§ 307. “Of the Inter-State Commission, but as to Questions of Law Only.”
The Inter-State Commission is to have “such powers of adjudication and administration as the Parliament deems necessary” for executing and maintaining the constitutional provisions and federal laws relating to trade and commerce. (See Notes to sec. 101.) So far as it is invested with powers of adjudication it will be in effect a part of the federal judiciary; and to prevent any exception being made to that uniform interpretation of the law which it is the aim of the Constitution to ensure, an appeal from its decisions on questions of law is given to the High Court. On the other hand, the questions of fact which it will have to investigate are left to the final decision of the Commission.
LAW AND FACT.—The precise definition of “questions of law,” and of its antithesis “questions of fact,” is not easy; for though the distinction between the two is broad and fundamental, there is a region of “mixed questions” which partake of the nature of both. Broadly speaking, a question of law is the question whether there is a rule of law which governs certain ascertained circumstances; a question of fact is the question whether, in any particular case, those circumstances exist. (See Sweet, Dictionary of Law, sub. tit. “Fact.”) The distinction, in English law, has been chiefly worked out in defining the respective functions of the judge and the jury; the recognized principle being that questions of law are to be decided by the judge, questions of fact by the jury. In the case of the Inter-State Commission the position is somewhat different; the Commission is itself both Judge and Jury in the first instance; but its decisions as a jury are final, whilst its decisions as a judge are subject to review. It is conceived, however, that this difference is immaterial, so far as the distinction between “law” and “fact” is concerned, and that the phrase “question of law” in this section has precisely the same signification as it has in the general law of evidence. For general discussions on this subject, see Taylor on Evidence, § 26; Best on Evidence, §§ 80–82.
The admissibility of evidence is a question of law. (Taylor, § 23; Best, § 80.) How far the Inter-State Commission, sitting as a judicial tribunal, will be bound by the strict rules of evidence, is a matter of procedure to be determined by the Federal Parliament; but, whatever rules of evidence may be prescribed, it would seem that an infringement of those rules, by the wrongful acceptance of inadmissible evidence, or rejection of admissible evidence, would be a good ground of appeal.
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On the other hand, the weight or value of evidence is a question, not of law, but of fact. (Taylor, § 25 A; Best, § 80.) Where there is a conflict of evidence, it is the duty of the jury to balance the evidence of the opposing witnesses, and to decide what the facts of the case really are. The restriction of the right of appeal to “questions of law only” prevents any decision of the Commission from being reviewed on the ground that it is against the weight of evidence.
The question whether there is any evidence on which a verdict can properly be given in favour of the party on whom the burden of proof lies—or, as it is sometimes put, upon which a jury could as reasonable men find such a verdict—is a question of law. (Taylor, § 25 A; Best, § 82.) “Whether there be any evidence, is a question for the Judge. Whether sufficient evidence, is for the jury.” (Per Bullen, J., Carpenter's Co. v. Hayward, 1 Dougl. 375.) These propositions are perfectly consistent, though their application may be difficult. The determination whether there is any evidence upon which a verdict could reasonably be founded does not involve a balancing of the weight of evidence; on the contrary, it assumes that full weight must be given to the evidence of the party—that the facts alleged by him are true; and it is for the court, and not the jury, to say whether, on that assumption, there is reasonable justification for a finding.
“As the decisions of tribunals on questions of fact ought to be based on reasonable evidence, and when the facts are undisputed, the decision as to what is reasonable is matter of law, and consequently within the province of the court—it follows that it is the duty of the court to determine whether, assuming all the facts proved by the party on whom the burden of proof lies to be true, there is any evidence on which the jury could properly—i.e., without acting unreasonably in the eye of the law—decide in his favour.” (Best, § 82.)
The most important application of these principles is in connection with the duty cast on the Inter-State Commission (sec. 102) of deciding whether the facts which may be proved before it constitute a “preference or discrimination,” or whether a preference or discrimination is “undue and unreasonable, or unjust to any State,” or whether “due regard” has been had to the financial responsibilties of a State. All these are “mixed cases,” which it is rather hard—apart from authority—to classify as either questions of law or questions of fact.
“If the question be whether a certain party had probable cause for doing an act, or whether he has done an act within a reasonable time, or with due diligence, it is difficult to say whether the definition of what constitutes probable cause, reasonable time, or due diligence, be for the judge or jury, and specious arguments will not be wanting in favour of the claims of either party. On the one hand, it may be said that these terms are as capable of judicial interpretation as the words ‘conversion’ or ‘asportation,’ which must be clearly explained by the Judge; while on the other hand it may be urged that they seem rather addressed to the practical experience of practical men, than to the legal knowledge of the lawyer; that, being terms of degree, their meaning is subject to indefinite fluctuation, according to the varying circumstances of each particular case, and that consequently they defy all attempts to compress them within exact a priori definitions.” (Taylor on Ev. § 26.)
The authorities as to whether the reasonableness of conduct, under any given circumstances, is a question for the court or the jury, are somewhat conflicting; but the guiding principle seems to be that if the question is one on which the court is likely to be more competent than the jury to form an opinion, it will be treated as a question of law; and vice versa. Thus in an action for malicious prosecution, the question whether, on the fact proved, there was probable cause for prosecution is a question for the judge—who is assumed to be a more competent judge of the question than a jury. So, as we have seen, the question whether there is reasonable evidence is a question for the judge. On the other hand, in most actions, the reasonableness of the belief on which the defendant has acted is a question for the jury. Questions of reasonable time— except in cases, such as the dishonour of a bill, where precise rules have been adopted as to what is reasonable—are usually left to the jury; as are also questions of reasonable skill or care, due diligence, and gross negligence. (Taylor on Evidence, § § 26–38.)
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Whether “reasonableness” is a question of law or a question of fact seems therefore to depend on the assumed competence of the tribunals to which questions of law and fact are respectively assigned. It may be said that this is a somewhat arbitrary and unscientific test of classification; but it must be remembered that all classifications are more or less arbitrary; and this classification has at least the merit of endeavouring to assign each question to the most suitable tribunal.
Applying these principles to the Inter-State Commission, it is necessary to take into consideration the special character of that body, and the purposes for which it is constituted. The function of the Commission, in its judicial capacity, is to decide upon a class of questions involving the consideration of an intricate multitude of facts, and upon which a body of commercial experts are able to form a better opinion than a Bench of judges. Accordingly it is contemplated that the Inter-State Commission will consist of competent experts in the questions which will arise. It is a jury, but a jury of a very special character; a jury who are also judges—who are selected on account of their competence, and are secured in their tenure of a responsible position. The spirit as well as the letter of the Constitution would seem to indicate that the question whether a preference or discrimination is “undue and unreasonable, or unjust to any State”—or whether “due regard” has been had to the financial responsibilities of a State—are questions on which the decision of the Commission is absolutely final.
This conclusion is supported by decisions under the English Railway and Canal Traffic Acts, and the American Inter-State Commerce Act (see Notes, secs. 101, 102). The English Railway and Canal Traffic Act, 1888 (51 and 52 Vic. c. 25, s. 17), provides an appeal from the Railway and Canal Commission to the Court of Appeal, “but not on any question of fact or locus standi.” In Phipps v. London and N.W.R. Co. (1892) 2 Q B. 229, it was held that the question whether a preference was undue or unreasonable was a question of fact for the Commission. (See also Palmer v. London and S.W.R. Co., L.R. 1 C.P. 593; Denaby Main Colliery Co. v. Manchester, &c., R. Co., 14 Q.B.D. 209, per Selborne, L.C.) “As there is nothing in the (Inter-State Commerce) Act which defines what shall be held to be due or undue, reasonable or unreasonable, such questions are questions not of law, but of fact.” (Texas and Pac. R. Co. v. Inter-State Commerce Commission, 162 U.S. at p. 219. And see Inter-State Commerce Commission v. Alabama Midland R., 168 U.S. 145; and notes to sec. 102, infra.)
In two particular cases the judgment of the Commission is expressly made final. If the Commission decides that a rate is not undue, unreasonable, or unjust (sec. 102), that settles the question finally; and if the Commission decides that any railway rate of a State is “necessary for the development of the territory of the State,” nothing in the Constitution can render the rate unlawful. It does not appear, however, that the mention of these two cases raises any presumption that an appeal lies in other cases not mentioned. These two provisions were inserted, not so much to prevent an appeal to the High Court, as to provide a tribunal independent of the Parliament; their object was to guard against the decision of a judicial question by a political body. They are so absolute in terms that they clearly make the opinion of the Commission, in these cases, final; but they do not seem to raise any presumption which would affect the interpretation of the words “questions of law.”
But although the questions of what is unreasonable, what is unjust, what is undue, are for the Inter-State Commission alone, the interpretation of such words as “preference” and “discrimination”—like the interpretation of any other words in the Constitution— involves a question of law. The question whether the proved facts constitute a preference or discrimination, within the meaning of the Constitution, would seem to be wholly a question of law; though, if a preference or discrimination were held to exist, its reasonableness or unreasonableness would be a question of fact.
“Questions of law” include questions arising not only upon the laws of the Commonwealth, but upon the laws of the States. It may be that in the Courts of a State (and even on appeal from the Courts of that State) the laws of another State may
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have to be proved as matters of fact (see Notes to sec. 118); but it is clear that the Inter-State Commission, having the duty not only of executing—and in the first instance interpreting—the Constitution and the laws of the Commonwealth, but also of adjudicating upon the “laws and regulations” of the States, must act as judicial interpreters of the latter as well as of the former. On the same principle it has been decided in the United States that the federal courts, in the exercise of their original jurisdiction, take judicial notice, without proof, of the laws of all the States. (Chicago and Alton R. Co. v. Wiggins Ferry Co., 119 U.S. 615.)