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it enforces the executive power of investigation and prosecution. As a quasi-judicial body it exercises the judicial function of determining the reasonableness of existing rates and of suspending proposed increases of rate pending investigation, and also of declaring the existence of undue discrimination or preference, entitling the complainant to reparation; and its findings in awards of damages for reparation are given prima facie weight in any judicial proceeding to enforce the same. It also exercises what has been repeatedly adjudged to be essentially a legislative power in fixing a maximum of rates for the future.1

This department of administration is in effect a distinct department of government recognized as developed ex necessitate from the complexity of the functions of modern government in regulating the details of commercial intercourse. We are thus compelled to revise our time honored conception of the distribution of the powers of government, as we have not only executive, legislative, and judicial departments, but also the department of administration, distinct from, and yet to a degree exercising the functions, which have been deemed appropriate to each of the others.2

§ 53. The commerce court.-Another important feature of the amendatory acts of 1910, was the organization of a commerce court, composed of five circuit judges, who are given exclusive jurisdiction over cases for the enforcement of orders of

fact as final. There is an appeal upon questions of law by the carriers to the courts, but unless a constitutional guaranty is violated the order of this commission is final, provided, of course, the commission does not overstep the jurisdictional limits placed upon it by the statutes. And as to the shipper this tribunal is his one and only resort against injustice." See also part II, sec. 16 of Interstate Commerce Act, infra.

1 See Maximum Rate Cases, 167 U. S. 505, 42 L. Ed. 255. Also the Virginia Rate Cases, 211 U. S. 210, 53 L. Ed. 150 (1908).

2 There is a blending of the judical legislative and administrative powers in the powers of railroad commissioners in several of the states. The constitutionality of such acts has been sustained both in the state and federal courts. See Express Co. v. Railroad Co., 111 N. C. 463; Burlington, etc. R. Co. v. Dey, 82 Iowa, 312; Chicago, etc. R. Co. v. Jones, 149 Ill. 361; Georgia, etc. R. Co. v. Smith, 70 Ga. 694. See also the Railroad Commission Cases, 116 U. S. 307, 29 L. Ed. 636, and infra, § 106.

the Interstate Commerce Commission other than for the payment of money, and over cases brought to enjoin any order of the Interstate Commerce Commission or the so-called "Expedition Cases" and also mandamus cases under the Interstate Commerce Act. This latter class of cases however was very much reduced in importance by the recent decisions of the supreme court (See Appendix), and the decisions of this commerce court, both as to the interlocutory orders and final judgments are subject to appeal to the supreme court of the United States.

It was at first proposed that the jurisdiction of this court should include the judicial or quasi-judicial jurisdiction which is now exercised by the Interstate Commerce Commission, thus relieving that body of the anomaly of being at the same time an investigator, prosecutor and judge. This plan was abandoned, and the jurisdiction of the court is taken not from the commission, but from the circuit courts of the United States, and whatever relief is afforded by the court will be to the other circuit courts, and not to the commission.1

§ 54 (49). Regulation of bridges and ferries over navigable rivers. The broadened conception of the federal power over interstate commerce in this direct regulation of such commerce is illustrated in the rulings of the supreme court with reference to the building of bridges and establishment of ferries

1 For the early opinion of this court on its jurisdiction under the act as to the parties entitled to appear and holding that the right to resort to the court extended to every one injuriously affected by the order of the commission, see infra, 395; 188 Fed. 221.

As to the distinction made by the commerce court between plant facilities and terminal facilities of railroads for which they are entitled to exact compensation, see infra, § 150.

For the consideration by the commerce court of the interdependence of rates in the determin

ation of reasonableness see infra § 185; 188 Fed. 242. And as to right of railroads to exact demurrage on private cars, see infra, § 255.

President Taft in an address before the American Bar Association (August 31st, 1911) said with reference to the agitation for a separate court of patent appeals, that it had been suggested that the commerce court might find itself without sufficient business to occupy its time, and that the jurisdiction of the proposed court of patent appeals might be vested in that tribunal.

over navigable rivers, as also in the exercise of the legislative power in authorizing improvements, alterations and obstructions in public navigable waters. The power of the state to establish bridges over navigable and tide waters was admitted, subject however to the paramount authority of congress to declare a bridge an obstruction to navigation, the paramount authority of regulating bridges that affect the navigation of the navigable waters of the United States being admittedly in congress. Thus in the case cited the Wheeling bridge constructed across the Ohio river under an act of Virginia had by decree of the supreme court at the suit of the state of Pennsylvania been declared in its then condition an unlawful obstruction of the navigation of the river and in conflict with the acts of congress regulating such navigation, and therefore ordered to be elevated or abated. Congress thereupon passed an act declaring the bridge to be a lawful structure in its then condition and elevation, and this act was sustained as giving full authority to maintain the bridge. The practice thereupon grew up of building bridges by state corporations-where the rivers constituted the boundary of states, securing the concurrent action of both states,-and at the same time obtaining an act of congress that the bridge, when constructed according to its provisions, should be a lawful structure and not an obstruction to navigation.

In 1894 however it was held that congress had full authority to incorporate a bridge company for the construction of a bridge across a navigable river, and sustained the validity of the North River Bridge Company for the construction of a bridge across the Hudson river between the states of New York and New Jersey. The court said that it was not necessary for congress to recognize and approve bridges erected by authority of two states across navigable waters between them, but could, at its discretion, use its sovereign power, directly or through a corporation created for that object, to construct bridges for the accommodation of interstate traffic by land, as it undoubtedly may do to improve the navigation of rivers for

1 Pennsylvania v. Wheeling, etc. Bridge Co., 18 How. 421 (1855), 15 L. Ed. 435.

2 Luxton v. North River Bridge

Co., 153 U. S. 525 (1894), 38 L. Ed. 808.

3 Willamette Bridge Co. V. Hatch, 125 U. S. 1 (1888), 31 L.

the convenience of such traffic by water. In the case of this North River Bridge Company the act made provision for the condemnation of lands, for the construction and maintenance of the bridge and its approaches, and for just compensation to the owners.

In the case of ferries there is no such necessity of securing the sanction of congress, as there is no such obstruction to navigation. But ferries as well as bridges are instrumentalities of interstate commerce when they cross rivers which are the boundaries of states, and as such are exempt from state control.2

In a recent cases the court held that an unconstitutional burden was imposed on interstate commerce by an Illinois statute penalizing the carrying on of a ferry without a license, when applied to the transportation of loaded or unloaded railroad cars across the Mississippi river from the Illinois to the Missouri side. The court said that there was an essential distinction between a ferry in the restricted and legal sense of the term, and the transportation of railroad cars across a boundary river between two states, constituting interstate commerce, and that such transportation could not be subjected to burdens imposed by a state, which were direct burdens upon interstate commerce. In this case the power to grant the license was made discretionary; citizens of Illinois were to be preferred and the licensee could be required to conduct a general ferry business. The court therefore found it unnecessary to consider, whether the broad declarations of the power of the state to regulate ferries over navigable rivers constituting boundaries between states, supported in the earlier cases had not been modified by the rule laid down in the Gloucester Ferry case and the Covington Bridge case.

4

Ed. 629; California v. Pacific Ry. Co., 127 U. S. 1 (1888), 32 L. Ed. 150.

1 Covington & Cincinnati Bridge Co. v. Kentucky, 154 U. S. 204 (1899), 38 L. Ed. 962.

2 Covington, etc. Bridge Co. v. Kentucky, 154 U. S. 204, 1. c. 219, 38 L. Ed. 962 (1899); Gloucester

Ferry Co. v. Pennsylvania, 114 U.
S. 196 (1885), 29 L. Ed. 158.

3 St. Clair County v. Interstate Transfer Co., 192 U. S. 454 (1904), 48 L. Ed. 518.

4 Conway v. Taylor, Executor, 1 Black, 603, 17 L. Ed. 191 (1861); Fanning v. Gregoire, 16 How. 524, 14 L. Ed. 1043 (1853).

§ 55. Regulation of telegraph and telephone companies.The amendment to the Interstate Commerce Act of 1910, extended for the first time the regulation of the act to interstate telegraph and telephone companies. Prior to this it had been recognized in a number of cases that the interstate business of such companies was interstate commerce; and before their inclusion under the Interstate Commerce Act their business was controlled by the rules of common law which are operative upon all interstate commercial transactions, except as they were modified by congressional enactment.

Congress has legislated from time to time in relation to telegraph lines in interstate commerce, but more particularly with reference to the grant of telegraph privileges to the government aided railroads. Thus, in 1862, congress included the right to construct, maintain and operate telegraph lines in its grant of the charters to build Pacific railroads.

Subsequently, in 1866, congress granted to any telegraph company organized under the laws of any state the right to construct, maintain and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military or post roads of the United States which have been or may hereafter be declared such by law, and over, along and across any of the navigable waters of the United States.2

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This act of 1866 was construed by the supreme court as, in effect, amounting to a prohibition of all state monopolies in the telegraph business between the states. The court said that it was a legitimate regulation of commercial intercourse between the states and was proper legislation to carry into execution. the powers of congress over the postal service. The statute

13 Compiled Statutes, p. 3579, title 65.

2 The act also provided for the use of materials from the public lands, reserved to the government priority over other business and further provided for the purchase by the United States for postal, military or other purposes, all the property and effects of companies acting under the act at an ap

praised value to be ascertained by five competent, disinterested persons, two of whom were to be selected by the postmaster general, two by the company interested and one by the four previously selected.

& Pensacola Telegraph Co. V. Western Union Telegraph Co., 96 U. S. 1 (1877), 24 L. Ed. 708, 711.

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