EDITORIAL DEPARTMENT

or of a quasi-legislative character. It follows, therefore, that Congress has no constitutional power to require the courts to exercise the legislative or quasi-legislative power of a com mission in fixing the rates to be charged by a railway company. If Congress cannot give to the courts original power to prescribe what rates the railway carriers shall charge, it can not require them to reconsider the whole case as it was considered by the commission, and to pass upon the wisdom and policy of the action of the commission in fixing a rate. The courts undoubtedly can pass upon the question whether a rate is unreasonably high, and there fore unlawful, or whether it is in violation of a legal order made by the commission. They can also pass upon the question whether the action of the commission in fixing a rate is constitutional, that is to say, whether it would in effect amount to confiscation of the prop erty of the carrier. No constitutional statute can be drawn that will give to the courts power to hear the question de novo, as in case of an appeal of a cause in equity, and to reconsider the wisdom and policy of the commission in fixing any particular rate between the two extremes of legality referred to above. No statute would be necessary to give the railway companies power to resort to the courts, in order to restrain confiscatory action of the commission, and no additional protection through the courts can be conferred by Con gress. It follows, therefore, that a grant of power to a commission to fix rates, in its dis cretion, would vest in it practically autocratic power, subject to no control by the executive or by the courts, to dictate the policy of the railways of the United States, and autocratic power to make or unmake the prosperity of different sections of the country so far as this would depend upon the rates of transporta tion." "10. A grant of discretionary power to fix railway rates within the limits of legality, as heretofore defined, would necessarily include power, through an adjustment of rates, to affect the relative rates of different localities, and to aid one locality in the country at the expense of other localities by establishing a differential. Stated baldly, this would mean that Congress, or a commission, can take away from a particular port its natural advantages

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by granting a law-made advantage to other ports by means of a preferential regulation of commerce. The Constitution provides that no preference shall be given by any regulation of commerce to the ports of one state over those of another. To hold that Congress or a commission can by law give to the various ports such preferences as, in the judgment of Congress, or a commission, will equalize their natural advantages, would wholly destroy the value of the constitutional prohibition." CONSTITUTIONAL LAW (Police Power. Contracts) IN the June Michigan Law Review (V. iii, p. 617) is published an article entitled "Freedom of Contract, " by Jerome C. Knowlton, which is interesting in connection with the article by Professor Freund in this issue. The author begins with a discussion of the definition of the word "liberty," as used in the fourteenth amendment, which he applies first to cases of contracts with municipalities, then to contracts between individuals. In his consideration of the true scope of the police power as affecting these, he agrees in most respects with the views of Professor Freund. CONSTITUTIONAL LAW (Taxing Federal Agencies. Australia) ANOTHER instance of the force as precedents in Australia of our constitutional decisions is discussed in the May Harvard Law Review (V. xviii, p. 559) by H. B. Biggins, K.C., late Attorney-general for Australia, in an article entitled "McCulloch v. Maryland in Australia." It appears that our doctrine that federal agents are not taxable by the states since "the power to tax is the power to destroy," has been held to be implied from the nature of the Australian Federal Constitution in a decision that a tax on salaries of federal officers is in valid, and that this distinction of federal from state officers has caused surprise and indigna tion. He criticises Marshall's method of free in terpretation as statesmanlike rather than lawyerlike, and due really to the difficulty of amendment of our Constitution. He also sug gests that it was unnecessary, since Congress must have had power to protect its agencies by express legislation. Admitting the cor