er commerce expressly given to Congress in
the Constitution, is limited by the ordinary property guarantees of
that instrument; possibly because the Fifth Amendment is of later date
than the body of the Constitution.

[Footnote 1: We may divide monopolies into legal, geographical, and
_de facto_, or "virtual" monopolies--phrases which sufficiently
describe themselves.]

We thus find that the earliest legislation regulating rates was that
of the States. It was thirteen years after the Iowa statute above
referred to that the Interstate Commerce Act was passed, which was
supposed to give a power--afterward denied by our Supreme Court--to
the Interstate Commerce Commission to fix rates. It certainly did give
them power to find, upon complaint, what was a reasonable rate, which
was _prima facie_ evidence in case of appeal. In hundreds of cases
actual rates were complained of, in probably many more discrimination
was complained of, and, according to Mr. Meyer, the commission was
found by the Supreme Court to have decided rightly about half the
time. In 1903 came the intelligent Elkins Bill against discrimination,
which merely re-enacts the common law, and up to within two or three
years has proved the only really effective measure of controlling the
rates themselves. In 1906 came the Hepburn Act under Roosevelt, giving
general power to the commission to fix rates upon complaint, to make
joint rates, extending the statute to the oil pipe-lines, express
companies, and sleeping-car companies, and going to the verge of
the Constitution in an effort to provide that rates fixed by the
commission should take immediate effect. So far as most recent
decisions go, however, this great statute has not altered the position
of the Supreme Court of the United States as to the constitutional
necessity of a reasonable return to the carrier, and perhaps the
cardinal question remains to be decided, whether such rate-making
power is legislative, and, if so, may under the Federal Constitution
be delegated by Congress to any board. Congress merely proclaims that
the rates shall be reasonable 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 legislat