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(6) Assuming, however, that Congress may itself exercise powers similar to those created by the Inter-State Commerce Act, another grave question is, whether that body can delegate its powers to a tribunal such as is created by this Act. Has Congress the right to divest itself of the power which the Constitution has placed in its hands, and to entrust the regulation of commerce to a Commission ? It will be seen that Congress, by this Act, does not undertake specifically to fix the rates or charges of common carriers, or to regulate the method or system by which they shall conduct their business. All of these things are practically left in the hands of the Commission, and it lies with that body, exclusively, to say what shall and what shall not constitute an infraction of the law.

Specific rules for the government of the business and conduct of carriers are not laid down by the Act, but it lies with the Commission to declare what the law shall be in any given case. The power of the Commission is arbitrary, unlimited, and unchecked; and while it cannot be assumed that it will be used detrimentally to the interests of the public, or of the common carriers, it is doubtful whether the people of the United States, in adopting the Constitution, ever intended that such an unbounded supervision over the commercial interests of the country should ever be placed in the hands of a tribunal such as the Inter-State Commerce Commission.

An application of these suggestions to the various provisions of this Act, will be sufficient to show that Congress has practically delegated its whole power in the premises to the Commission.

While Congress has the right, under the Constitution of the United States, to “constitute tribunals inferior to the Supreme Court," the jurisdiction of those tribunals must be confined to such subjects and matters of jurisdiction as are specified in the Constitution. The people of the United States have defined the judicial power of the government, and under Section 2 of Article III. of the Constitution it is declared that :

“1. The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between a State, or the citizens thereof, and foreign states, citizens, or subjects.

2. In all cases affecting ambassadors, or other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make."

These suggestions are thrown out upon a possible contention that the Inter-State Commerce Commission is a judicial body, and within the authority of Congress to create under its power to establish inferior courts.

(c) The next proposition is whether some of the provisions of the Inter-State Commerce Act do not conflict with the Seventh Amendment to the Constitution of the United States, which provides that: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law;"

It is undoubtedly true that many of the controversies arising between a shipper and a common carrier, which are to be decided by the Inter-State Commerce Commission, were, before the passage of that Act, the subject of common-law proceeding, and of investigation by a petit jury. For instånce, actions against a common carrier for violation of contract, or for breach of duty, in the transportation of passengers or property, were, before the Inter-State Commerce Act, the subjects of common-law actions, in which juries were regularly empanelled. All of these matters are now cognizable by the Commission, at the instance, not only of persons who are actually aggrieved, but of any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization, that chooses to take the initiative—whether aggrieved or not. (Sec. 13 )

No provision is made in the Act for trial by jury in any case, and this right, instead of being preserved, as demanded by the Constitution, seems to be utterly destroyed and set at naught, by vesting jurisdiction in the Commission.

(d) Upon the question of costs the Act is entirely one-sided. By the eighth section the common carrier is made liable to the person injured for the full amount of damages sustained, “ together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs of the case.It is thus made the duty of the court to award an attorney's fee in every case in which damages are recovered, no matter how trivial the controversy may be. And there is no limit whatever to the amount which the court may grant. Each court is the sole judge of what is “reasonable,” and there is no appeal from its decision.

On the other hand, there is no provision made for the payment of costs or attorney's fees to the common carrier in case it is successful. No matter how groundless the complaint; no matter how utterly devoid of merit the

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