be regarded as creating a dissimilar condition, yet that in the case under consideration the disparity in rates was too great to be justified by that condition, was reversed by this court, not because the Circuit Court had no jurisdiction to consider the evidence, and thereupon to affirm the validity of the order of the commission, but because that issue was not actually before the court, and that no testimony had been adduced by either party on such an issue; and it was said that the language of the act, authorizing the court to hear and determine the matter as a case of equity, "necessarily implies that the court is not concluded by the findings or conclusions of the commission."

Accordingly our conclusion is that it was competent, in the present case, for the Circuit Court, in dealing with the issues raised by the petition of the commission and the answers thereto, and for the Circuit Court of Appeals on the appeal, to determine the case upon a consideration of the allegations of the parties, and of the evidence adduced in their support; giving effect, however, to the findings of fact in the report of the commission, as prima facie evidence of the matters therein stated.

It has been uniformly held by the several Circuit Courts and the Circuit Courts of Appeals, in such cases, that they are not restricted to the evidence adduced before the commission, nor to a consideration merely of the power of the commission to make the particular order

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ment of money, while the same is in effect, any party injured thereby, or the commission in its own name, may apply to the Circuit Court for an enforcement of such order. Such application shall be by petition, which shall * be served upon the carrier, and the court shall prosecute such inquiries and make such investigations, through such means as it shall deem needful in the ascertainment of the facts at issue, or which may arise upon the hearing of such petition. If upon such hearing as the court may determine to be necessary, it appears that the order was regularly made and duly served, and that the carrier is in disobedience of the same, the court shall enforce obedience to such order by a writ of injunction, or other proper process, mandatory or otherwise, * * and in the enforcement of such process the court shall have those powers ordinarily exercised by it in compelling obedience to it by writs of injunction and mandamus. From any action upon such petition an appeal shall lie by either party to the Supreme Court of the United States, and in such court the case shall have priority in hearing and determination over all other causes except criminal causes, but such appeal shall not vacate or suspend the order appealed from. The venue of suits brought in any of the Circuit Courts of the United States against the commission to enjoin, set aside, annul or suspend any order or requirement of the commission shall be in the district where the carrier 2 has its principal operating office and may be brought at any time after such order is promulgated. ** ** * No injunction, interlocutory order or decree suspending or restraining the enforcement of an order of the commission shall be granted except on hearing after not less than five days' notice to the commission. An appeal may be taken from any interlocutory order or decree granting or continuing an injunction in any suit, but shall lie only to the Supreme Court of the United States."

See, also, the provision from the act of 1906 set forth in the passage next quoted.

"In consequence of one of the comprehensive amendments to the act to regulate commerce, adopted in 1906 (Act June 29, 1906, c. 3591, § 4, 34 Stat. 589 [U. S. Comp. St. Supp. 1909, p. 1158]), it is now provided that 'all orders

under question, but that additional evidence may be put in by either party, and that the duty of the court is to decide, as a court of equity, upon the entire body of evidence.

Coming at last to the questions of fact in this case, we encounter a large amount of conflicting evidence. It seems undeniable, as the effect of the evidence on both sides, that an actual dissimilarity of circumstances and conditions exists between the cities concerned, both as respects the volume of their respective trade, and the competition, affecting rates, occasioned by rival routes by land and water. Indeed, the commission itself recognized such a state of facts, by making an allowance in the rates prescribed for dissimilarity resulting from competition; and it was contended on behalf of the commission, both in the courts below and in this court, that the competition did not justify the discriminations against Troy to the extent shown, and that the allowance made therefor by the commission was a due allowance.

The issue is thus restricted to the question of the preponderance of the evidence on the respective sides of the controversy. We have read the evidence disclosed by the record, and have endeavored to weigh it with the aid of able and elaborate discussions by the respective counsel. No useful purpose would be served by an attempt to formally state and analyze the evidence, but the result is that we are not convinced that the courts below erred in their estimate of the evidence, and that

of the commission, except orders for the payment of money, shall take effect within such reasonable time, not less than thirty days, and shall continue in force for such period of time, not exceeding two years, as shall be prescribed in the order of the commission, unless the same shall be suspended or modified or set aside by the commission, or be suspended or set aside by a court of competent jurisdiction.' The statute endowing the commission with large administrative functions, and generally giving effect to its orders concerning complaints before it without exacting that they be previously submitted to judicial authority for sanction, it becomes necessary to determine the extent of the powers which courts may exert on the subject. Beyond controversy, in determining whether an order of the commission shall be suspended or set aside, we must consider (a) all relevant questions of constitutional power or right; (b) all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and (c) a proposition which we state independently, although in its essence it may be contained in the previous one, viz., whether, even although the order be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power. Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 698. 15 Sup. Ct. 268, 360, 39 L. Ed. 311, 316, 5 Interst. Com. Rep. 1. Plain as it is that the powers just stated are of the essence of judicial authority, and which, therefore, may not be curtailed, and whose discharge may not be by us in a proper case avoided, it is equally plain that such perennial powers lend no support whatever to the proposition that we may, under the guise of exerting judicial power, usurp merely administrative functions by setting aside a lawful administrative order upon our conception as to whether the administrative power has been wisely exercised." Interstate Commerce Commission v. Illinois Cent. R. Co., 215 U. S. 452, 469, 470, 30 Sup. Ct. 155, 160, 54 L. Ed. (1909).

we perceive no error in the principles of law on which they proceded in the application of the evidence.

The decree of the Circuit Court of Appeals is accordingly affirned. Mr. Justice HARLAN, dissenting.

SECTION 76.-CORPORATIONS

KANSAS HOME INS. CO. v. WILDER.

(Supreme Court of Kansas, 1890. 43 Kan. 731, 23 Pac. 1061.) JOHNSTON, J. Two cases between the same parties are submitted together upon a single statement of facts, and according to the stipulation of the parties only two legal propositions are presented for decision. The first one of these is whether the courts can inquire into and control the superintendent of insurance in the exercise of his official duties in granting, refusing, or revoking a certificate of authority to a mutual fire insurance company organized under chapter 132 of the Laws of 1885. Prior to the legislative session of 1889, the finding and judgment of the superintendent in respect to the solvency of an insurance company, and its compliance with the requirements of law, could not be controlled, and when he had exercised his discretion and judgment it could not be reviewed, nor the motives which actuated him inquired into by the courts. Insurance Co. v. Wilder, 40 Kan. 561, 20 Pac. 265.

The decision in the cited case, construing the statute with reference to the power and discretion of the superintendent, was given in January, 1889, and the Legislature, which convened in the same month, materially modified the statute, prescribing the power and duties of the superintendent in dealing with mutual fire insurance companies. In section 24, c. 132, Laws 1885, provision was made that, whenever it should appear to the superintendent of insurance that the solvency of a mutual fire insurance company was impaired, or that the insurance laws of the state were being violated, he should immediately make an examination, and for that purpose should have access to all the books and papers of the company, and have power to administer oaths and examine witnesses. It then proceeds: "If the superintendent of insurance shall find, upon such examination, that the solvency of the company has been impaired, or that the laws of the state have been violated, he shall immediately suspend the certificate of authority until the laws of the state have been fully complied with, or the solvency of the company restored; or, if in his judgment the public safety require

34 Only a portion of the opinion of Johnston, J., is printed.

it, he may revoke the certificate of authority, and cause the company to be enjoined from further insuring of property."

This section was amended by chapter 159 of the Laws of 1889, [by] which, after providing for reports and examinations substantially as in the original section, the provision above quoted is changed so as to read as follows: "If the solvency of such company has been impaired, or the laws of the state have been violated, by the company, the superintendent of insurance shall immediately suspend the certificate of authority until the laws of the state have been fully complied with, or the solvency of the company restored; and he also may in such a case revoke the certificate of authority, and cause the company, upon proper proceedings instituted against it, to be enjoined from further insuring of property." Provisos are then added which, in substance, state that the superintendent cannot refuse an insurance company a certificate of authority to do business in the state, or revoke or suspend a certificate already granted to such a company, if it is solvent, and has complied and is complying with the laws of the state. And the provisos further recognize that actions may be brought against the superintendent of insurance in the county where his office is located, to compel him to issue certificates of authority to an insurance company, and to restrain him from revoking or suspending a certificate of authority which had been theretofore granted.

The language in the statute of 1885 which we have italicized was omitted in the amendment of 1889. In the earlier provision, the license or certificate of authority might be suspended on the mere finding of the superintendent that the solvency of the company had been impaired, and it might be revoked solely upon his judgment that the public safety required it. The language authorizing the suspension or revocation of a certificate of authority upon the mere finding and discretion of the superintendent is carefully excluded from the later provision. These changes, together with the provisions forbidding the refusal, revocation, or suspension of a certificate of authority by the superintendent, where the company is solvent, and has complied with all the laws of the state, as well as the proviso which recognizes that an action of mandamus may be brought to compel the superintendent to issue certificates of authority, and an action of injunction may be brought against him to enjoin him from revoking or suspending certificates of authority, indicate quite clearly the legislative purpose that, in the future, the determination and action of the superintendent should not be final and conclusive, so far as mutual fire insurance companies are concerned.

The fact that the law was amended so soon after a judicial construction had been placed upon it is not to be overlooked in ascertaining the object of the Legislature in enacting the amended law. By changing the language of the statute, the Legislature has indicated a purpose to change the rule of the former statute, and that the new is to have a different construction than had already been placed upon the old one.

This circumstance, and the changes in the phraseology that were made, manifest a legislative purpose to make the determination of the su perintendent, as to the right of a mutual fire insurance company to begin or continue business, subject to judicial inquiry and control. If this was not the effect, then the amendment was for no purpose; and it is contended here that no actual change was made or intended by the amendment. But we cannot presume that the "Legislature intended to go through the form and time and expense of legislation to accomplish nothing, or to do that already fully and completely done." City of Emporia v. Norton, 16 Kan. 236. The first question presented must therefore be decided in the affirmative.

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PROVIDENT SAVING LIFE ASSUR. SOCIETY v. CUTTING, Insurance Com'r.

(Supreme Judicial Court of Massachusetts, 1902. 181 Mass. 261, 63 N. E. 433, 92 Am. St. Rep. 415.)

Case reserved from Supreme Judicial Court, Suffolk county. Petition for mandamus by the Provident Savings Life Assurance Society of New York against Frederick L. Cutting, Insurance Commissioner of the Commonwealth. Case reserved for the determination of the full court on the petition, demurrer, and agreed statement of facts. Petition dismissed.

KNOWLTON, J. This is a petition for a writ of mandamus to compel the insurance commissioner to change his valuation of the outstanding policies of the petitioner so as to diminish the reserve liability for which it must have assets to meet the requirements of our law. The duty of the commissioner to make this valuation under Rev. Laws, c. 118, § 11, is only a preliminary part of his duty, under section 17 of this chapter, annually to "make a report to the general court of his official transactions," in which he shall include, among other things, "an exhibit of the financial condition and business transactions of the several insurance companies as disclosed by official examinations of the same, or by their annual statements, abstracts of which statements, with his valuation of life policies, shall appear therein, and such other information and comments relative to insurance and to the public interest therein, as he thinks proper." It is important in one other way. It naturally is used in part as a foundation for action in case he is called upon, under section 7, to revoke or suspend the certificates and authority granted to a foreign insurance company because he is of opinion that it is "in an unsound condition," or "that its actual funds, exclusive of its capital, are less than its liabilities."

The complaint against the respondent is that in applying the rule of computation prescribed by the statute to a certain class of policies issued by the petitioner, he has made a mistake in holding that, for the