662

THE GREEN BAG

force in our economic life of to-day. These great artificial beings, the creations of state laws, have outrun the control of their creators. It is inevitable that the nation should take hold where state control has broken down. . . . With the destruction of the states as indus trial entities will follow, in the fulness of time, their destruction as political entities. Histor ically, federalism is like the grave: it takes but it does not give." The refusal of the governor of Indiana to surrender a fugitive on demand of the gov ernor of Kentucky and the nullification of the 1 3th Amendment by the South and nu merous supposed "extra-legal" acts of the executive illustrate the second mode of devel opment. The author approves of this ten dency. CONSTITUTIONAL LAW (Jurisdiction. Aus tralia). "The Judicial Power and Interstate Claims," by P. McM. Glynn, Commonwealth Laiv Review (V. ii, p. 241). CONSTITUTIONAL LAW (Regulation of Rates). In the October North American Re view ( . 181, p. 481) Richard Olney discusses . "Some Legal Aspects of Railroad Rate-making by Congress." He first discusses the effect on the power to regulate commerce of the pro hibition of giving preference to the ports of one state over those of another. This would constitute an insuperable limitation upon the power of Congress to authorize the equaliza tion of railroad rates between different ports, when the effect of such equalization would be to give to one port commercial advantages which it would not otherwise obtain. The manifest purpose of this constitutional limi tation was to permit national commerce to flow freely in its natural channels by making it impossible for the national government through its interference to divert it from one port to another. The railway systems of the country have adopted for their own -purposes the plan of equalization, but these, as private corporations, are at liberty to act in such manner as they please. The second section of the argument turns on the question: Can Congress delegate to a commission the power which the Constitution gives it to regulate commerce? This, he be lieves, Congress can do only to the extent of having a commission administer a system of

legal regulations which Congress has enacted. Congress might pass a law that the rate of passenger transportation throughout the coun try should be two cents per mile and that freight transportation should be one cent per ton per mile, and then turn over to a com mission the duty of seeing that this law was observed by the interested railroad companies. But to have the commission itself determine what the rates should be would be an unwar ranted extension of legislative authority, which, by the Constitution, is confined to Con gress. To lay down as a standard of action that the rates or duties are to be reasonable would not be a sufficient guide for adminis trative action, for it has been repeatedly held that there must be some substantive provision of ' law to be administered and carried into effect. Finally, has Congress the right to dictate rates to the carriers of the country, or, as is frequently urged, acquire control through own ership of the railroads themselves. To pre scribe the price which shall be charged for a service is the next thing to taking possession of the property of one performing the service. If Congress, either directly or through other instrumentalities, made railroad rates covering all interstate business, then it would inevitably follow that the various states would make the rates at which business within their respective areas was to be carried on. We should have two more or less competitive boards of control, each aiming to secure special benefits at the expense of the other, and anything, like skil ful, just, reasonable or stable-rate making would become impossible. The logic of the situation would be such as to force government ownership. This, how ever, would be ownership by the national gov ernment. Its power to regulate does not imply that it has itself the right to engage in business, and if it can take an immediate part in trans portation as one part of commerce, might it not also buy and sell products? Such action he holds to be unconstitutional, and is of the opinion that if this question of authority had been submitted to the United States SupremeCourt at any time before a quarter of a cen tury ago it would in all probability have given a decision adverse to the jurisdiction of the general government.