming to be damaged by a common carrier may bring suit in his name, and on his own behalf, in any District or Circuit Court of