proposition that: "The legislature may directly, or in the absence of constitutional restriction may commit the authority to fix rates to a subordinate body." But another opinion contains the fullest and most explicit language on this subject.12 As it refers to a prior decision regarding the conferring of power on Interstate Commerce Commission,13 as the only case in support of what is said, it must be that the rule as to such a commission and a state commission stand on the same principle. It was said: "The jurisdiction of the (State Railroad) Commission to establish all rates at one time and in regard to all commodities on all railroads in the state, on a general and comprehensive complaint to the commission that all rates are too high, or upon like complaint of the commission itself, must be conferred in plain language. The commission, as an extraordinary tribunal of the state, must have the power herein exercised conferred by a statute in language free from doubt. The power is not to be taken by implication; it must be given by language which admits of no other reasonable construction." The statute in this case gave to the commission power upon complaint against a particular railroad to investigate and determine whether it has been guilty of extortion to "make and fix a just and reasonable rate." This was held insufficient authority to fix maximum rates on all commodities: "This language is not apt by which to confer power to establish schedule of rates applicable in all cases to all commodities and on all roads." And yet it necessarily may be thought, that it is plainly unfair to say the commission should

12 Siler v. L. & N. R. R. Co., 213 U. S. 175, 29 Sup. Ct. 451, 53 L. Ed. 753.

13 Interstate Com. Com. v. Cin. N. O. & T. P. Ry., supra.

be confined in its view to the rate on a particular commodity, and that the general schedule of charges should not be looked at. This restricted method of view would seem not able to avoid preferences and discriminations. Indeed, it might be impossible for adequate consideration of any complaint or of any particular rate. But it would appear, that had the commission have acted on a complaint as to a particular rate as this statute provided, its finding and order would be sustained, as "the rate-making power necessarily implies a range of legislative discretion; and so long as the legislative action is within its proper sphere, the courts are not entitled to interpose and upon their own investigation of traffic conditions and transportation problems to substantiate their judgment with respect to the reasonableness of rates for that of the legislature or of the railroad commission exercising its delegated power."" For other cases showing denial of commission's authority to exercise jurisdiction see those cited at the end of the next preceding section.

Where the constitution provided that a commission has legislative, executive, administrative and judicial powers courts will distinguish their exercise according to the nature of the act performed.15

It is a question of law for a commission to claim jurisdiction as regards a subject or question, where the highest court in the state has held it can exercise no jurisdiction.16

14 L. & N. R. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48, 58 L. Ed. 229.

15 Oklahoma Gin Co. v. State (Okla.), 158 Pac. 629; St. Louis & S. F. R. Co. v. Williams, 25 Okla. 662, 107 Pac. 428.

16 People v. Peoria & P. U. Ry. Co., 273 Ill. 440, 113 N. E. 68.

§ 173.

CHAPTER XXXV.

COMMISSIONS AS SPECIAL TRIBUNALS

All questions of law jurisdictional.

174. Commission with legislative, judicial, executive powers. 175. Test necessary to demonstrate unconstitutionality.

176. Exercise of jurisdiction by a commission.

$ § 173. All Questions of Law Jurisdictional. There are questions of law in procedure by commissions, as for example, that fair notice has not been given, or that a particular power has not been conferred, or that the statute conferring the power is unconstitutional, or that it has been misinterpreted, or that the regulation does not permit the railroad or other public utility earning fair compensation or that orders of a commission are arbitrary or not within reasonable discretion. We have seen that when a commission acts within its powers there is to be accorded to its findings, rulings and orders a prima facie presumption of correctness the same as where the Congress or legislature acts directly.' The Grand Trunk case is an excellent illustration of orders by a commission operating on prior contracts just as a statute would, when rights acquired by contract are subject to the police power or regulatory methods in their modification or abolition. Thus the Indiana commission made an order for the installation and use of an interlocking plant at a railroad crossing and apportioning the expense of compliance therewith. There was a contract whereby the expense of guarding the crossing

1 Grand Trunk Ry. Co. v. Indiana R. R. Com., 221 U. S. 400, 403, 31 Sup. Ct. 537, 55 L. Ed. 786; Prentis v. Atlantic C. L. Co., 211 U. S. 210, 29 Sup. Ct. 67, 53 L. Ed. 150; Knoxville v. Knoxville Water Co., 212 U. S. 1, 29 Sup. Ct. 14, 53 L. Ed. 371.

in a certain way was to be borne by a certain other railroad, but it did not include all of the ways for guarding that the commission's order called for. The court adds: "But to avoid any misapprehension that might otherwise arise, we deem it well to observe that we do not, by what is here said, suggest or imply that the contract, if its terms were broad enough to include the expense in question, would be an obstacle to the apportionment of that expense under the statute, citing cases referred to in note here appended.2

$174. Commission With Legislative, Judicial, Executive Powers. In the Prentis case, supra, which related to a constitutional provision the constitution of Virginia defining the powers of the State Corporation Commission, and construed by the courts of that state as vesting it with those that are legislative, judicial and executive,3 Justice Holmes said: "We shall assume that when, as here, 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." It before was said that:* "A local statute investing a collection of powers not of the judicial department, with powers that are judicial and authorizing them to exercise the pardoning power, which alone belongs to the governor of the state, presents no question under the constitution of the United

2 Chicago, B. & Q. R. R. Co. v. Nebraska, 170 U. S. 57, 71, 8 Sup. Ct. 513, 42 L. Ed. 948; N. Y. & E. R. R. Co. v. Bristol, 151 U. S. 556, 567, 14 Sup. Ct. 437, 38 L. Ed. 269.

3 Norfolk & P. B. R. Co. v. Commonwealth, 103 Va. 289, 49 S. E. 39; Atlantic C. L. Co. v. Commonwealth, 102 Va. 599, 46 S. E. 911. 4 Dreyer v. Illinois, 187 U. S. 71, 23 Sup. Ct. 28, 47 L. Ed. 79. See also Satterlee v. Matthewson, 2 Pet. 380, 7 L. Ed. 458; Liebermann v. Van De Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305,

States." The Prentis case goes on to say that that court would assume without deciding that, if the commission was proceeding to enforce one of its orders. and punish for its breach, it would be acting as a court, and would be protected from interference by the court of the United States. As to the action excepted to, however, in that case the commission was acting in a legislative way. "A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by noting a new rule 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 and judicial in its kind as seems to be fully recognized by (Virginia) Supreme Court of Appeals."

6

§ 175. Test Necessary to Demonstrate Unconstitutionality. The theory that a regulation is a legislative act looking only to the future appears not to have been regarded by two of the dissentients in the Eight-Hour Day decision. Thus Justice Pitney said: "Congress, although confessedly not in possession of the information necessary for intelligent and just treatment of the pending controversy" provides for an investigation into the justice of experimental legislation. Of course

5 Com. v. Atlantic C. L. Co., 106 Va. 61, 55 S. E. 572; Winchester & S. R. R. Co. v. Com., 106 Va. 264, 55 S. E. 692. See also Interstate Com. Com. v. Cin. N. O. & T. P. Ry. Co., 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243; San Diego L. & T. Co. v. Jasper, 189 U. S. 439, 23 Sup. Ct. 571, 47 L. Ed. 892; Oklahoma Gin Co. v. State (Okla.), 158 Pac. 629.

6 Wilson v. New, (U. S.), 37 Sup. Ct. 298, 61 L. Ed. —.