appointed to constitute such commissions. If it is a judicial body, then it seems to be highly important that its members may be those who are versed in law, in order that they may correctly interpret the law of the land. If it is a judicial body, then questions of law are more likely to be emphasized. If, however, the commission is regarded as an administrative body, then the legal features will be minimized; then it will not be necessary that those who may be its members be versed in the substantive and adjective law of the land. The law will not be emphasized. Men then will be more likely to be appointed to its membership who have specialized in that particular part of our industrial and social life that the commission is called upon to regulate; and it is highly important that this should be so. There is no reason why a lawyer should be of any particular aid in determining what may be a fair and remunerative rate for a public service corporation. There is every reason, however, why a man who has given a life study to gas, electric and power plants, and to railroads may be of the greatest assistance in establishing a fair rate. If our commissions are to be of value, it is to be hoped that those who are appointed to them will be experts, and that in reaching their conclusions they will not be hindered by the vexatious delays of legal technicalities. An administrative body will probably listen to hearsay evidence and give it such weight as it considers it worth. It may dispense with the technical proof of the execution of documents or of signatures; it may hear witnesses of either side in such order and at such times as it may see fit. On the other hand, a judicial body is quite likely to find itself bound by the rules of evidence, and to have its decisions and findings reversed if it allows improper evidence or refuses to permit proper evidence as determined by the forms and standards of law. If the commission is regarded as an administrative body, the conclusion of the commission on the question of fact should not be subject to review by a court unless such conclusion in some way violates a law of the land. It should not be subject to attack because in the eyes of the court it may or may not have been sustained by the weight of the evidence presented. In the event, however, that the commission is a judicial body, the conclusion is more likely to be set aside because it was not sustained by the preponderance of evidence that may have been introduced. So, too, if the functions of a commission are regarded as judicial on the one hand or executive on the other, there is likely to be a great difference in the law of appealing from or reviewing the findings and decisions of the commission. The law seems to have been fairly and definitely settled as to the powers of the court to review and set aside the findings of the commission where it has been held to be an administrative body. It is not clear, however, what the powers of a higher court may be in reviewing or setting aside the findings of a commission where it is regarded as a judicial or legislative body. In the case of Burfenning v. Chicago, St. Paul, etc. Ry.,12 the Supreme Court held that the findings of the land commission were final and could not be reviewed. The court said in that opinion that it had been affirmed over and over again that in the administration of the public land system of the United States questions of fact are for the consideration and judgment of the land department, and that its judgment thereon is final.13 This has been affirmed by a long series of cases.14 So, too, in the immigration cases, where the immigration inspector passes upon one of the most important of all possible questions from a governmental point of view that of citizenship - it has been held that his finding is not subject to review. In the case of United States v. Ju Toy,15 the immigration inspector had held that the petitioner was an alien, born in China, and that he was admitted to come into the United States in violation of the immigration act, and therefore had ordered him to be deported. The court, in a decision rendered by Mr. Justice Holmes, there held that the decision of the department was final, whatever the grounds on which the right to enter the country was claimed. And the court was apparently of the opinion that the decision of the Secretary of Commerce and Labor in the matter was conclusive and not subject to review.16 12 163 U. S. 321, 16 Sup. Ct. 1018 (1896). 13 See Bates & Guild Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595 (1904); Heath d. Wallace, 138 U. S. 573, 11 Sup. Ct. 380 (1891). 14 See American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 23 Sup. Ct. 35 (1902); Public Clearance House v. Coyne, 194 U. S. 497, 508, 24 Sup. Ct. 789 (1904). 15 198 U. S. 253, 25 Sup. Ct. 644 (1905). 16 See also Edsell v. Mark, 179 Fed. 292 (1910); Lem Moon Sing v. United States, 158 U. S. 538, top p. 544, 15 Sup. Ct. 967 (1895); United States v. Sing Tuck, 194 U. S. 161, 24 Sup. Ct. 621 (1903); Yamataya v. Fisher, 189 U. S. 86, 23 Sup. Ct. 611 (1903). In the State of Illinois this point has been established by innumerable decisions. Thus in the case of People ex rel. Hayes v. City of Chicago 17 the court said: "It makes no difference whether the review is attempted by certiorari or in a petition for mandamus; the inquiry on our part and on the part of the Circuit and Superior Courts is limited to the questions whether the Commission had jurisdiction and whether it followed the form of procedure legally applicable in such cases. This is what the Supreme Court said in People v. Lindblom, 182 Ill. 241, and we have repeated in the Heaney case and in other cases. "With the justice or injustice of the Commission's findings and sentence the courts have nothing to do, nor with the severity of the punishment, provided always that the findings and action are within its jurisdiction and the proceedings regular.” And numerous authorities have held that an administrative commission is not bound by the ordinary technical rules of evidence or procedure.1 18 To make the working of our commissions efficient and expeditious in order that they may give satisfaction to the community as a whole, and be a benefit to our times, they must be relieved from the technicalities and delays that have surrounded our courts. Technicality has been the mother of delay in our courts. In this great branch of our government the law is at the threshold of new interpretation. It is to be hoped that these laws will be interpreted in a broad and comprehensive manner so that the working of the commission will not be interfered with, and may result in the greatest possible benefit to us. The death-knell of the laissez faire doctrine that prevailed at the end of the eighteenth century and the beginning of the nineteenth century has been sounded. The commission has been instrumental in burying it. It is developing, as a public servant, the technical man. Commissions have been created where technical knowledge 17 142 Ill. App. 103 (1908). 18 See Joyce v. City of Chicago, 216 Ill. 466, 75 N. E. 184 (1905); City of Chicago v. People ex rel. Gray, 210 Ill. 84, 92, 71 N. E. 816 (1904); People ex rel. Maloney v. Lindblom, 182 Ill. 241, 244, 55 N. E. 358 (1899); People ex rel. Weston v. McClave, 123 N. Y. 512, 25 N. E. 1047 (1890); Avery v. Studley, Mayor, 74 Conn. 272, 50 Atl. 752 (1901); State ex rel. McDonald v. Corteney, 23 S. C. 180 (1885). An analysis will show that the United States immigration, land, and post office cases are to the same effect. is of the greatest possible value and necessity. So long as commissions continue to give satisfaction, we must expect that the public will demand new commissions from time to time touching new branches of industry and society. And so we are rapidly coming to be governed by commissions. CHICAGO, ILL. Herbert J. Friedman. HARVARD LAW REVIEW Published monthly, during the Academic Year, by Harvard Law Students. SUBSCRIPTION PRICE, 2.50 PER ANNUM. 35 CENTS PER NUMBER CHARLES E. HUGHES, JR., President, JAMES B. GRANT, JR., Treasurer, ROBERT W. PERKINS, JR., STUART C. RAND, J. ROBERT SZOLD, ROBERT A. TAFT, G. TRACY VOUght, JR., CHAUNCEY E. WHEELER, REGULATION OF MONOPOLY UNDER THE SHERMAN ANTI-TRUST ACT. · Under the sweeping terms of the Sherman law, any direct restraint of trade appeared illegal a few years ago. Public service companies, especially, seemed under the ban.2 But since the Standard Oil case, not only must the restraint of trade be unreasonable to be illegal, but the remedy provided must regard the public interest.3 In a recent case a terminal company owned by eight of twenty-four competing railroads was found to be an illegal monopoly by reason of its size and unfair methods. United States v. Terminal R. Ass'n of St. Louis, 32 Sup. Ct. 507. The terminal company, a combination of previously competing terminals, had acquired all possible terminal facilities, but the decree provided simply that arbitrary charges cease, and any railroad applying be furnished with equal service on reasonable terms, and at the railroad's option be admitted to joint ownership and control in the terminal company. Dissolution was provided for only in case this plan failed. The test of illegality applied was that laid down in the Standard Oil and Tobacco cases, the extent of control, and the methods of obtaining and exerting that control. Since the combination was not dissolved, however, the economic advantages of size in determining reasonableness 1 See United States v. Trans-Missouri Freight Association, 166 U. S. 290, 328, 17 Sup. Ct. 540, 554; United States v. Joint-Traffic Association, 171 U. S. 505, 571, 19 Sup. Ct. 25, 32; Northern Securities Co. v. United States, 193 U. S. 197, 328, 331, 24 Sup. Ct. 436, 453, 454. 2 See United States v. Joint-Traffic Association, supra. 3 See Standard Oil Co. v. United States, 221 U. S. 1, 78, 31 Sup. Ct. 502, 523. 4 See Standard Oil Co. v. United States, 221 U. S. 1, 60, 31 Sup. Ct. 502, 516; United States v. American Tobacco Co., 221 U. S. 106, 180, 31 Sup. Ct. 632, 648. |