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§ 424. “Such Powers of Adjudication and Administration.”

ADJUDICATION.—The power of adjudication is a judicial power. To adjudicate is “to adjudge; to try and determine, as a court; to settle by judicial decree.” (Webster's Internat. Dic.) Sec. 102 shows that the Inter-State Commission is intended to exercise powers of an essentially judicial nature, and indeed, in one class of subjects, is given exclusive jurisdiction, and a final decision on questions of fact. Unlike the American Commission, which can only investigate and prosecute, the Inter-State Commission may be given—and no other tribunal can be given—power to decide as to the reasonableness of rates on State railways. A further index of the judicial nature of these duties is given by the provision for an appeal from the Inter-State Commission to the High Court on questions of law (sec. 73). An appeal is the removal of a matter from a lower judicial tribunal to a higher (see Note, § 301, supra); and the appellate jurisdiction of the High Court implies a judicial determination by the lower tribunal.




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The Inter-State Commission, therefore, in respect of its powers of adjudication, is, like the English Railway and Canal Commission, a court. It is doubtful, however, whether it is one of the courts in which the judicial power of the Commonwealth is vested by sec. 71. It is apparently not a court “created by the Parliament;” for though the Parliament is left to organize and endow it with powers, it is virtually created by the Constitution itself. Moreover, to rank it as a court created by the Federal Parliament would be to introduce an inconsistency between sec. 103, which defines the tenure of the members of the Commission, and sec. 72, which defines the tenure of Justices of “Courts created by the Parliament.” It may be contended, however, that the Inter-State Commission comes within the definition of courts which the Parliament invests with federal jurisdiction, though the courts especially contemplated by that phrase are the courts of the States; see sec. 77—iii. The Commission will have no jurisdiction until the Parliament invests it with jurisdiction; for, though the Constitution forbids the Parliament to vest elsewhere the jurisdiction as to the unreasonableness of preferences and discriminations, it does not vest that jurisdiction in the Commission—and in fact the jurisdiction will not exist until the Parliament has legislated under sec. 102.

The question whether the Inter-State Commission is one of the courts in which by sec. 71 the judicial power of the Commonwealth is vested may perhaps seem to be of theoretical interest rather than of practical importance; since this section clearly enables part of the actual judicial power of the Commonwealth to be vested in the Inter-State Commission. It might, however, arise in a very practical way; if, for example, the Parliament were to attempt to make the jurisdiction of the Inter-State Commission exclusive of that of the State Courts (see sec. 77), or if the Parliament were to make laws conferring rights to bring a State before the Commission, in some controversy relating to commerce but not connected with State railways. (See secs. 78, 98.)

ADMINISTRATION.—The functions of the Commission, however, are not to be solely judicial. It may also be invested with all administrative powers which are necessary for the execution of the federal trade and commerce law. In this capacity it can be entrusted with all the powers and duties of investigation, inquiry, and prosecution which belong to the American Commission. A solely judicial tribunal can take no steps until a complaint in the nature of a judicial proceeding is brought before it; but an administrative department, armed with the proper powers, can make inquiries and take action upon its own initiative. The Commission is intended to be policeman as well as judge.

NTO A LEGISLATIVE BODY.—The Commission may have judicial powers, and executive powers, but no mention is made of legislative powers. The Constitution does not contemplate the existence of any legislative organ of the Federal Government other than the Federal Parliament itself. Apart altogether from the question whether the Federal Parliament can delegate any part of its legislative power to other bodies, it would seem that any such powers are by direct implication denied to the Inter-State Commission. The Parliament could no more confer legislative power upon the Inter-State Commission than upon the High Court. (See Cincinnati, &c., R. Co. v. Inter-State C.C., 162 U.S. 184; Texas and Pac. R. Co. v. Inter-State C.C., 162 U.S. 197; Inter-State C.C. v. Cincinnati, &c., R. Co., 167 U.S. 479.

This does not prevent power being given to the Commission to frame purely administrative regulations. If the Commission has power, of its own motion, to promulgate general orders, these must be confined to the obvious purposes and directions of the statute law, since it has no legislative powers. (Inter-State C.C. v. Cincinnati, &c., R.Co., 167 U.S. 479.)




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