quite nearly exemplification of the maxim-lex non cogit ad impossibilia.1o

17

The theory further is that administrative boards are allowed to be reasonably contemplated, because the delegation is not strictly legislative in character, and the power delegated can be more conveniently and satisfactorily executed by a board whose time is constantly devoted to the performance of its duty and members become expert in such performance. Wherefore their findings are to be accompanied with a presumption of correctness." The Alabama Supreme Court says: "Our own court is in accord with the holding that the legislature performs its function in creating the laws and can delegate the execution of same to officials legally selected for said purpose, and that the giving of said officials some latitude in the execution of same does not amount to the delegation of authority to legislate.18 Of such as above seems the universal current of authority.

§ 168. Commissions for Gas and Electric Company. -The principle of the delegation of power by the legislature to a commission for the regulation of a railroad is seen in section next ante to be universally sustained,

16 These cases are supported by a great array of authorities, as for example McWhorter v. Pensacola & A. R. Co., 24 Fla. 417, 5 So. 129, 2 L. R. A. 504, 12 Am. St. Rep. 220; Goddard v. Johnson, 61 Kan. 803, 60 Pac. 1068, 49 L R. A. 662; Atlantic Expo. Co. v. Willmington & W. R. Co., 111 N. C. 463, 16 S. E. 393, 32 Am. St. Rep. 805, 18 L. R. A. 393; W., etc., R. Co. v. Com'wth, 106 Va. 264, 55, S. E. 692; I. C. C. v. Brimson, 134 U. S. 447, 14 Sup. Ct. 1125, 38 L. Ed. 1047; State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969, 32 L. R. A. (N. S.) 639.

17 I. C. C. v. Chicago R. I. Co., 218 U. S. 88, 54 L. Ed. 946.

18 Railroad Com. v. Northern Ala. Ry. Co., 182 Ala. 357, 62 So. 749.

and while it readily is apparent that the same rule should apply to a commission for other public utilities or to one embracing railroads with them, yet it is advisable to instance direct authority to this.

A case decided by New York Court of Appeals19 treats this question very fully and in it are cited not only railroad commission but other public utility cases. This particular case concerned the constitutionality of a statute providing for the appointment by the governor of a commission with authority to determine upon complaint of municipal authorities or consumers the maximum price for service by gas and electric light companies. There is traced the history of appointment of commissions for the carrying into effect statutes, both under English and American decision and the difference is stressed between delegation of powers strictly and exclusively legislative and that of formulating rules for the application of law to particular cases. Then the court says: "We are now brought to the consideration whether, not the power to enact general laws for the regulation of rates, but the power to prescribe the particular rates to be charged by particular carriers, public service corporations, or other persons engaged in occupations or business affected with a public interest, and so constitutionally subject to regulation as to their charges as so inherently and exclusively a legislative power that it is impossible of delegation to other branches of the government."

The court then refers to what Justice Brewer said 20 in a railroad case, for an affirmative answer to his

19 Trustees Saratoga Springs v. Saratoga Gas, E. L. & P. Co., 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. (N. S.) 713, 14 Ann. Cas. 606. 20 Inter. Com. Com. v. Cincinnati N. O. & T. P. R. Co., 167 U. S. 479, Sup. Ct. 896, 42 L. Ed. 243.

question. Justice Brewer speaks of prescribing a tariff of rates for railroads as a legislative function, but not of the sort belonging exclusively to legislative power.

Likening the tremendous business of railroads spoken of by Justice Brewer and the diverse conditions making the fixing of rates "a power of supreme delicacy and importance," the New York court applies the principle ex necessitate rei to that of fixing gas and electric rates, saying: "There are in this state approximately 450 gas light and electric light companies. They are located in nearly every portion of the state, which contains within its bounds not only cities varying in population from 10,000 to 4,000,000, but villages, agricultural or rural communities and the wild forests. of the Adirondacks. It is plain that no uniform rate of charges could be established that would be just and reasonable." The statute was held a proper exercise by the legislature of its constitutional power insofar as it attempted to create a commission to fix rates was concerned, but it was constitutional in its direction to the commission to fix rates to last for a certain time, notwithstanding they might become unreasonable within the period.

Generally this class of companies are governed by cities and many cases may be cited where they under delegation of power regulated lighting21 companies.

$169. Commission Regulating Water Companies. -Whether a water company be in the business of supplying water to the inhabitants of a municipality for

21 City of Knoxville v. Knocksville Water Co., 213, U. S. 1, 29 Sup. Ct. 148 L. Ed.; Boerth v. Detroit City Gas Co., 152 Mich. 654, 116 Ct. W. 628, 18 L. R. A. (N. S.) 1197; Cedar Rapids Gas L. Co. v. Cedar Rapids, 144 Iowa 426, 120 N. W. 966; affirmed S. C. v. S. C. 223 U. S. 655, 32 Sup. Ct. 389, 56 L. Ed. 594.

domestic purposes,22 or whether it be used for the irrigation of land23 its business is affected with a public interest and subject to regulation.

In cases where the supplying of water is for domestic purposes the power to regulate usually is confined to municipal corporations24 and the delegation of power was upheld. Where the water was supplied for irrigating purposes generally there were supervisors with delegated powers and in all instances sustained.25 The principle in these cases was the right to delegate because of the public interest involved. Possibly this section cannot be more fittingly concluded than by an excerpt from an opinion by Justice Day of the Federal Supreme Court, as follows:26 "The Congress may not delegate its purely legislative power to a commission, but, having laid down the general rules of action. under which a commission shall proceed, it may require of that commission the application of such rules. to particular situations and the investigation of facts, with a view to making orders in a particular matter

22 Spring Valley Waterworks v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173; Tampa v. Tampa W. W. Co., 45 Fla. 600, 34 So. 631, affirmed in Tampa W. W. Co. v. Tampa, 199 U. S. 241, 26 Sup. Ct. 23, 50 L. Ed. 170.

23 San Diego L. & T. Co. v. Jasper, 89 Fed. 274; Salt River Valley Canal Co. v. Nelssen (Ariz.), 85 Pac. 117, 12 L. R. A. (N. S.) 711; Wheeler v. N. Colo. I. Co., 10 Colo. 582, 17 Pac. 487, 3 Am. St. Rep. 603.

24 Knoxville Water Co. v. Knoxville, 189 U. S. 434, 23 Sup. Ct. 531, 47 L. Ed. 887; Cedar Rapids W. Co. v. Cedar Rapids, 118 Iowa 234, 91 N. W. 1081; Knoxville W. Co. v. Knoxville, 212 U. S. 1, 29 Sup. Ct. 148, 53 L. Ed.

25 San Diego L. & T. Co. v. National City, 174 U. S. 739, 19 Sup. Ct. 804, 43 L. Ed. 1154; County of Stanislaus v. San Joaquin & K. R. C. & I. Co., 192 U. S. 201, 24 Sup. Ct. 241, 48 L. Ed. 406.

26 I. C. C. v. Goodrich Transit Co., 224 U. S. 194, 32 Sup. Ct. 436, 56 L. Ed. 329.

within the rules laid down by Congress. This rule has been frequently stated and illustrated in recent cases in this court and needs no amplification here. ""27

§ 170. Commissions for Various Utilities.-A recent case decided by Illinois Supreme Court's possibly presents an illustration of the far-reaching power of the principle of delegation of authority to a commission. The contention was that there was an assumption that the business of receiving, storing and preserving goods for all applying therefor, to the limit of a company's capacity did not come under the description of businesses the State Utilities Commission was authorized to regulate, if indeed it might be claimed to be a business affected with a public interest at all.

The section of the law applicable to the contention involved speaks of "any plant, equipment or property

for the storage or warehousing of goods for the public," the term warehouse by the act meaning elevators or storehouses for grain and the terms "transportation of property" meaning "any service in connection with the receipt, carriage, delivery elevation, refrigeration, icing, storage and handling of the property transported." But the court construing the statute as a whole said what was also stated as to a public utility in business for production, storage and the furnishing of heat, cold, light, power, electricity or water, showed intent to include the kind of a plant in question.

27 Buttfield v. Stranahn, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 325; Union Bridge Co. v. United States, 204 U. S. 364, 27 Sup. Ct. 367, 51 L. Ed. 523; United States v. Grimaud, 220 U. S. 506, 31 Sup. Ct. 480, 55 L. Ed. 563; Oklahoma Gin Co. v. State (Okla.), 158 Pac. 629.

28 Pub. U. Com. v. Monarch Refrig. Co., 267 Ill. 528, 108 N. E. 716, P. U. R. 1915 D 119.