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without discrimination. After a hearing as to a violation of this requirement an order was made by the commission imposing a penalty of $1,000.00. It was alleged that the imposition of this penalty even though with a hearing before the commission, operated to unduly restrict the freedom of resort to the courts. The Court says: “—the right—to be secured in due process of law-is merely nominal and illusory if the party to be affected can appeal to the courts only at the risk of having to pay penalties so great that it is better to yield to orders of uncertain legality rather than to ask for the protection."

Again the point of decision assumed to be the gist of the Ben Avon case-viz., that in rate questions the court must put its judgment against that of the legislative body on the point of the sufficiency of the valuation—is not even remotely hinted at. All that is declared is that an administrative order requiring a railway to refrain from discriminating between connecting carriers in the matter of cash or credit payments, even though made after a commission hearing, is not due process where the procedure for the enforcement of the order is of such a nature as to discourage resort to the courts.

The next case relied on is Missouri v. C. B. & Q. Ry. Co.15 The decision in this case is based on a question of procedure as to the effect of the dismissal without prejudice of a bill in equity. But Chief Justice White takes occasion to state certain principles relating to rate questions which he regards as fundamental. He says:

In exerting the rate making power the rates cannot be made so low as to be confiscatory without violating the Constitution—that from the act of fixing railroad rates by law there resulted the duty to provide an opportunity for testing their repugnancy as a unit to the Constitution in case there was a charge that they were confiscatory.

It will be remembered that in the Ben Avon case the

15241 U. S. 533, 538, 60 L. ed. 1148, 1154.

startling point was not that there should be a hearing on the question of constitutionality, but that on the question of valuation the judgment of the court should be weighed against that of the legislative body, a proposition which finds no necessary support in the dictum of Justice White in the case cited.

The fourth case relied on was Oklahoma Operating Co. v. Love.16 In that case as the remedies in the state courts had been construed by the State Supreme Court it had appeared "that the only judicial review of an order fixing rates possible under the laws of the state was that arising in proceedings to punish for contempt. The Constitution endows the Commission with the powers of a court to enforce its orders by such proceedings. By boldly violating an order a party against whom it was directed may provoke a complaint and if the complaint results in a citation-he may justify before the commission by showing that the order violated was invalid, unjust, or unreasonable. If he fails to satisfy the Commission that it erred in this respect, a judicial review is opened to him by way of appeal on the whole record to the Supreme Court. But the penalties which may possibly be imposed, if he pursues this course without success, are such as might well deter even the boldest and the most confident----Obviously a judicial review best by such deterrents does not satisfy the constitutional requirements, even if otherwise adequate, and therefore the provisions of the acts relating to the enforcement of the rates by penalties are unconstitutional without regard to the question of the insufficiency of those rates."

Here again we fail to find any support for the statement of the Ben Avon case that any provision for the enforcement of a rate is invalid unless a court is given the power to determine the question of confiscation "upon its independent judgment as to both law and facts” including, and here indeed chiefly, the adequacy of the valuation.

The Supreme Court had previously in the Chicago, M. &

16252 U. S. 331, 64 L. ed. 596.

St. P. Ry. Co. v. Minnesota (ex rel. R. R. and Ware House Com.),17 used language which might be given a variety of meaning. There the state statutes in regard to fixing rates as construed by the highest court of the State made the rates of the commission not merely prima facie reasonable but final and conclusive and neither contemplated nor allowed any issue to be made nor inquiry had as to their reasonableness in fact beyond such legislative investigation as the commission might make in fixing the rate. This statute as construed was held void under the Fourteenth Amendment as it allowed no inquiry judicial in nature at any point after the rate was fixed18 and so does not touch the situation in the Ben Avon case.

On the other hand, in the San Diego case the Supreme Court of the United States says that “the courts cannot, after the Board has fully and fairly investigated and acted, by fixing what it believes to be reasonable rates, step in and say its action shall be nullified because the courts in a similar investigation have come to a different conclusion as to the reasonableness of the rate fixed. There must be actual fraud in fixing the rates or they must be so palpably and grossly unreasonable and unjust as to amount to the same thing.” Thus none of the cases cited to sustain the decision of the Supreme Court in the Ben Avon case raised the point on which the decision in that case rested, and the case stands alone as introducing the requirement that a court must weigh its judgment against the commission in a matter of legislative discretion.

Another point of uncertainty as to judicial review of administrative decisions is found in the vagueness of court opinions as to what will be considered a judicial review or as to what constitutes a “court” for the purposes of due process. Time forbids my going into this matter but some day we shall be obliged to blaze some trails through the wilderness of tribunals that have grown up like mushrooms in the last generation, and subject them to some

17134 U. S. 418, 33 L. ed. 970 (1890).

18 For this construction see San Diego Land & Town Co. v. National City, 174 U. S. 739, 43 L. ed., 1154, 1158.

process of analysis and classification. What makes a court for the purpose of giving a hearing that will be due process and whose determination can be res adjudicata in a matter involving property and personal rights in cases where our constitutions do not make a jury trial necessary? Courts say that the test of a court is whether it can in a controversy or case make a binding decision which is res adjudicata for the subject involved; and again they say that nothing is res adjudicata unless it is the decision of a court. Many states permit the mingling of functions. The Supreme Court of Oklahoma is, under Section 20 of Article 9 of our Constitution, the supreme legislative body as to transportation and transmission company rates and, if a statute passed in 1919 is valid19, for all rate regulation of all utilities, yet it is no less a court because of its legislative functions.

Is there then any test of what constitutes a court except the fiat of the legislature or constituional convention of a state? The United States Constitution does not require a state to separate judicial from other state functions, but it probably does require a tribunal fair, unbiased, and reasonably fitted to pass on the matter submitted to it in order that its decisions may be due process but does the affixing of the name court add anything to its potentialities? Modern conditions are so complex that the typical courts of our fathers cannot do all the work and do it well; too many diverse questions come up and need too many diverse talents and treatments for their solution. Even many of our private rights are undergoing modification or changing, because of new social and industrial and economic conditions which change public needs. We are going, therefore, to have in the future an increasing diversity of tribunals specially fitted to meet special needs and special situations often involving matters of private right. Must we let our court for the trial of jury cases at law pass on all the adjudications of these bodies for all future time? The Ben Avon case seems to require this even as to legislative acts.

The whole thing may be like the development of equity in

19Session Laws, 1919, Chapter 52, section 3, page 87.

a former century—something new and permanent in the process of being added to our procedure—a recognition that courts as now constituted cannot do it all, just as commission legislation grows out of the fact that legislatures as now constituted cannot do all the legislating or do it well. So we must develop a set of new tribunals suited to new needs and give them a chance.

Courts, as we have seen, have not always been deciding law or mooted fact in the constitutional cases rather they have been balancing interests and adjusting legislative policies. Their opportunity for this lies, as we have said, in the hazy notions prevalent as to what they are doing and their excuse, that inadequate agencies are really doing harm to private interests and to public utility interests, and this is doubtless true.

It has been partly because of legislative inefficiency and partly because of the vagueness of the concept of due process that the courts have premitted themselves or have been induced to assume such a control of legislative policies in the past. Lochner v. N. Y.20 is a good instance of the court's going astray on the assumption that only things to which they were accustomed can be due process even when those things are economic or social policies. But, as Justice Holmes said in his dissent in that case: “The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

It was this same species of court interference with legislative policies which brought out the storm of protest in the first decade of this century culminating in President Roosevelt's proposal to review court action by a popular referendum. And his proposal was one to which the courts could not logically object-they had undertaken to supervise the political or policy determining acts of the legislature_the constitutionally appointed body for handling questions of policy, they had officiously entered the political field, why not make them subject to the most intimate political check since they were already beyond bounds? The more recent

201905, 198 U. S. 45, 75.

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