Argument for Appellant. 215 U.S. volved is legislative and an order should not be set aside by the courts unless it violates property rights guaranteed by the Constitution. Maximum Rate Cases, 167 U. S. 479; Reagan v. Farmers' L. & T. Co., 154 U. S. 362; Knoxville v. Water Co., 212 U. S. 1; Willcox v. Consol. Gas Co., 212 U. S. 19; Prentis v. Atlantic Coast Line, 211 U. S. 210; Home Telephone Co. v. Los Angeles, 211 U. S. 265; Honolulu Transit Co. v. Hawaii, 211 U. S. 282. Under the old law the function of the Interstate Commerce Commission was in its nature judicial. It passed upon the reasonableness of existing rates and the courts reviewed its conclusions just as they review those of an inferior judicial tribunal, treating the commission as a referee of the Circuit Courts of the United States. See 37 Fed. Rep. 614; New Orleans & Texas Pacific Ry. v. The Interstate Commerce Commission, 162 U. S. 184; Maximum Rate Cases, 167 U. S. 479. Under the act as now amended the commission fixes the rate and the courts have the same authority to review that they would if the rate had been fixed by Congress itself. The so-called "Court Review" amendment, which is embodied in the Hepburn Act, is merely declaratory. The only thing added is the venue and the express authorization of suits against the commission as a representative of the Government. It is not the reasonableness of the rate which is now before the court; that question is submitted exclusively to the commission. The rate fixed by the commission may in the judgment of the court be unreasonable and yet it will not be declared unlawful unless it is so unreasonable as to constitute a confiscation of property. Knoxville v. Water Co., 212 U. S. 1; San Diego Land & Town Co. v. National City, 174 U. S. 739, 754. The commission did not err in considering the terminal charge and the through rates together. That was settled in the C., B. & Q. Case, 186 U. S. 320, and there has been no change since then. The sole result of the terminal charge is to increase the cost to the shipper for the same service. Nor did the Hepburn Act since passed alter the situation. In neither 215 U.S. Argument for Appellant. case has there been an obligation to make a terminal charge. The railroads have created the Union Stock Yards and made it their depot and the only available place for delivery of live stock in Chicago. It is the greatest live stock market in America and the other depots they have established are paper depots and no real terminal service exists. It is a pretense for the terminal charge. Covington Stock Yards v. Keith, 139 U. S. 128. No charge above one dollar per car is justifiable. Putting the two dollars terminal charge on at Chicago and not at other points made an unjust discrimination against Chicago and is not justifiable. The order does not violate constitutional rights even if one dollar is less than the cost of terminal service. The rule adopted below is that where railroad companies publish a terminal charge for terminal service, and the commission is called upon to declare whether or not it is reasonable, the commission must, as a matter of law, determine this question solely by the cost of the terminal service, independent of the fact that the through rate already includes compensation for the terminal service and independent of the fact that the transaction as a whole is profitable to the roads. This is not sustained by reason or authority. To uphold it is to say that the railroads can charge twice for the same service, and the commission is without power to strike off the charge which is last put on. Even if the railroads had in this case, actually and in good faith, separated the terminal service from the through service, and the terminal charge from the through charge, the commission could reduce the terminal charge if they found that the through charge was high enough to include it. But the railroads have not separated these two services and charges. They cannot separate the services because a shipment of live stock from the point of origin to the Union Stock Yards is one transaction and inseparable. If a carrier adds a charge for a pretended separate service, which is already included in another service for which he is Argument for Appellee. 215 U.S. amply paid, the commission may reduce the extra charge, even to a point below the cost of the pretended separate service. Southern Railroad Co. v. The St. Louis Hay & Grain Co., 214 U. S. 297, distinguished. The cost of a particular service is not a proper test of the reasonableness of the charge for it when the service performed is part of a larger transaction. Minn. & St. Paul R. R. v. Minnesota, 186 U. S. 257, 267; St. Louis & S. F. R. R. Co. v. Gill, 156 U. S. 649. See also Atlantic Coast Line R. R. Co. v. N. C. Corp. Com., 260 U. S. 1; Cov. & Lex. Turnpike Co. v. Sanford, 164 U. S. 596; A. & V. R. R. Co. v. Railroad Com. of Miss., 203 U. S. 496; Railroad Co. v. Well & Neville, 96 Texas, 408. In the present case, even if one dollar per car be below the cost of the particular service, the railroads cannot complain, since the whole charge for the whole service is admittedly profitable. It is not shown that the commission's allowed charge of one dollar per car is less than cost of terminal service. The commission's order applies only to whole transaction from point of origin and as so considered the charge is not below cost. Every intendment of law and fact should avail to support the order of the commission. When questions of fact are submitted to executive or administrative officers of the Government their conclusions are final. When questions so submitted involve both fact and law the conclusion will not ordinarily be disturbed by the courts. Even when a question of law only is submitted to other departments the courts will make every presumption in favor of the interpretation reached. Bates & Guild Co. v. Payne, 194 U. S. 106; Marquez v. Frisbie, 101 U. S. 473. Mr. William D. McHugh and Mr. Walker D. Hines for appellee: The railroad companies have divided their said rates and 215 U. S. Argument for Appellee. have made a distinct charge for transportation from the points of shipment to Chicago, and a separate terminal charge for delivery to the stock yards, a point beyond the lines of the respective carriers. The separate terminal charge of two dollars per car made by the railroad companies for the delivery by them of live stock to the stock yards, a point beyond the lines of their respective railroads, is not excessive since it is less than the actual cost to the railroads for the performance of such service. Each appellee had the right to divide the charge for transportation so as to have one rate from point of shipment to a point on its tracks in Chicago, and a separate charge thence to the stock yards. Walker v. Keenan, 73 Fed. Rep. 755; S. C., 7 I. C. C. Rep. 548; § 6 of the Act to Regulate Commerce; Interstate Comm. Comm. v. C., B. & Q. R. R. Co., 186 U. S. 320, 335. The commission's order is contrary to the Constitution. Amendment V, and see as to right of carrier to compensation for additional service, So. Ry. Co. v. St. Louis Hay Co., U. S. 297, 301. 214 There is no authority for, nor do cases cited by appellant sustain proposition that in order to set aside a rate prescribed by the commission, the carrier must show confiscation as to all its business. The commission's order was made under clear error of law. The courts have power to set aside any order of the commission not conforming to the statute. As to the power conferred on the commission by the statute, see Vol. 2, Hearings Before Senate Interstate Commerce Committee, pp. 1662-1674. The power of the court to review on mixed questions of law and fact, or of law alone, may be exercised without regard as to whether a constitutional right has been violated. Judicial intervention is expressly contemplated by the act itself and in this case is especially appropriate because the regulation is of vested rights and not of matters wholly under power of Government. The right of owners of railroads to adequate protection exists independently of consent of the Government. MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court. The controversy as to this terminal charge has been of long duration. A history of it antecedent to the present litigation is to be found in Interstate Commerce Commission v. C., B. & Q. R. R. Company, 186 U. S. 320. It is well to understand the precise question which is presented in this case. That question is the validity of the terminal charge of two dollars per car. The report of the commission opens with this statement: "The subject of this complaint is the so-called terminal charge of $2 per car imposed by the defendants for the delivery of carloads of live stock at the Union Stock Yards in Chicago," and its order was in terms that the railroad companies be "required to cease and desist on or before the 1st day of February, 1908, from exacting for the delivery of live stock at the Union Stock Yards, in Chicago, Ill., with respect to shipments of live stock transported by them from points outside of that State, their present terminal charge of $2 per car. "It is further ordered that said defendants be, and they are hereby notified and required to establish and put in force on or before the 1st day of February, 1908, and apply thereafter during a period of not less than two years, for the delivery of live stock at the Union Stock Yards, in said Chicago, with respect to shipments of live stock transported by them from points outside the State of Illinois, a terminal charge which shall not exceed $1 per car, if any terminal charge is maintained by them." The sixth section of the act known as the "Hepburn Act,' (an act to amend the Interstate Commerce Act, passed on June 29, 1906, c. 3591, 34 Stat. 584), requires carriers to file with the commission and print and keep open to inspection |