the commission ascertain whether the former or existing rate was unreasonable before it fixed a different rate. And in such an inquiry, for the purpose of prescribing rules in the future, there would be no invasion of the province of the judicial department."

This is a very interesting way of distinguishing between judges arriving at conclusions in a judicial way and a commission reaching a result in a legislative way. If generally a legislature attempted by aid of evidence in a hearing where all interested had the right to appear and offer evidence, in the fixing of a rate in a particular case, this would not derogate from its presumptive knowledge. The method would be merely a means of informing its understanding, and to be only of such value as that understanding saw fit to give it. Weight of evidence essentially would count for nothing, because there might be an imponderable element opposed to it. With a legislature, so it would be with a commission with legislative power conferred upon it.

But the Justice proceeds as follows: "Even where it is essential to maintain strictly the distinction between the judicial and other branches of the government, it must still be recognized that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of executive or legislative, as distinguished from judicial powers. The legislature, had it seen fit, might have conducted similar inquiries through committees of its members, or specially constituted bodies, upon whose report as to the reasonableness of existing rates it would decide whether or not they were extortionate and whether

other rates should be established, and it might have used methods like those of judicial tribunals in the endeavor to elicit the facts. It is 'the nature of the final act' that determines 'the nature of the previous inquiry.'

The quotation used by Justice Hughes is from an opinion by Justice Holmes, dissented from by Chief Justice Fuller and Justice Harlan approving the reasoning by the Chief Justice, but for other reasons agreeing with the majority." In this case the question was whether a legislature could create by appointing a commission to regulate public service corporations, a judicial court of record, the findings of which were to be appealed from as from any other state court of record or be held conclusive. The Prentis case came up in a Federal circuit court to enjoin a finding as to a rate by the State Corporation Commission from being enforced and there was a plea of res judicata. There was a decree for complainants on these pleadings, and this was affirmed in the Supreme Court. Justice Holmes concedes that, if a state constitution "sees fit to unite legislative and judicial powers in a single hand, there is nothing to hinder so far as the Constitution of the United States is concerned." He reasons, however, that it is plain that the fixing of a rate for the future cannot be deemed the exercise of a judicial power. "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. Legislation looks to the future and changes existing conditions by making a new rule

24 Prentis v. Atlantic Coast Line, 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 159.

to be applied thereafter to all or some part of those subject to its power. The establishment of a rate is the making of a rule for the future and, therefore, is an act legislative not judicial in kind. The decision (fixing a rate) cannot be res judicata, when a suit is brought. And it does not matter what inquiries have been made as a preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry and of the decision upon it is determined by the nature of the act to which the inquiry and decision lead up. The nature of the final act determines the nature of the previous inquiry."

The Chief Justice said, in his dissent: "I cannot see why the reasonableness and justness of a rate may not be judicially inquired into and judicially determined at the time of the fixing of the rate, as well as afterwards." A number of reasons might be suggested why, one of which is, that the inquiry never could attain the certainty upon which a judgment on a past act or condition is supposed to rest. To prescribe a rate to be followed in the future amounts to a prophecy that it will be a just rate. The prophecy turning out wrong a new rate ought in justice to be prescribed. Res judicata is applicable only between the same parties upon substantially the same facts. It is merely incidental, in a world of change, if a given state of facts continues to exist. The fixing of rates, therefore, no more than other legislation not of an essentially moral character, can prescribe with certainty a rule essentially just. Nevertheless as prescribing a course of conduct as to things mala prohibita or reasonably to be observed, it has always been recognized

as in the domain of legislative power. The rule of prospective operation of legislation approximates justice, but ex post facto laws are wholly inconsistent with every theory of the right of man to life, liberty and the pursuit of happiness.

CHAPTER XXVI.

DISCRIMINATION IN RATES.

§ 125. Reasonable rate at common law.

126. Reasonableness requires uniformity in rate.

127. Anti-monopoly principle as to rates.

128. Anti-monopoly rule invoked by rate payers.

129. Anti-monopoly rule applicable to all public utilities. Discrimination under legislative authority.

130.

131.

Discretion in classifying.

131a. Special service in round trip and commutation tickets. 131b. Party rate tickets.

132. Summary of this chapter.

$ 125. Reasonable Rate at Common Law.-An English case,' decided in 1861, held that where a railroad company charged a shipper a reasonable sum for carrying his goods, the fact that it charged a less rate to other parties for carrying like goods did not justify recovery by him of the excess paid over what was paid by the others. Crompton, J., one of the judges, said: "The charging another too little is not charging you too much." Cockburne, C. J., speaking of lower rates charged to particular individuals so as to meet competition, said this could be done "for the purpose of advancing the interests of the company as a railway company, and not, as here, to give an advantage to others or to themselves off the railway.”

A Massachusetts case2 speaks of recent English cases, of the class of the Garten case, as being "chiefly commentaries upon the special legislation of parliament regulating" railroads and, therefore, throwing little

1 Garten v. B. & E. Ry. Co., 1 Best & S. 112.

2 Fitchburg R. Co. v. Gage, 78 Mass. (12 Gray) 393.