and without discrimination—­both mere expressions of the common law—­and leaves the determination of what is reasonable between the Interstate Commerce Commission and the Supreme Court, neither of them legislative bodies.  The common law may, indeed, be decided by a judicial body; but it is difficult to see why the alteration of the common law is not legislation.  And this criticism applies a fortiori to the Taft Bill just enacted (June, 1910), which gives the Interstate Commerce Commission power to fix rates of their own motion.  When, therefore—­if the author may venture to repeat his words—­the commission fix a “just and reasonable” rate,[1] if they are applying the common law, their act is judicial; if they are fixing other standards, it is legislative.[2]

[Footnote 1:  United States Act of February 4, 1887, as amended June 29, 1906, sec. 15.]

[Footnote 2:  Stimson’s “Federal and State Constitutions of the United States,” p. 53.]

Coming to the States again, this constitutional difficulty does not concern us, for it has been decided that the division of powers into legislative, executive, and judicial must, as to the States, be expressly provided in the State constitutions and is not guaranteed under the Fourteenth Amendment.  Broadly speaking, the history of legislation has been as follows:  The States have usually exercised their rate-making power through a railroad or corporation commission.  New York and Virginia now employ the more comprehensive phrase “public service” or “corporation” commission.  The Massachusetts statute, like the Granger statutes, dates from 1874.  Just as we found in the Middle Ages in the case of the Black Death in times of famine, so times of panic with us have always produced radical legislation:  this, it will be noted, is the year after the great panic of 1873.  But the Massachusetts law, the earliest of all, did not and does not authorize any fixing of rates, or even any finding as to what was reasonable upon rates.  It extends only to the other conditions of service.  The statute is, perhaps, broad enough to permit such a finding as matter of opinion; but it would have no legal effect.  The commission, section 15, were authorized to find that a change in rates of fares for transporting freight or passengers was reasonable and expedient, and so inform the corporation and the public, through their annual report.  All the Western States, however, did give such power.

As has been said, no constitutional objection has been sustained by the United States Court as to this delegation of power, if it be one; but in later years, possibly dissatisfied with the conservatism of such boards, we find drastic legislation, particularly in the West and South, fixing maximum rates, at least as to passengers (it is obviously difficult, if not impossible, to enact express legislation as to freight rates).  Such legislation stands in as strong (or stronger) constitutional position, as rates made by