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THE GREEN BAG

tion, for Congress cannot regulate rates except as a regulation of interstate commerce. It cannot, moreover, prefer the parts of one state over those of another, or deprive a company of liberty or property without due process of law." "4. Neither Congress, nor a commission created by Congress, can fix the rates of a railway company solely on the basis of the value or of the cost of its property — rates can be fixed only on the basis of allowing the carrier to charge in each case reasonable com pensation for the services rendered. In de termining this the aggregate profits of the carrier undoubtedly may be considered; but there are also many other elements that must be taken into account." "There are several reasons why the rates of a railway company cannot be fixed by Con gress, or by a commission created by Congress, on the basis of the cost of the property of the company, or upon the basis of its income." "(a) It is an axiom of railroad rate-making that rates between the same points must be alike on all competing lines, because if they are not alike, the business will go to that line which makes the lowest rate. Therefore, in case two competing lines would not be equally prosperous if both should charge the same rates, it would be impossible to fix their rates in such manner as to yield to each the same relative net return upon the cost of the prop erty. If the rates charged by the more pros perous company upon competitive business should be reduced so as to cut down its net income, the less prosperous company would be compelled either to reduce its rates equally or to lose all the competitive business, and in either event might be ruined." "(6) It would be impossible to fix the rates of a railway company on the basis of the net income upon its entire property, so long as the regulation of rates for transportation wholly within a state remains subject to state control and not to the control of Congress." "(c) The owner cannot be deprived of the fruits of his skill, industry, or thrift." "5. Railway rates, like the charges in any other business, are determined largely by con siderations of business policy and cannot be fixed by the application of definite principles or hard and fast rules."

"In nearly every instance there is a wide range within which any rate would be just and reasonable, and it is wholly a question of business policy at what point the rate shall be fixed within that range." "It would be utterly impracticable for a leg islature, or a commission, to exercise intelli gently the wide business discretion necessary to adjust railway rates to meet the varying conditions of trade. It would seem also that an act of Congress taking away from a railway company its business discretion in the adjust ment of its rates, would be unconstitutional, because depriving the company of its liberty and property without due process' of law. However, the decisions of the Supreme Court indicate that the legislature of a state, or a commission created by a state legislature, can, to some extent, substitute its own business judgment for that of the railway companies in fixing their rates." "6. To fix the rates to be charged by a carrier in the future is a legislative, not a judicial act." "7. Congress cannot confer judicial powers upon the Interstate Commerce Commission. It can confer judicial powers only upon courts established in the manner prescribed by the Constitution." "8. Congress can confer upon a commission power to fix, subject to review by the courts, the maximum rates that would not be unreas onably high and extortionate as against ship pers, but it is doubtful whether or not Congress can vest in a commission the purely discre tionary power to fix rates as it sees fit. Congress can prescribe general rules for the regulation of the charges of railway companies, the function of a commission being 'merely administrative in carrying out the declared will of Congress to prohibit excessive or un justly discriminatory rates.'" "9. Congress cannot vest in the courts power to fix future rates, or to consider and pass upon the wisdom or policy of the com mission in prescribing a particular rate which is neither confiscatory nor unreasonably high. It is well settled that Congress cannot consti tutionally require the courts to perform any duties that are not of a judicial character. It cannot require the courts, directly or indi rectly, to perform duties of an administrative