2.

after this company was organized. A power of government which actually exists is not lost by non-user. A good government never puts forth its extraordinary powers, except under circumstances which require it. That government is the best which, while performing all its duties, interferes the least with the lawful pursuits of its people.

In 1691, during the third year of the reign of William and Mary, Parliament provided for the regulation of the rates of charges by common carriers. This statute remained in force, with some amendment, until 1827, when it was repealed, and it has never been re-enacted. No one supposes that the power to restore its provisions has been lost. A change of circumstances seemed to render such a regulation no longer necessary, and it was abandoned for the time. The power was not surrendered. That remains for future exercise, when required. So here, the power of regulation existed from the beginning, but it was not exercised until in the judgment of the body politic the condition of things was such as to render it necessary for the common good.

Neither does it affect the case that before the power was exercised the company had pledged its income as security for the payment of debts incurred, and had leased its road to a tenant that relied upon the earnings for the means of paying the agreed rent. The company could not grant or pledge more than it had to give. After the pledge and after the lease the property remained within the jurisdiction of the State, and continued subject to the same governmental powers that existed before.2

2 State v. Norval Hotel Co. (Ohio, 1921), 133 N. E. 75 (regulation of rates of innkeepers).

In this connection notice again the cases in Chapter I, Section 3, supra, where the regulations sustained were not in the nature of definitions of duties preexisting, because applied to the recognized survivors of the common callings or to the recipients of franchises, but constituted the imposition under the police power of duties not formerly held to attach to the businesses in question.

In Cotting v. Kansas City Stock Yards Co. (1901), 183 U. S. 79, MR. JUSTICE BREWER, after stating the doctrine of Munn v. Illinois, and referring to cases which had followed it, said, at page 85:

"These decisions go beyond but are in line with those in which was recog nized the power of the State to regulate charges for services connected with any strictly public employment, as, for instance, in the matter of common carriage, supply of water, gas, etc. Spring Valley Water Works v. Schottler, 110 U. S. 347: Railroad Commission Cases, 116 U. S. 307: Wabash, St. Louis & Pacific Railway v. Illinois, 118 U. S. 557: Dow v. Beidelman, 125 U. S. 680: Chicago, Milwaukee, etc., Railway v. Minnesota, 134 U. S. 418; Chicago & Grand Trunk Railway. Wellman, 143 U. S. 339; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362; St. Louis & San Francisco Railway v. Gill, 156 U. S. 649; Covington &c., Turnpike Co. v. Sandford. 164 U. S. 578: Smyth v. Ames, 169 U. S. 466; San Diego Land Co. v. National City, 174 U. S. 739; Chicago, Milwaukee & St. Paul Railway v. Tompkins, 176 U. S. 167."

CENTRAL OF GEORGIA RAILWAY CO. v. RAILROAD COMMISSION OF ALABAMA.

161 Fed. 925. 1908.1

JONES, District Judge. . . .

XV. Has the Legislature attempted to delegate legislative power to the Commission in the authority conferred upon it to make and unmake rates and classifications established by statutes? The act of August 9, 1907, provides in the first section:

"That in all cases where any classification of railroads or of any articles of freight or any maximum rates or charges for the transportation of passengers or freight over any railroad in this state, have been, or may hereafter be prescribed by statute, or any prevailing rates or charges for such transportation have been, or may hereafter be, by statute made the maximum rates or charges, the Railroad Commission of Alabama shall have the power and is hereby authorized to change such classifications and such rates or charges, or any of them, from time to time as conditions may, in its judgment render expedient or proper so to do, whether the effect of such changes be to increase or reduce any of the rates or charges, and to establish and order to be put in force in lieu thereof any new classification or rate or charge which it may deem reasonable and proper; and the classifications, rates or charges so established by it shall be the lawful classifications, rates or charges until further changed by said Railroad Commission."

Like power is given as to the rates and classifications in the acts known as the "Eight Group Acts."

Legislative Power has been Attempted to be Delegated to the Commission as to Change of Statutory Rates and Classifications.

XVI. The will of legislators never becomes the law, unless expressed in the mode and form the Constitution demands. The Legislature, in framing a statute, may provide for its unchanged operation until it is repealed, or it may provide for contingencies arising after it goes into effect, which in its wisdom may require change in the law, and provide for the change, in view of the happening of these contingencies, upon the occurrence of which the lawmaker himself declares in the Statute what the change shall be. But, whatever the intent of the lawmaker, a statute, in order to ripen. into a law, must always be a perfect expression of the legislative 1 The statement of facts is omitted, and only an extract from the opinion is reprinted.- ED.

will, upon every contingency with which the statute deals, as it leaves the hands of the lawmaking power. When the Legislature declares its will as to contingencies, it may lawfully make the taking effect of the statute in the first instance, or its suspension or abrogation afterwards, and the substitution of some other law, depend upon the ascertainment of some particular state of facts by an executive officer. But, to be a perfect expression of the legislative will as to these matters, the statute itself must ascertain or prescribe a state of facts which constitute the condition or contingency upon which the change may be made, and what change shall be effected in the prior law, when that contingency is ascertained. Under a statute so framed, the Legislature has delegated no legislative authority to the executive officer. It has simply made use of his services to ascertain a state of facts, upon the ascertainment of which the Legislature itself declares, in advance, its own judgment as to "what the law shall be" under the changed conditions. The contingency upon which the change shall take place in the operation of a law must be a state of facts which the Legislature either ascertains in so many words, or defines or prescribes by general definition, and upon the finding of which state of facts the Legislature, and not some other body, forms the opinion, and declares that it is expedient and proper to change the operation of the law. The propriety and expediency of changing a law is the very question which the Constitution commits exclusively to the wisdom of the Legislature, and it must express its own judgment and will in the statute as to these questions. If the opinion or judgment of some other department as to the happening of some undefined event, and the effect such event should have upon the legislative policy, is to determine whether there shall be a change in the law, it is the judgment and will of the officer as to the expediency of a change, and not the opinion and will of the lawmaking power, which effects the changes. The statute here makes the expediency and propriety of a change, which shall be made when the officer so determines, depend solely upon the discretion and will of an executive officer, and not upon the happening of any state of facts upon which the Legislature itself has passed its judgment and uttered its commands. The statutes in that posture are neither more nor less than a legislative declaration that there shall be a change in the legislative will because an executive officer deems it expedient, and that because the executive officer so wills thereafter the legislative will shall be only what an executive officer prescribes. This is nothing more nor less than the entire abdication of the duty of the Legislature to determine the expediency and

propriety of legislation, and the surrender of legislative power to an executive officer, to use as he pleases in the future.

The court has struggled hard to find some way, consistent with obedience to the Constitution, to avoid the consequences and inconveniences, both public and private, which must follow from striking down the powers here attempted to be conferred upon the Commission. Finding no escape on principle, the duty of the court is plain. It must enforce the Constitution. The Legislature doubtless intended in the passage of these statutes to leave the whole matter of rates and classifications in the keeping of the Commission, and thought it had done so. It could have done so by an absolute repeal of the schedules and classifications fixed by it, leaving the Commission, as an administrative body, to work out under rules and principles fixed by the Constitution, the statutes, and the common law, what are reasonable classifications and rates, in view of the facts in the particular cases with which the Commission deals. The Legislature could also have retained the "Group Acts" as a general guide for the Commission, and yet given the Commission power to change them, by providing in those statutes that upon the happening of a certain state of facts therein declared or defined, not upon the mere opinion or judgment of the Commission on undefined conditions of which the Commission is the sole judge, and upon which the Legislature itself made no declaration "what the law shall be," the Commission might thereupon change the classifications and rates, within certain limitations, which the statutes themselves would state or define. But nothing of that kind was provided for in any of the statutes. The Legislature has not repealed or changed them. The constitutional trouble with the statute is that the legislative power has specifically declared its will upon the wisdom and expediency of the particular classifications and rates, and put them upon the statute books as the law of the land. It takes the lawmaking power to repeal or change a law, as well as to make a law; and the power of repealing or changing a law, or substituting another law in its stead, cannot be delegated to any other department, much less to a statutory board. Turn the proposition over as we may, and scan it from every constitutional point of view, we are always confronted with the fact that, in order to change the laws now in existence as to rates and classifications, they must be repealed or altered by the legislative power which made them. The legislative power which made them has not repealed or altered them. It has merely attempted to let another body undo what the Legislature has done. It has not declared in any of those statutes its own will as to

"what the law shall be" on any changed state of facts which the lawmakers have defined or prescribed, nor, when that state of facts is ascertained, what shall be either the nature or extent of the changes which the lawmakers will shall result therefrom, except that the wisdom and judgment of the Commission shall be the legislative will as to the change. On these questions, upon which the Legislature must speak if the Constitution be obeyed, it has declared no will of its own as to "what the law shall be." It has simply declared to the Commission that it is authorized, for any reasons it may think of sufficient importance, to unmake what the Legislature has declared to be the law of the land, and set up other standards of its own, which shall stand as the law until again changed by order of the Commission. In short, it has referred the whole matter of "what the law shall be " to the Railroad Commission as a committee with power to act," and declared that the legislative will as to the future shall be whatever the Commission may will and declare.

66

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If such power can lawfully be conferred upon administrative 01ficers in these cases, it cannot be denied to executive officers in other cases. It is an alarming doctrine to proclaim in a free country that the laws for the control of the rights and business of citizens, under the complex conditions of modern life, can be made to give place to different obligations and rules made by executive officers, "whenever conditions may, in their judgment, render it expedient or proper so to do." The whole matter is exhaustively discussed in Field v. Clark, 143 U. S. 694, 12 Sup. Ct. 505, 36 L. Ed. 294, wherein is quoted with approval the words of the Supreme Court of Ohio (Railroad Co. v. Clinton County Com'rs., 1 Ohio St. 88) that:

"The true distinction is between the delegation of power to make a law, which necessarily involves a discretion as to what it shall be, and the conferring of authority and discretion as to its execution, to be exercised under and in pursuance of law. The first cannot be done; to the latter, no valid objection can be made."

10

In the one case the official overrides the law and substitutes his own judgment for it; in the other, he does not change the law, but merely conforms to it. A late instructive case is State v. Great Northern Railway Company, 100 Minn. 445, 111 N. W. 289, L. R. A. (N. S.) 250. Our own cases of Mitchell, Judge, etc., v. State ex rel., etc., 134 Ala. 392, 32 South. 687, and Harlan v. State ex rel., 136 Ala. 155, 33 South. 858, are conclusive on this point.