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 Commerce 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 derives its charter from the consent of the governed has been satisfied by the obedience rendered to the provisions of the Interstate Commerce law by the railway companies, it follows that the railway companies are entitled not only to know exactly what is expected of them, but to know to what tribunals they are amenable in case of any future disobedience or inadvertence or misunderstanding 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 companies, are not entitled to know just exactly what they are to do and what to leave undone, then they are entitled to the public sympathy rather than to the public surveillance; and, no matter what they do or leave undone, can plead such a conflict of collateral 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 railways 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-
