Waite, dismissed this contention with a brief statement of agreement with the Supreme Court of Mississippi, which had decided that the statute was not repugnant to the constitution of that State (p. 336). The bill was dismissed, reversing the decree of the court below.

The same question came before the court in Reagan v. Farmers' Loan and Trust Co. (154 U. S., 362). In this case an injunction was sought against the railroad commission of Texas to restrain the enforcement of certain rates which had been fixed by that commission. Though the eminent counsel, who argued the case for the plaintiff, did not question the right of the legislature to confer such powers upon a commission, but, on the contrary, conceded it in the following words, "the State may establish maximum rates of charges, either immediately by legislative act or mediately through a commission," the court noticed and decided the question which was necessarily at the foundation of the case. Mr. Justice Brewer, who delivered the unanimous opinion of the court, said:

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there can be no doubt of the general power of a State to regulate the fares and freights which may be charged and received by railroad or other carriers, and that this regulation can be carried on by means of a commission. Such a commission is merely an administrative board created by the State for carrying into effect the will of the State as expressed by its legislation. (Railroad Commission Cases, 116 U. S., 307.) No valid objection, therefore, can be made on account of the general features of this act; those by which the State has created the railroad commission and intrusted it with the duty of prescribing rates of fares and freights, as well as other regulations for the management of the railroads of the State" (pp. 393–394).

These cases affirm the right of a State legislature to confer the power in question upon a State commission. No reason has been advanced, and none can be perceived, why the same principles would not control in the case of a grant by Congress of a like power to a commission over interstate transportation. The Supreme Court in many cases has recognized the propriety of the large delegation of powers of regulation over interstate railroads conferred upon the Interstate Commerce Commission by the act of February

4, 1887. The right of Congress to confer upon a commission the rate-making power was distinctly presented to the court in the case of the Interstate Commerce Commission v. Cincinnati, New Orleans and Texas Pacific Railway Company (167 U. S., 479). In this case the Commission had fixed a group of rates on certain railroads and ordered the railroads to readjust their tariffs so that from and after a day named they should conform to the rates thus fixed. The railroads failed to obey this order and the Commission instituted a suit in the Circuit Court to compel obedience. The bill was dismissed after hearing, and on appeal to the Circuit Court of Appeals that court certified to the Supreme Court the following question:

"Had the Interstate Commerce Commission jurisdictional power to make the order hereinbefore set forth-all proceedings preceding said order being due and regular, so far as procedure is concerned?"

After a careful examination of the interstate commerce law, the court, by Mr. Justice Brewer (Mr. Justice Harlan dissenting without an opinion), held that that act did not confer upon the Commission the power to prescribe future rates, and therefore answered the question in the negative. Obviously, the question certified raised two issues:

First, could Congress confer upon the Interstate Commerce Commission the power to fix rates which should control in the future?

Second, if Congress had the power to do this, did the act under consideration confer upon the Commission the authority to fix rates which should control in the future?

A negative answer upon either of these issues would dispose of the question certified. The court saw fit to decide both issues. It was held upon a brief but sufficiently clear discussion that Congress did have the power to confer upon the Interstate Commerce Commission the authority to fix future rates. Mr. Justice Brewer, speaking for the court, said:

"Before the passage of the act it was generally believed that there were great abuses in railroad management and railroad transportation, and the grave question which Congress had to consider was how those abuses should be corrected and what control should be taken of the business of

such corporations. The present inquiry is limited to the question as to what it determined should be done with reference to the matter of rates. There were three obvious and dissimilar courses open for consideration. Congress might itself prescribe the rates; or it might commit to some subordinate tribunal this duty; or it might leave with the companies the right to fix rates, subject to regulations and restrictions, as well as to that rule which is as old as the existence of common carriers, to wit, that rates must be reasonable." (Page 494).

"The question debated is whether it vested in the Commission the power and the duty to fix rates; and the fact that this is a debatable question, and has been most strenuously and earnestly debated, is very persuasive that it did not. The grant of such a power is never to be implied. The power itself is so vast and comprehensive, so largely affecting the rights of carrier and shipper, as well as indirectly all commercial transactions, the language by which the power is given had been so often used and was so familiar to the legislative mind and is capable of such definite and exact statement, that no just rule of construction would tolerate a grant of such power by mere implication. Administrative control over railroads through boards or commissions was no new thing. It had been resorted to in England and in many of the States of this Union. In England, while control had been given in respect to discrimination and undue preferences, no power had been given to prescribe a tariff of rates. In this country the practice had been varying. It will be interesting to notice the provisions in the legislation of different States." (Pages 494495.)

The foregoing cases dealing with the right of State legislatures to establish a rate-making commission, the clear analogy in this respect between their authority and that of Congress, and the case of the Interstate Commerce Commission v. Cincinnati, New Orleans and Teras Pacific Railway Company (supra) establish beyond doubt the right of Congress to confer upon an administrative body the power to fix and determine maximum railway rates which shall control in the future, by the execution in detail of a gen

eral rule enacted into law, as, for example, that the rates shall be just, reasonable, and without discrimination.

But it does not follow that Congress has the right to confer the rate-making power upon a court. A body exercising the administrative power which I have described might be denominated loosely a court, and the law would not be held unconstitutional merely on account of the name of the administrative body which it created if care were taken to exclude from its functions the powers which are described properly as judicial. In the discussion which follows, however, I shall use the word "court" as describing a body exercising the judicial power of the United States.

I set for myself the task of considering whether Congress may confer constitutionally upon a court of the United States, either by way of original or appellate jurisdiction, the power to fix and determine railway rates for the future.

It appears, perhaps, with sufficient clearness from the cases I have already cited that rate making is purely a legislative function, in the performance of which the legislative body may avail itself of the aid of an administrative body for the execution in detail of general rules which have been enacted into law. This is only another form of saying that the rate-making power is not a judicial function. It, however, may not be inappropriate to secure the further support which may be obtained for this proposition from the declarations which have been made in the opinions of the Supreme Court.

In the case of Reagan v. Farmers' Loan and Trust Company (supra) it was held that the courts have the power to interpose to prevent the enforcement of rates which would be confiscatory of property. In the discussion of that question, which required a delimitation of judicial power over the subject, Mr. Justice Brewer said, on page 397:

"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.

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"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.”

And again, on page 400:

"As we have seen, it is not the function of the courts to establish a schedule of rates. It is not, therefore, within our power to prepare a new schedule or rearrange this. Our inquiry is limited to the effect of the tariff as a whole, including therein the rates prescribed for all the several classes of goods, and the decree must either condemn or sustain this act of quasi legislation."

Mr. Justice Brewer, in the case of the Interstate Commerce Commission v. Cincinnati, New Orleans and Teras Pacific Railway Company (supra), said, on page 499:

"It is one thing to inquire whether the rates which have been charged and collected are reasonable-that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future that is a legislative act.” Again, on page 505:

"The power to prescribe a tariff of rates for carriage by a common carrier is a legislative and not an administrative or judicial function."

Assuming, then, that the rate-making power is a legisla tive function and not a judicial function, it follows necessarily that, under our scheme of government, Congress has not the right to vest it in the courts either by conferring original or appellate jurisdiction over the subject. Under the Constitution the separation of the legislative, executive, and judicial power is complete, with some exceptions not relevant to this discussion. Dispute has sometimes arisen as to whether some particular function is legislative or judicial. But wherever Congress has conferred any function clearly not judicial in its nature (and the rate-making power is such) upon the courts, the courts have declined to accept it, have declared the law which made the grant of power to them unconstitutional, and the exercise of the power therefore unlawful. (Hayburn's Case, 2 Dallas, 409; United States v. Ferreira, 13 Howard, 40; United States v. Yale Todd, 13 Howard, 52 (note); Gordon v. United States, 117 U. S., 697; Interstate Commerce Commission v. Brimson, 154 U. S., 447; dissenting opinion, 155 U. S., 1.)