WANTED A RAILWAY COURT OF LAST RESORT. 215 



permanent, it should be as perfect in operation and as nicely 

 adjusted as possible ; and to this end there are two details still 

 desirable. In order that the subjects of the regulation, as well 

 as its administrators, should be able to know exactly what is 

 required of them: exactly what to expect, and be forever the 

 one as well as the other confident that no rules and regulations, 

 penalties or punishments, should be at any time " sprung " upon 

 them, or be enforced by way of surprise ; or without, as the phrase 

 goes, that due process of law, " of which " notice " has been held 

 to be the most essential part " : it is necessary and vital that there 

 should somewhere be and remain a court of last resort. 



Now, the tribunal or office which we know as the " Interstate 

 Commerce Commission " with headquarters in Washington is 

 not a court of last resort, or, indeed, a court of any sort. It is 

 nothing, indeed, but a referee or master-in-chancery, whose only 

 authority is to find and report a fact or a state of facts. (This 

 has been repeatedly held, not only by the lower courts, but by the 

 Federal Supreme Court itself.) Moreover, this Interstate Com- 

 merce Commission has no power to award a judgment; or, if 

 it does award a judgment, to enforce that judgment by process or 

 execution. However penal in character its decrees may be, the 

 summary process must issue elsewhere. 



Assuming that the American principle that all government de- 

 rives its charter from the consent of the governed has been satis- 

 fied by the obedience rendered to the provisions of the Interstate 

 Commerce law by the railway companies, it follows that the rail- 

 way companies are entitled not only to know exactly what is ex- 

 pected of them, but to know to what tribunals they are amenable 

 in case of any future disobedience or inadvertence or misunder- 

 standing as to the provisions or edicts by which they are governed. 

 And, further, the governed are entitled to a single statute or set of 

 statutes, and to a single tribunal or succession of tribunals, and 

 to be relieved from the confusion of conflicting collateral statutes 

 and collateral tribunals. If they, the governed railway com- 

 panies, are not entitled to know just exactly what they are to do 

 and what to leave undone, then they are entitled to the public sym- 

 pathy rather than to the public surveillance ; and, no matter what 

 they do or leave undone, can plead such a. conflict of collatera 

 laws and of decisions and of decrees of courts as will leave it 

 impossible for them to be guided by anything in any given case 

 but their own sovereign discretion. 



Is there at present such a state of affairs as renders the rail- 

 ways entitled to act upon their own sovereign discretion, equitably 

 if not legally; and to plead mistake in case of an arraignment 

 for any consequences or any result of such action ? Remembering 

 that the law of the land, the common law, was not written for rail- 



