mended and published by the State Railroad Commission should be final and conclusive as to what were equal and reasonable charges, and which allowed of no judicial inquiry before the commission, or otherwise, as to the reasonableness of said rates. The majority opinion, written by Blatchford, J., contains the following:

"In the present case, the return alleged that the rate of charge fixed by the commission was not equal or reasonable, and the Supreme Court held that the statute deprived the company of the right to show that judicially. The question of the reasonableness of a rate of charge for transportation by a railroad company, involving, as it does, the element of reasonableness, both as regards the company, and as regards the public, is eminently a question for judicial investigation, requiring due process of law for its determination. If the company is deprived of the power of charging reasonable rates for the use of its property, and such deprivation takes place in the absence of an investigation by judicial machinery, it is deprived of the lawful use of its property, and thus, in substance and effect, of the property itself, without due process of law, and in violation of the Constitution of the United States; and in so far as it is thus deprived, while other persons are permitted to receive reasonable profits upon their invested capital, the company is deprived of the equal protection of the law."

Miller, J. concurred in a special opinion, and Bradley, Gray, and Lamar, JJ. dissented, saying, through Bradley, J., that the question was a legislative question, and not a judicial one, and expressing the opinion that the decision overruled the doctrine of the Granger Cases, as it undoubtedly does.

The principle of the preceding case, however, has never since been overruled, but, on the contrary, has been several times expressly approved.

For instance, in Chicago & Grand Trunk Railway Co. v. Wellman,1 it was the opinion, that, while the legislature has power to fix rates, the right of judicial interference extends to a

unreasonable rates.

case of

And such is the doctrine of Reagan v. Farmers' Loan & Trust Co.,2 where the cases upon the subject are reviewed by Brewer, J., who, however, is somewhat inaccurate in his expression of the scope of the decision in the Granger Cases. He there says: —

"It is doubtless true, as a general proposition, that the formation of a tariff of charges for the transportation by a common carrier of persons

or property is a legislative or administrative rather than a judicial function. Yet it has always been recognized, that, if a carrier attempted to charge a shipper an unreasonable sum, the courts had jurisdiction to inquire into that matter, and to award to the shipper any amount exacted from him in excess of a reasonable rate; and also in a reverse case to render judgment in favor of the carrier for the amount found to be a reasonable charge. The province of the courts is not changed, nor the limit of judicial inquiry altered, because the legislature instead of the carrier prescribes the rates. [But see Chicago, Burlington, & Quincy Railroad . Co. v. Iowa, 94 U. S. 155, and Chicago, Milwaukee, & St. Paul Railroad Co. v. Ackley, 94 U. S. 179.] The courts are not authorized to revise or change the body of rates imposed by a legislature or a commission; they do not determine whether one rate is preferable to another, or what under all circumstances would be fair and reasonable as between the carriers and the shippers; they do not engage in any mere administrative work; but still there can be no doubt of their power and duty to inquire whether a body of rates prescribed by a legislature or a commission is unjust and unreasonable, and such as to work a practical destruction to rights of property, and, if found so to be, to restrain its operation."

The same principle was also upheld in St. Louis & San Francisco Railway Co. v. Gill,1 where the court says:—

"This court has declared, in several cases, that there is a remedy in the courts for relief against legislation establishing a tariff of rates which is so unreasonable as to practically destroy the value of property of companies engaged in the carrying business, and that especially may the courts of the United States treat such a question as a judicial one, and hold such acts of legislation to be in conflict with the Constitution of the United States, as depriving the companies of their property without due process of law, and as depriving them of the equal protection of the laws. Railroad Commission Cases, 116 U. S. 307, 331; Dow v. Beidelman, 125 U. S. 681; Chicago, Milwaukee, &c. Railway v. Minnesota, 134 U. S. 418; Chicago & Grand Trunk Railway v. Wellman, 143 U. S. 339; Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362."

And it was further decided, that the question of unreasonableness must be determined by the effects of the regulation by the State upon the earnings of the entire line of railroad within the State, as against all its legitimate expenses therein.

Secondly, with regard to the provisions of the Constitution relating to impairment of contracts by legislation of a State.

In Chicago, Burlington, & Quincy Railroad Co. v. Iowa,2 the

1 156 U. S. 649.

2

94 U. S. 155.

charter of the railroad involved, namely, the Burlington and Missouri River Railroad (wholly within Iowa), gave the latter power to contract, in reference to its business, the same as private individuals, and to establish by-laws and make all rules and regulations deemed expedient in relation to its affairs, but, on the other hand, subjected the said company at all times to such rules and regulations as the General Assembly of Iowa might see fit to enact. There was no special provision in the charter with reference to the fixing of rates by the railroad company, and the law as applicable under the circumstances was laid down as follows:

"This company, in the transaction of its business, has the same rights, and is subject to the same control, as private individuals under the same circumstances. It must carry when called upon to do so, and can charge only a reasonable sum for the carriage. In the absence of any legislative regulation upon the subject, the courts must decide for it, as they do for private persons, when controversies arise, what is reasonable. But when the legislature steps in, and prescribes a maximum of charge, it operates upon this corporation the same as it does upon individuals engaged in a similar business."

That is to say, where the grant to contract was general, and there was a power of amendment reserved in the State, a railroad company was subject to regulation by the State with regard to its State rates of fare and freight.

In Peik v. Chicago & Northwestern Railway Co.,1 the charter provisions of a Wisconsin railroad entitled it "to demand and receive such sum or sums of money for the transportation of persons and property, and for storage of property, as it shall [should] deem reasonable." The Constitution of Wisconsin in force when these provisions were enacted provided for the alteration or repeal by the legislature of all acts for the creation of State corporations. It was held in the decision, that said charter provisions, by their express grant, placed no limitation upon the powers of the State, and that the legislature thereof could prescribe a maximum of charges for the transportation by the corporation of persons or property within the State, or taken up outside the State and brought within, or taken up inside and carried without. Lawrence v. Same2 presented identically the same question, and was similarly decided. In Winona & St. Peter Railroad Co. v. Blake,3 the railroad company was incorporated as a common carrier, with all the rights, 1 94 U. S. 164.

2 94 U. S. 164.

3

8 94 U. S. 180.

and subject to all the obligations, as such. It was bound by common law, by its charter, and by the Constitution of Minnesota to carry passengers and freight for a reasonable compensation, but such obligation, the court held, in no wise added to or subtracted from the powers of the State, and the case was placed upon the same ground as the foregoing. Southern Minnesota Railroad Co. v. Coleman 1 was precisely similar.

1

In Stone v. Wisconsin, there was a provision in the charter of the railroad company giving the State the right of alteration or repeal; and in this particular the case was like Peik v. Chicago & Northwestern Railway Co.3 Even if, therefore, the legislature had granted the railroad company power to fix rates of fare and freight, the reserved rights of the State would have enabled it to effect an amendment.

In Ruggles v. Illinois, the charter of the company provided that it should have the power to make such by-laws, rules, and regulations as were deemed necessary, provided that the same were not repugnant to the Constitution and laws of the United States, or the State; and, further, that the board of directors should have authority to establish such rates of toll as they should from time. to time determine advisable by their by-laws. It was here held that the State had not parted with its right of control, inasmuch as a grant thereof was never to be presumed.

In Stone v. Farmers' Loan & Trust Co.,5 the railroad charter conferred upon the incorporators power "from time to time to fix, regulate, and receive the tolls and charges by them to be received for transportation." The directors were also empowered to make by-laws, rules, and regulations touching the disposition and management of the company's property, and all matters appertaining to its concerns. It did not appear that there was anything here to show a special contract with the State exempting the railroad from State regulation, and therefore the State was held to have retained its ordinary legislative control. The court said:

"Power is granted to fix reasonable charges, but what shall be deemed reasonable in law is nowhere indicated. There is no rate specified, nor any limit set. Nothing whatever is said of the way in which the question of reasonableness is to be settled. All that is left as it was."

In Stone v. Illinois Central Railroad Co.,6 the language used in

conferring the powers corporate was, that the president and directors may "adopt and establish such a tariff of charges for the transportation of persons and property as they may think proper," and the same "alter and change at pleasure." This case was held to be entirely similar to the preceding, and was decided in the same way.

In Chicago, Milwaukee, & St. Paul Railway Co. v. Minnesota,1 the charter of the railroad company authorized the directors thereof to make needful rules and regulations touching the rates of toll, and the manner of collecting the same, but it was held that such a grant did not deprive the State of its right of legislative supervision.

In St. Louis & San Francisco Railway Co. v. Gill, it was decided that a special statutory exemption or privilege, such as immunity from taxation, or a right to fix and determine rates of fare, does not accompany the property of a railroad company in its transfer to a purchaser, in the absence of an express direction in the statute to that effect.

V.
CONCLUSION.

The following deductions may be made from the present state of the law in relation to charges for passengers and freight:

Interstate Transportation.

1. That the State, even in the absence of Federal legislation, cannot pass laws regulating interstate transportation.

2. That interstate transportation consists of the following: (a) Traffic taken up within a State and carried without, or taken up without and carried within;

(b) Traffic taken through or across a State;

(c) Traffic on a road wholly within a State, but in transit from one State to another.

(a) Traffic taken up within a State and carried to another point therein;

(b) Traffic taken up within a State and carried to another point therein, but upon the journey transported through another State; that is, at least, so far as relates to State taxation of the intrastate portion of the gross receipts from such a carriage.