and left to the various States the regulation of the subjectmatter within their borders, as had been the practice for many years.

It remains to inquire whether it is plain that Congress would have enacted the legislation had the act been limited to the regulation of the liability to employés engaged in commerce within the District of Columbia and the Territories. If we are satisfied that it would not, or that the matter is in such doubt that we are unable to say what Congress would have done omitting the unconstitutional feature, then the statute must fall. Illinois Central R. R. Co. v. McKendree, 203 U. S. 514; Employers' Liability Cases, 207 U. S. supra.

When we consider the purpose of Congress to regulate the liability of employer to employé, and its evident intention to change certain rules of the common law which theretofore prevailed as to the responsibility for negligence in the conduct of the business of transportation, we think that it is apparent that had Congress not undertaken to deal with this relation in the States where it had been regulated by local law, it would have dealt with the subject and enacted the curative provisions of the law applicable to the District of Columbia and the Territories over which its plenary power gave it the undoubted right to pass a controlling law, and to make uniform regulations governing the subject.

Bearing in mind the reluctance with which this court interferes with the action of a coördinate branch of the Government, and its duty, no less than its disposition, to sustain the enactments of the national legislature, except in clear cases of invalidity, we reach the conclusion that in the aspect of the act now under consideration the Congress proceeded within its constitutional power, and with the intention to regulate the matter in the District and Territories, irrespective of the interstate commerce feature of the act.

While not binding as authority in this court, we may note that the act, so far as it relates to the District of Columbia, VOL. CCXV-7

was sustained in a well-considered opinion by the Court of Appeals of the District of Columbia. Hyde v. Southern Ry. Co., 31 App. D. C. 466.

The judgment of the Supreme Court of Texas is

Affirmed.

INTERSTATE COMMERCE COMMISSION v. STICKNEY AND OTHERS, RECEIVERS OF THE CHICAGO GREAT WESTERN RAILWAY COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.

No. 251. Argued October 12, 1909.-Decided November 29, 1909.

A carrier may charge and receive compensation for services that it may render, or procure to be rendered, off its own line, or outside of the mere transportation thereover.

Where the terminal charge is reasonable it cannot be condemned, or the carrier charging it required to change it because prior charges of connecting carriers make the total rate unreasonable.

In determining whether the charge of a terminal company is or is not reasonable the fact that connecting carriers own the stock of the terminal company is immaterial, nor does that fact make the lines of the terminal company part of the lines or property of such connecting carriers.

The inquiry authorized by § 15 of the Hepburn Act of June 29, 1906, c. 3591, 34 Stat. 584, relates to all charges made by the carrier; and, on such an inquiry, the carrier is entitled to have a finding that a particular charge is unreasonable before he is required to change it. Where the charge of a terminal company is in itself reasonable the wrong of a shipper by excessive aggregate charges should be corrected by proceedings against the connecting carrier guilty of the wrong.

The convenience of the commission or the court is not the measure of justice, and will not justify striking down a terminal charge when the real overcharge is the fault of a prior carrier.

164 Fed. Rep. 638, affirmed.

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Argument for Appellant.

ON December 10, 1907, the Interstate Commerce Commission entered an order requiring certain railroads running into Chicago to cease and desist from making a terminal charge of two dollars per car for the transportation of live stock beyond the tracks of said railroads in Chicago, and for delivery thereof at the Union Stock Yards, and requiring them to establish and put in force for said services a charge of one dollar per car. Compliance with this order was postponed by the commission until May 15, 1908. On May 7, 1908, the appellees filed this bill in the Circuit Court of the United States for the District of Minnesota, to restrain the enforcement of said order, averring that the actual cost to them for such terminal services exceeded in each instance the sum of two dollars per car, and that the companies were making delivery at a charge less than such actual cost; that therefore the reduction of the charge by the commission to one dollar per car was unreasonable, oppressive and unlawful. A hearing was had before three judges of the Eighth Circuit and a restraining order entered as prayed for by the railroad companies, from which order an appeal was taken to this court.

Mr. Wade H. Ellis, Assistant to the Attorney General, and Mr. S. H. Cowan, special attorney, for the appellant:

For the history of this controversy before the courts and the commission see Keenan v. Atchison & C. R. R. Co., 64 Fed. Rep. 992; Walker v. Keenan, 73 Fed. Rep. 755; Reports, 7 I. C. C. 513, and 555a; Int. Com. Comm. v. C., B. & Q. R. R. Co., 98 Fed. Rep. 173; S. C., 103 Fed. Rep. 249; S. C., 186 U. S. 320; Cattle Raisers' Assn. v. C., B. & Q. R. R. Co., 10 I. C. C. 83, and 11 I. C. C. 296; Commodity Rates St. Louis to Texas Points, 11 I. C. C. 238; Cattle Raisers' Assn. v. C., B. & Q. R. R. Co., 12 I. C. C. 507; and this case below, 164 Fed. Rep. 638.

This case is even stronger for the commission than that in which the terminal charge was condemned in 186 U. S. 320. The power of the commission to make orders such as the one in

Argument for Appellant.

215 U.S.

volved is legislative and an order should not be set aside by the courts unless it violates property rights guaranteed by the Constitution. Maximum Rate Cases, 167 U. S. 479; Reagan v. Farmers' L. & T. Co., 154 U. S. 362; Knoxville v. Water Co., 212 U. S. 1; Willcox v. Consol. Gas Co., 212 U. S. 19; Prentis v. Atlantic Coast Line, 211 U. S. 210; Home Telephone Co. v. Los Angeles, 211 U. S. 265; Honolulu Transit Co. v. Hawaii, 211 U. S. 282.

Under the old law the function of the Interstate Commerce Commission was in its nature judicial. It passed upon the reasonableness of existing rates and the courts reviewed its conclusions just as they review those of an inferior judicial tribunal, treating the commission as a referee of the Circuit Courts of the United States. See 37 Fed. Rep. 614; New Orleans & Texas Pacific Ry. v. The Interstate Commerce Commission, 162 U. S. 184; Maximum Rate Cases, 167 U. S. 479. Under the act as now amended the commission fixes the rate and the courts have the same authority to review that they would if the rate had been fixed by Congress itself. The so-called "Court Review" amendment, which is embodied in the Hepburn Act, is merely declaratory. The only thing added is the venue and the express authorization of suits against the commission as a representative of the Government.

It is not the reasonableness of the rate which is now before the court; that question is submitted exclusively to the commission. The rate fixed by the commission may in the judgment of the court be unreasonable and yet it will not be declared unlawful unless it is so unreasonable as to constitute a confiscation of property. Knoxville v. Water Co., 212 U. S. 1; San Diego Land & Town Co. v. National City, 174 U. S. 739, 754.

The commission did not err in considering the terminal charge and the through rates together. That was settled in the C., B. & Q. Case, 186 U. S. 320, and there has been no change since then. The sole result of the terminal charge is to increase the cost to the shipper for the same service. Nor did the Hepburn Act since passed alter the situation. In neither

215 U.S.

Argument for Appellant.

case has there been an obligation to make a terminal charge. The railroads have created the Union Stock Yards and made it their depot and the only available place for delivery of live stock in Chicago. It is the greatest live stock market in America and the other depots they have established are paper depots and no real terminal service exists. It is a pretense for the terminal charge. Covington Stock Yards v. Keith, 139 U. S. 128. No charge above one dollar per car is justifiable. Putting the two dollars terminal charge on at Chicago and not at other points made an unjust discrimination against Chicago and is not justifiable.

The order does not violate constitutional rights even if one dollar is less than the cost of terminal service.

The rule adopted below is that where railroad companies publish a terminal charge for terminal service, and the commission is called upon to declare whether or not it is reasonable, the commission must, as a matter of law, determine this question solely by the cost of the terminal service, independent of the fact that the through rate already includes compensation for the terminal service and independent of the fact that the transaction as a whole is profitable to the roads.

This is not sustained by reason or authority. To uphold it is to say that the railroads can charge twice for the same service, and the commission is without power to strike off the charge which is last put on. Even if the railroads had in this case, actually and in good faith, separated the terminal service from the through service, and the terminal charge from the through charge, the commission could reduce the terminal charge if they found that the through charge was high enough to include it.

But the railroads have not separated these two services and charges. They cannot separate the services because a shipment of live stock from the point of origin to the Union Stock Yards is one transaction and inseparable.

If a carrier adds a charge for a pretended separate service, which is already included in another service for which he is