ion. 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 ena