enforcement of its recommendation or order. The functions of the commission are those of referees or special commissioners, appointed to make preliminary investigation of and report upon matters for subsequent judicial examination and determination. In respect to interstate commerce matters covered by the law, the commission may be regarded as the general referee of each and every Circuit Court of the United States, upon which the jurisdiction is conferred of enforcing the rights, duties, and obligations recognized and imposed by the act. It is neither a federal court under the Constitution, nor does it exercise judicial powers, nor do its conclusions possess the efficacy of judicial proceedings. This federal commission has assigned to it the duties, and performs for the United States, in respect to that interstate commerce committed by the Constitution to the exclusive care and jurisdiction of Congress, the same functions which state commissioners exercise in respect to local or purely internal commerce, over which the states appointing them have exclusive control. Their validity in their respective spheres of operation stands upon the same footing. The validity of state commissioners invested with powers as ample and large as those conferred upon the federal commissioners has not been successfully questioned, when limited to that local or internal commerce over which the states have exclusive jurisdiction; and no valid reason is seen for doubting or questioning the authority of Congress, under its sovereign and exclusive power to regulate commerce among the several states, to create like commissions for the purpose of supervising, investigating, and reporting upon matters or complaints connected with or growing out of interstate commerce. What one sovereign may do in respect to matters within its exclusive control, the other may certainly do in respect to matters over which it has exclusive authority. * * * We are also clearly of opinion, that this court is not made by the act the mere executioner of the commissioner's order or recommendation, so as to impose upon the court a nonjudicial power. The principle announced in these cases would sustain counsel's position, if this court, under the provisions of the interstate commerce law, is limited and restricted to the mere ministerial duty of enforcing an order or requirement of the commission, whether it be regarded as a judicial or a nonjudicial tribunal. But such is not, in fact, the jurisdiction which this court is called upon to exercise. The suit in this court is, under the provisions of the act, an original and independent proceeding, in which the commission's report is made prima facie evidence of the matters or facts therein stated. It is clear that this court is not confined to a mere re-examination of the case as heard and reported by the commission, but hears and determines the cause de novo, upon proper pleadings and proofs, the latter including not only Hayburn's Case, 2 Dall. 409, 1 L. Ed. 436 (1792); U. S. v. Ferreira, 13 How. 40, 14 L. Ed. 42 (1851). the prima facie facts reported by the commission, but all such other and further testimony as either party may introduce, bearing upon the matters in controversy. The court is empowered "to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition; and on such hearing the report of said commission shall be prima facie (not conclusive) evidence of the matters therein stated." No valid constitutional objection can be urged against making the findings of the commission prima facie evidence in subsequent judicial proceedings. Such a provision merely prescribes a rule of evidence clearly within well-recognized powers of the Legislature, and in no way encroaches upon the court's proper functions.10 HARTMAN v. MAYOR, ETC., OF CITY OF WILMINGTON. (Superior Court of Delaware, 1894. 1 Marv. 215, 41 Atl. 74.) Certiorari by Maria C. Hartman against the Mayor and Council of City of Wilmington to review proceedings of a municipal board of health. Exceptions dismissed. The plaintiff was the owner of a dwelling house in the city of Wilmington, against which proceedings were taken by the board of health for the abatement of an alleged nuisance resulting from a wet cellar. The record upon which certiorari issued simply disclosed that the executive officer of the board of health reported the following nuisance (among others): "M. C. Hartman, 705 South Harrison St., wet cellar." The provisions of the statutes, charter, and ordi 10 See Sidney and Beatrice Webb, The Parish and the County, p. 419: "Neither the individual magistrate nor the divisional sessions made any distinction between (1) a judicial decision as to the criminality of the past conduct of particular individuals; (2) an administrative order to be obeyed by officials; and (3) a legislative resolution enunciating a new rule of conduct.to be observed for the future by all concerned. All alike were, in theory, judicial acts. Though many of these orders were plainly discretional, and determined only by the justices' views of social expediency, they were all assumed to be based upon evidence of fact, and done in strict accordance with law." Id. p. 309: “And though, under particular statutes, individual justices or pairs of justices could appoint parish officers, allow their accounts, authorize rates, direct the mending of founderous roads, order relief to a destitute person, command a father to pay a weekly sum for the maintenance of a bastard, apprentice a poor child, or remove a pauper to his place of settlement, the fact that there was in all these cases a right of appeal to the Superior Court of Quarter Sessions indicates that, in the eye of the law 'our county rulers have been, not prefects controlled by a bureau, but justices controlled by a court of law'; that even their apparently executive duties had to be done 'with judicial forms and in a judicial spirit'; and that their most discretional orders partook of the nature of judicial decisions, to be given only on evidence, and ‘according to the straight rule and course of the law.'" See La Croix v. County Commissioners, 50 Conn. 321, 324, 325, 47 Am. Rep. 648 (1882). nances bearing upon the subject are referred to in the argument of counsel. CULLEN, J. This is a certiorari under very peculiar circumstances, and we will not attempt to go into any extended review of the different matters and principles upon which this case rests, but shall merely state the general principles involved, upon which we dismiss these exceptions. It appears that there was a proceeding originally commenced under an act of assembly vesting in the board of health of this city certain powers and authority in relation to matters mentioned under their immediate jurisdiction. The result of the action of the board of health is not a judgment. This is a power that is conferred and which is acted on by the board of health by force of the police power, which is part of the sovereignty of the state. The state may delegate those powers, and it has in this case delegated to the board of health the power, upon complaint coming before them, to determine whether or not a thing is deleterious or injurious to the community generally; and they may examine that matter, and inquire into and investigate it. And upon this investigation, if the person upon due notice does not remove that which is deleterious-you may call it a nuisance—then the board of health have the right to remove or abate the nuisance. It is contended that there was no notice given in this case before they proceeded. Every person, of course, has his right to a day in court; but the board of health act upon these matters like a grand jury, for instance, where there is a charge against a person-on one side of the matter. When the matter is determined by them, it is not a judgment. They simply determine that a certain matter is a nuisance. Then, when it is so determined, it is their duty to notify the party that a nuisance exists on his premises, and that he is required. to remove it within a certain time, which is by them specified. The act does not prescribe a particular time in which it must be done, because the time it takes to remove it must necessarily depend upon the nature and character of the nuisance to be abated. Five days might be enough in one case, while it might take two, three, five, or six months in another. When it is determined by the board of health, acting under the police power vested in them by the Legislature or the sovereign power of the state, that a certain thing is a nuisance, it becomes their duty for the first time to notify the party of the fact that a nuisance exists on his place; that is, notice is given to him of that fact. It is nothing more or less, in our judgment, than that "a nuisance exists on your place, and we require you to remove it in so many days." The party's rights have not been invaded. It has been a mere matter of investigation. And then he may, if he see fit, have his day in court. He has an impartial, full, and complete remedy. For the first time the case enters into trial when both parties are represented. He may FR.ADM.LAW.-2 appeal to the chancellor for an injunction to stay the action, and commence an action whereby his rights may be determined by proceedings in chancery. If he sees fit to allow the matter to go on, and if the board of health have violated the powers vested in them in removing the matter, then they become personally liable. Were it otherwise, what would become of the community, and what would police regulations amount to? Parties must act in an emergency. If the board of health act in an emergency, still there is time left for the opposite party, if he wishes, to contest their action. Their action is not a legal judgment, such as is contemplated under the law, to which a certiorari at common law may issue. We think, therefore, under the circumstances, that this is not a case in which a certiorari would lie, and therefore dismiss the exceptions. SECTION 4.-SAME-ENFORCING AND DIRECTING POWERS COXE BROS. & CO. v. LEHIGH VALLEY R. CO. (Interstate Commerce Commission of the United States, 1891. 4 Interst. Com. R. 535, 576.) * * * * * * MORRISON, Commissioner.11 After submitting the proposed findings of fact for the consideration of the Commission, counsel for complainants in his concluding argument said: "As to the unreasonableness of the charge, we ask the Commission to find that the rate of $1.80 is unreasonable within the statute. We do not ask or care about your honor's establishing any particular rate. There are a great many ways in which these coal rates can be determined without fixing any arbitrary or inflexible standard. If they [the carriers] are informed that their present rate is unreasonable, they will then meet the individual operators of their districts in consultation, and I am sure some amicable arrangement will be reached by which both parties can make money." * * * * * * Counsel for the road said in reply; "That will not do. If this Commission says that the present rates are unreasonable, they must say so because there is a different rate they have determined to be a proper one. It will not do for you to make a general finding and to say: The present rates are unreasonable, but we do not know what they ought to be. We cannot fix them for you. You must agree upon them amongst yourselves.' If unreasonable, say to what extent they are unreasonable-whether to the extent of a cent, or of many cents, or of a dollar, a ton. Would it be proper for you to lay 11 Only a portion of the opinion is printed. down an abstract principle that would lead to endless confusion in the application? That would put all at chaos. For Heaven's sake do not ever make the matter of the proper rates for carrying coal one to be regulated in a conference between the carrier and the shipper. If you have been convinced by these petitioners that the present rates are unreasonable and unjust, then say what the rates ought to be." * * * Having declared the rates in question to be unreasonable, if we should act upon the suggestion of counsel for complainants and fix upon none which may be properly charged, the case before the Commission would be at an end when the railroad company was notified that its rates were found to be excessive and must be modified. The Commission having prescribed no measure of reduction, any modification made in good faith would be a compliance with the required modification, yet it might be unsatisfactory to complainants and other operators and fall short of what the law requires. Then the occasion would be presented when the operators and carriers might meet and amicably arrange what the charges should be in accordance with the suggestion of complainants' counsel. In such a meeting or conference of operators and carriers, where possible conflict of interest and opinion could arise, it might and most likely would occur that no satisfactory arrangement would be reached, and another application to the Commission would be necessary to declare the reduced rates still unreasonable. This process would need to be repeated until the legal rate was established by successive reductions, made in compliance with a series of determinations of the Commission that the rates were unreasonable. In the case under consideration suppose the facts to be, as claimed, that the charges are excessive as much or more than 50 cents. Under the rule suggested by complainants' counsel, when the rate was ascertained to be unreasonable it would be so declared, and left with the shipper and carrier for amicable arrangement. If for any reason no scale of charges was agreed upon the rate would remain for determination by the carrier whose rate is challenged. Under such a rule applied to the subject of this complaint five several proceedings would be necessary to establish the reasonable rate if in each proceeding the carrier deemed a 10-cent reduction sufficient. If, impressed with the belief that the existing rates were not exorbitant, the carrier should attempt compliance with the Commission's conclusion that they were excessive by making the least possible reductions, repeated and continual applications would be necessary to correct a single abuse. Certainly Congress intended no such absurdity as this; but, as insisted. upon by counsel for the road, when we have been convinced that rates are unjust, it will be our duty to say what they ought to be, or at least to determine upon some rate, any charge in excess of which would be unreasonable. If the duty of the Commission in respect to unjust and unlawful rates ends when it has been convinced that rates |