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laws of the United States shall be the supreme law of the land.
II. So all private contracts, between carriers and individuals, relating to the transportation of
persons or property, which are inconsistent with the terms of this Act, are likewise vitiated , and rendered nugatory.
III. And all traffic, freight, or other agreements between common carriers subject to this law, relating to the transportation of passengers or freight, are likewise vitiated.
IV. The question will accordingly occur in this connection, whether the Act in this respect is not contrary to the Fifth Amendment to the Constitution of the United States, which provides that no person shall be deprived of his property without due process of law, “nor shall private property be taken for public use without just compensation.”
Long- and Short-" Haul” Provision. Third: The fourth section of the Act deals with the “short-haul” subject, and provides that it shall be unlawful for any common carrier subject to the provisions of this Act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of
like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge and receive as great compensation for a shorter as for a longer distance: provided, however, that upon application to the Commission appointed under the provisions of this Act, such common carrier may, in special cases, after investigation by the Commission, be authorized to charge LESS for a longer than for shorter distances for the transportation of passengers or property ; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of the Act. (Sec. 4.)
I. This section creates a very unusual precedent in American legislation, for the principle that underlies the making of all laws, especially of a penal character, viz., that they are fixed and immutable rules for the government of the subjects of a country, is here departed from, and the law is relaxed at the will of the Commission named in the Act.
Until the Commission acts, however, it is a. misdemeanor for a common carrier to charge a greater compensation for a shorter than for a longer distance. (See Sec. 10.)
The Commission is clothed with the extraordinary power of rendering nugatory this penal act, by prescribing the extent to which a common carrier may be relieved from its operation. Whether the Congress of the United States has the right to delegate its powers under the Constitution, in the respect here adverted to—to suspend the operation of a law-is one of the questions which the courts must decide.
It is very evident that Congress was firmly convinced that, in many instances, the common carrier was, and would be, justified in charging a greater or as great a compensation for a shorter than for a longer haul, or the unusual power of rendering nugatory the effects and penalties of the Act would not have been conferred
upon this quasi-judicial body—the InterState Commerce Commission.
II. The exact meaning and effect of this fourth section were conceded to be ambiguous and doubtful in the debates in Congress when this law was discussed. (See debates of Congress, January, 1887.) It will, accordingly, not be regarded as remarkable, if the courts should find it impossible to interpret language which apparently presented no definite meaning to the minds of the legislators who framed and passed the Act.
III. “ It shall be unlawful for any common carrier
to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of like kind of property under substantially similar circumstances and conditions for a shorter than for a longer distance
but this shall not be construed as authorizing any common carrier
to charge and receive as great compensation for a shorter as for a longer distance
There are two distinct inhibitions in this section : first, the carrier is prohibited from charging a GREATER compensation for a shorter than for a longer haul; and, second, then the Act goes on to declare that it shall not be construed as authorizing the carrier to charge “ AS GREAT compensation for a shorter as for a longer distance.”
The Act says to the carrier : “You shall not charge a greater compensation for a shorter than for a longer haul under substantially similar circumstances, etc.—nay, you shall not even charge as great a compensation for a shorter as for a longer distance—whether the same circumstances exist or not."
The meaning is badly expressed, but it seems to us that this is the only interpretation that can be put upon this branch of the section.
IV. Considered together, the language of the entire section presents the same difficulty; and it may absolutely fail for indefiniteness or want of meaning. “It shall be unlawful to charge
any greater compensation in the aggregate for
transportation under substantially similar circumstances and conditions for a shorter than for a longer distance."
This is a prohibition to the carrier that he shall not charge a greater compensation in the aggregate for a shorter haul made under substantially similar circumstances and conditions. Here is a qualification. Suppose the qualification does not exist ? Suppose the “shorter haul” to be made under substantially dis-similar circumstances and conditions Can the carrier charge or receive a greater compensation for the "shorter haul"? It would seem