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Argument for the United States.

carrying on transportation which is subject to the regulating power of Congress and which is to be protected from favoritism by the Commission, that renders them subject to all the general provisions of the act applicable to agents.

The orders of the Interstate Commerce Commission are not arbitrary, but tend to advance the general purposes of the act, and the orders conform to the requirements of § 20. See address of Prof. Henry C. Adams, 5th Ann. Conv. Ry. Com'rs, 44.

Congress in adopting these regulations, and the Commission in carrying them out, have exercised that legislative discretion which belongs to that branch of the Government; they have determined what means will best enable the legislative branch of the Government to perform the duty assigned to it of regulating and protecting interstate commerce. McCulloch v. Maryland, 4 Wheat. 316, 421; Lottery Case, 188 U. S. 321, 353.

There is no merit in the claim of appellees that Congress has granted to the Commission legislative powers in violation of the fundamental law. Buttfield v. Stranahan, 192 U. S. 497; Union Bridge Co. v. United States, 204 U. S. 377; Monongahela Bridge v. United States, 216 U. S. 177; United States v. Grimaud, 220 U. S. 506.

As to appellees' contention that its constitutional rights are invaded by the publicity given its business, see Corporation Tax Law Case, 220 U. S. 107; Baltimore & Ohio R. R. Co. v. Int. Com. Comm., supra.

The Commerce Court erred in holding that a recast of the forms of reports should be made by the Commission, acting in conformity with the views expressed by that court, thereby requiring that the reports and classification of accounts should only include business partly by railroad and partly by water.

Mr. James A. Fowler, Assistant to the Attorney General,

Argument for the United States.

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with whom Mr. Blackburn Esterline, Special Assistant to the Attorney General, was on the brief, for the United States:

Information relating to the entire business of a common carrier subject to the provisions of the Act to Regulate Commerce, whether interstate or intrastate, is essential to the proper enforcement of the law and Congress has the power to require its production at the instance of the Interstate Commerce Commission. McCulloch v. Maryland, 4 Wheat. 316, 421, 423; St. Louis & San Francisco Railway Co. v. Gill, 156 U. S. 649; Minneapolis & St. Louis Railroad Company v. Minnesota, 186 U. S. 257; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 465, 470, 472; Interstate Commerce Commission v. Baird, 194 U. S. 25, 43, 44; Baltimore & Ohio Railroad Company v. Interstate Commerce Commission, 221 U. S. 612, 622; Flint v. Stone Tracy Company, 220 U. S. 107; Employers' Liability Cases, 207 U. S. 463, 497.

When common carriers, either by railroad or by water, engage in commerce among the several States, however slight the extent, knowledge and information concerning their entire business are essential to the enforcement of the law, and Congress has the power to establish rules and regulations requiring them to keep books and to file reports covering their entire business, interstate and intrastate, in the manner and form prescribed by the Interstate Commerce Commission. In the keeping of books and the making of reports showing receipts and expenditures, it is impracticable to separate business which is intrastate from that which is interstate and requiring such knowledge and information concerning such intrastate business is not regulation thereof. The Daniel Ball, 10 Wall. 557; Smith v. Alabama, 124 U. S. 465, 479, 480; United States v. Northern Securities Co., 193 U. S. 197, 335; Interstate Commerce Commission v. Illinois Central Railroad Company, 215 U. S. 452, 474; Baltimore & Ohio

224 U.S.

Argument for Appellees.

Railroad Company v. Interstate Commerce Commission, 221 U. S. 612, 618; Southern Railway Company v. United States, 222 U. S. 20, 26.

By § 20 of the Act to Regulate Commerce, the Interstate Commerce Commission is authorized and empowered to prescribe the method of bookkeeping for and to prescribe the forms of reports and to compel the filing thereof by water line carriers subject to the provisions of the act, as to business other than that carried by them under arrangements with railroad companies for a continuous carriage or shipment. The method of bookkeeping and the forms prescribed by the Interstate Commerce Commission under § 20, which embrace all business, interstate and intrastate, and of whatsoever kind or nature, are in accordance with the intention of Congress as expressed in its legislation on the subject.

Section 20 is not unconstitutional on the ground that it authorizes unreasonable searches and seizures. Hale v. Henkel, 201 U. S. 43, 77; Interstate Commerce Commission v. Baird, supra; Baltimore & Ohio Railroad Company v. Interstate Commerce Commission, supra; Flint v. Stone Tracy Company, supra.

Section 20 is not unconstitutional on the ground that it vests legislative power in the Interstate Commerce Commission.

Mr. Ralph M. Shaw, with whom Mr. John Barton Payne, Mr. Silas H. Strawn and Mr. Garrard B. Winston were on the brief, for appellees:

The Act to Regulate Commerce does not provide that a water carrier, by filing a joint rate with respect to certain traffic with a rail carrier, subjects itself, or all of its business, to all of the provisions of the act.

Congress did not intend to include the water carriers within the terms of the act.

If the appellees are wrong as to this (and it is insisted.

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they are not), only certain specifically designated traffic of the water carriers is subject to the act.

This appears from: The history of the passage of the act of 1887, including the congressional debates thereon; contemporaneous construction by the courts; contemporaneous interpretation by the Commission itself; the congressional debates prior to the passage of the act of 1906; the act of 1910, which prohibits the interpretation urged by the Commission; the internal evidence of the act; a comparison of certain provisions of the act with specific legislation in re water carriers; and the rules laid down by the courts for the interpretation of the Act to Regulate Commerce, all of which preclude the interpretation placed upon it by the Commission in this case.

One engaged in intrastate business, who also engages in interstate business, does not, thereby, subject all his intrastate business to the regulating power of Congress. Employers' Liability Cases, 207 U. S. 502; B. & O. R. R. Co. v. I. C. C., 221 U. S. 612, 618; Cin., N. O. & Tex. Pac. Ry. v. Int. Com. Comm., 162 U. S. 184. The Daniel Ball, 10 Wall. 557, explained and distinguished.

An act of Congress, or the order of an officer of the Federal Government, or a subordinate body, created by an act of Congress, or a decree of a Federal court which under the guise or the pretense of regulating interstate commerce, is so broad in its scope as to in fact regulate or interfere with intrastate commerce, is void.

Under such circumstances, especially when the act is penal, the court will not introduce words of limitation and thus by judicial interpretation attempt to make good that which in its essence is void. Illinois Central v. McKendree, 203 U. S. 514, 529; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 247; Employers' Liability Cases, 207 U. S. 492, 498, 502; United States v. Reese, 92 U. S. 214, 221; Trade-Mark Cases, 100 U. S. 82, 99; United States v. Ju Toy, 198 U. S. 253, 262.

224.U.S.

Argument for Appellees.

Section 20 of the Act to Regulate Commerce is void because it is an unlawful delegation of legislative power. The law gives the Commission discretion to determine whether it will legislate or not; the law also confers discretionary power upon the Commission to determine what (if any) the legislation shall be. Field v. Clark, 143 U. S. 645, 693; Wayman v. Southard, 10 Wheat. 1, 43; Harriman v. Int. Com. Comm., 211 U. S. 407, 418; O'Neil v. Am. Fire Ins. Co., 30 Atl. Rep. 943; Anderson v. Manchester Fire Ins. Co., 63 N. W. Rep. 241; Dowling v. Lancashire Ins. Co., 65 N. W. Rep. 758; King v. Concordia Fire Ins. Co., 103 N. W. Rep. 616.

On this point the cases at bar are not, for several reasons, controlled by either United States v. Grimaud, 220 U. S. 506, or St. Louis & Iron Mountain R. R. Co. v. Taylor, 210 U. S. 281.

A conspicuous reason is that in the cases at bar Congress did not determine or legislate that there should or ought to be any rules or regulations respecting bookkeeping methods or any uniformity therein. On the contrary, Congress left it to the Commission in their discretion to determine: Whether there should be any legislation on the subject at all; and if so, to enact such legislation. It was thus a complete divestiture or delegation of legislative power.

Whether or not a power claimed but not granted is a necessary incident to the power granted is (where the facts are not conceded) to be determined by the court.

If under the pretense of exercising a power granted Congress or a subordinate body goes beyond that which is necessary, then such action on the part of Congress or its subordinate body is void. Int. Com. Comm. v. Ill. Cent., 215 U. S. 452; Adair v. United States, 208 U. S. 161; C., R. I. & P. Ry. Co. v. Arkansas, 219 U. S. 453; Employers' Liability Cases, 207 U. S. 463; Atlantic Coast Line v. Riverside Mills, 219 U. S. 186; Int. Com. Comm. v. Union Pacific Co., 222 U. S. 541.