concurring.
I agree that the judgment of the District Court should be affirmed; but I do so on a different ground.
The. question on which I differ, was put thus by the District Court: “If in a judicial review of an order of the Secretary his findings, supported by substantial, evidence are conclusive upon the reviewing court in every case where a constitutional issue is not involved, why are they not conclusive when a constitutional issue is involved? Is there anything in the Constitution which expressly makes findings of fact by a jury of inexperienced laymen, if supported by substantial evidence, conclusive, that prohibits Congress making findings of fact by a highly trained and especially qualified administrative agency likewise conclusive, provided they are supported by substantial evidence?” 11 F. Supp. 322, 327.
Like the lower court, I think no good reason exists, for making special exception of issues of fact bearing upon -a constitutional right. The inexorable safeguard which the due process clause assures is not that a court may examine whether the findings as to value or income are correct, but that the trier of the facts shall be an impartial tribunal; that no finding shall be made except upon due notice and opportunity to be heard; that the procedure at the hearing shall be consistent with the essentials of a fair trial; and that it shall be conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed.
Suits to restrain or annul an order of the Secretary, of Agriculture are governed by the provision which Congress has made for reviewing orders of the Interstate Commerce Commission. Tagg Bros. & Moorhead v. United States, 280 U. S. 420, 432-433, 442-444. That provision does not, in my opinion, permit a district court *74to set aside an order on the ground that the Secretary erred in making a finding of fact; and the jurisdiction of this Court to review its judgment is necessarily subject to the same limitation. As the District Court concluded that no applicable rule of law was disregarded by the Secretary; that for his findings there was ample support in the evidence; that taken together they support his conclusion that the rates are compensatory; and that the proceeding was in no respect irregular, it was in duty bound to dismiss the bill without enquiring into the correctness of his findings of subsidiary facts.
First. An order of the Secretary may, of course, be set aside for violation of the due process clause by prescribing rates which, on the facts found, are confiscatory. For the order of an administrative tribunal may be set aside for any error of law, substantive or procedural. Interstate Commerce Comm’n v. Union Pacific R. Co., 222 U. S. 541, 547. Moreover, where what purports to be a finding upon a question of fact is so involved with and dependent upon questions of law as to be in substance and effect a decision of the latter, the Court will, in order to decide the legal question, examine the entire record, including the evidence if necessary, as it does in cases coming from the highest court of a State Compare Kansas City Southern Ry. v. Albers Commission Co., 223 U. S. 573, 591; Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655, 668-669. It may set aside an order for lack of findings necessary to support it, Florida v. United States, 282 U. S. 194, 212-215; or because findings were made without evidence to support them, New England Divisions Case, 261 U. S. 184, 203; Chicago Junction Case, 264 U. S. 258, 262-266; or because the evidence was such “that it was impossible for a fair-minded board to come to the result which was reached,” San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 442; or because the *75order was based on evidence not legally cognizable, United States v. Abilene & Southern Ry., 265 U. S. 274, 286-290; or because facts and circumstances which ought to have been considered were excluded from consideration, Interstate Commerce Comm’n v. Northern Pacific Ry., 216 U. S. 538, 544-545; Northern Pacific Ry. v. Department of Public Works, 268 U. S. 39, 44; or because facts and circumstances were considered which could not legally influence the conclusion, Interstate Commerce Comm’n v. Diffenbaugh, 222 U. S. 42, 46-47; Florida East Coast Ry. v. United States, 234 U. S. 167, 187; or because it applied a rule thought wrong for determining the value of the property, St. Louis & O’Fallon Ry. v. United States, 279 U. S. 461. These cases deal with errors of law or irregularities of procedure.
Second-. The contention of the appellant is that the Secretary of Agriculture erred in making findings on which rest his conclusion that the rates prescribed are compensatory. The matters here in controversy are questions of fact—subsidiary issues, about 63 in number, bearing upon two main issues of fact: What is the “value” of the property used and useful in the business? What will be the income earned on that valuation if the prescribed rates are put into force?
By the Packers and Stockyards Act, the duty of investigating and determining the facts was committed by Congress to the Secretary. It' was not disputed that ordinarily his findings made upon substantial evidence in properly conducted proceedings are conclusive. Tagg Brothers & Moorhead v. United States, 280 U. S. 420, 444. This Court has. consistently declared in cases arising under the Interstate Commerce Act, that to “consider the weight of the evidence is beyond our province,” Western Paper Makers’ Chemical Co. v. United States, 271 U. S. 268, 271; Chicago, R. I. & P. Ry. v. United *76States, 274 U. S. 29, 33-34; and that courts have no concern with the correctness of the Commission’s reasoning, with the soundness of its conclusions of fact, or with the alleged inconsistency of the findings with those made in other proceedings, Virginian Ry. Co. v. United States, 272 U. S. 658, 663, 665-666. Compare New York & Queens Gas Co. v. McCall, 245 U. S. 345, 348; Georgia Ry. & Power Co. v. Railroad Commission, 262 U. S. 625, 634; Silberschein v. United States, 266 U. S. 221, 225; Ma-King Co. v. Blair, 271 U. S. 479, 483.
The cases are numerous in which the attempt was made to induce this Court to annul an order of the Commission for error of fact; but in every case relief was denied. See St. Louis & O’Fallon Ry. v. United States, 279 U. S. 461, 493, n. 8. In this case also, the Court refuses to sét aside the order. But it declares that an exception to the rule of finality must be made, because a constitutional issue is involved; and that the Court, weighing the evidence, must in its independent judgment determine the correctness of the findings of fact made by the Secretary. That view finds support in Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287, and in general statements made in Manufacturers Ry. Co. v. United States, 246 U. S. 457, 488-490, and other cases; but it is inconsistent with a multitude of decisions in analogous cases hereafter discussed.
Third. The Fifth Amendment, like the Fourteenth, declares that property may not be taken without due process of law. But there is nothing in the text of the Constitution (including the Amendments) which tells the reader whether to constitute due process it is necessary that there be opportunity for a judicial review of the correctness of the findings of fact made by the Secretary of Agriculture concerning the value of this property or its net income. To learn what the procedure must be in a particular situation, in order to constitute due process, we *77turn necessarily to the decisions of our Court. These tell us that due process does, not require that a decision made by an appropriate tribunal shall be reviewable by another. Pittsburgh, C., C. & St. L. Ry. v. Backus, 154 U. S. 421, 426-427; Reetz v. Michigan, 188 U. S. 505, 508; Dohany v. Rogers, 281 U. S. 362, 369. They fell us that due process is not necessarily judicial process. Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 280; McMillen v. Anderson, 95 U. S. 37, 41; United States v. Ju Toy, 198 U. S. 253, 263. And they draw distinctions which give clear indication when due process requires judicial process and when it does not.
The first distinction is between issues of law and issues of fact. When dealing with constitutional rights (as distinguished from privileges accorded by the Government, United States v. Babcock, 250 U. S. 328, 331) there must be the opportunity of presenting in an appropriate proceeding, at some time, to some court, every question of law raised, whatever the nature of the right invoked or the status of him who claims it. The second distinction is between the right to liberty of person and other constitutional rights. Compare Phillips v. Commissioner, 283 U. S. 589, 596-597. A citizen who claims that his liberty is being infringed is entitled, upon habeas corpus, to the opportunity of a judicial determination of the facts. And, so highly is this liberty prized, that the opportunity must be accorded to any resident of the United States who claims to be a citizen. Compare Ng Fung Ho v. White, 259 U. S. 276, 282-285, with United States v. Ju Toy, 198 U. S. 253, and Tang Tun v. Edsell, 223 U. S. 673, 675. But a multitude of decisions tells us that when dealing with property a much inore liberal rule applies. They show that due process of law does hot always entitle an owner to have the correctness of findings of fact reviewed by a court; and that in deciding whether such review is required, “respect must be had to *78the cause and object of the taking, whether under the taxing power, the power of eminent domain, or the power of assessment for local improvements, or none of these: and if found suitable or admissible in the special case, it will be adjudged to be ‘due process of law/” Mr. Justice Bradley, in Davidson v. New Orleans, 96 U. S. 97, 107.
Our decisions tell us specifically that the final ascertainment of the facts regarding value or income may be submitted by Congress, or state legislatures, to an administrative tribunal, even where the constitutionality of the taking depends upon the value of the property or the amount of the net income. Thus:
(a) No taking of property by eminent domain is constitutional unless just compensation is paid. But in condemnation proceedings the value of the property, and hence the amount payable therefor, need not be determined by a court. “By the Constitution of the United States, the estimate of the just compensation for property taken for the public use, under the right of eminent domain, is not required to be made by a jury; but may be entrusted by Congress to commissioners appointed by a court or by the executive, or to an inquest consisting of more or fewer men than an ordinary jury.” Bauman v. Ross, 167 U. S. 548, 593. In Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 695, it was said that “there is no denial of due process in making findings of fact by the triers of fact, whether commissioners or a jury, final as to such facts, and leaving open to the courts simply the inquiry as to whether there was any erroneous basis adopted by the triers in their appraisal, or other errors in their proceedings.” In Crane v. Hahlo, 258 U. S. 142, 148, the Court said in applying the same rule to a statute which allowed a judicial review of the facts only in case of “lack of jurisdiction, or fraud, or wilful misconduct on the part of the members of the Board”: “This *79afforded ample protection for the fundamental rights of the plaintiff in error, and the taking away of the right to have examined mere claims of honest error in the conduct of the proceeding by the Board did not invade any federal constitutional right.” See also, United States v. Jones, 109 U. S. 513, 519; Backus v. Fort Street Union Depot Co., 169 U. S. 557, 569.
(b) No taking of property by taxation is constitutional unless the exaction is laid according to value, income or other measure prescribed by law. But Congress has, with the sanction of this Court, broadly given finality to the determination by the Board of Tax Appeals of. the facts concerning income. By its legislation the jurisdiction of courts is limited to deciding “whether the correct rule of law was applied to the facts found; and whether there was substantial evidence before the Board to support the findings made.” Helvering v. Rankin, 295 U. S. 123, 131; Old Mission Portland Cement Co. v. Helvering, 293 U. S. 289, 294. Compare Cheatham v. United States, 92 U. S. 85, 88-89. No court may pass upon the correctness in fact, of any finding of the Board.
(c) The due process clause is not violated by giving in tariff acts finality to the valuations made by appraisers of imported merchandise belonging to American citizens. Hilton v. Merritt, 110 U. S. 97, 107. “It was certainly competent for Congress,” said the Court in Passavant v. United States, 148 U. S. 214, 219, “to create this board of general appraisers, called ‘legislative referees’ in an early case in this court, (Rankin v. Hoyt, 4 How. 327, 335,) and not only invest them with authority to examine and decide upon the valuation of imported goods, when that question was properly submitted to them, but to declare that their decision ‘shall be final and conclusive as to the dutiable value of such merchandise against all parties interested therein.’ ”
*80(d) The due process clause is not violated by legislation which requires a fire insurance policy to provide that the amount of the loss (and hence values) shall be determined by a board of appraisers; and that their decision, if not grossly excessive, or inadequate, or procured by fraud, shall be conclusive as to the amount of the loss. Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co., 284 U. S. 151.
(e) The due process clause is not violated by giving finality to assessments of value made for the purpose of ad valorem- taxation, although in those proceedings the opportunity for a hearing is far. less ample than under the statute here in question Compare State Railroad Tax Cases, 92 U. S. 575, 610; Kentucky Railroad Tax Cases, 115 U. S. 321; King v. Mullins, 171 U. S. 404, 429-431.
As we said in San Diego Land & Town Co. v. Jasper, 189 U. S. 439, 446: “We do not sit as a general appellate board of revision for all rates and taxes in the United States”; and in Coulter v. Louisville & Nashville R. Co., 196 U. S. 599, 607: “Of course, no court would venture to intervene merely on the ground of a mistake of judgment on the part of the officer to whom the duty of assessment- was entrusted by the law.”
Answering the suggestion of possible error in the final action of a board in valuing and assessing railroad property, the Court said in Kentucky Railroad Tax Cases, 115 U. S. 321, 335: “Such possibilities are but the necessary imperfections of all human institutions, and do not admit of remedy; at least no revisory power to prevent or redress them enters into the judicial system, for, by the supposition, its administration is itself subject to the same imperfections.” In Crane v. Hahlo, 258 U. S. 142, 148, the Court intimating that even judges may err in. their ’ determinations of fact, held that legislators might, *81in proceeding for the taking of property, act on “the policy that the greater good is sometimes served by making certain classes of decisions final and ending litigation, even though in a particular case the individual is prevented by review from correcting some error which has injured him.”
These cases show that in deciding when, and to what extent, finality may be given'to an administrative finding of fact involving the taking of property, the Court has refused to be governed by a rigid rule. It has weighed the relative values of constitutional rights, the essentials of powers conferred, and the need of protecting both. It has noted the distinction between informal, summary administrative action based on ex parte casual inspection or unverified information, where no record is preserved of the evidence on which the official acted, and formal, deliberate quasi-judicial decisions of administrative tribunals based on findings of fact expressed in writing, and made after hearing evidence and argument under the sanctions and the safeguards attending judicial proceedings. It has considered the nature of the facts in issue, the character of the relevant evidence, the need in the business of government for prompt final decision. It has recognized that there is a limit to the capacity of judges; and that the magnitude of the task imposed upon them, if there be granted judicial review of the correctness of findings of such facts as value and income, may prevent prompt and faithful performance. It has borne in mind that even in judicial proceedings the finding of facts is left, by the Constitution, in large part to laymen. It has enquired into the character of the administrative tribunal provided and the incidents of its procedure. Compare Humphrey’s Executor v. United States, 295 U. S. 602, 628. And where that prescribed for the particular class of takings appeared “appropriate to the case, and just to the parties to be *82affected,” and “adapted to the end to be attained,” Hagar v. Reclamation District, 111 U. S. 701, 708, the Court has held it constitutional to make the findings of fact of the administrative tribunal conclusive. Thus, the Court has followed the rule of reason.
Fourth. Congress concluded that to give'finality to the findings of the Secretary of Agriculture of the facts as to value and income is essential to the effective administration of the Packers and Stockyards Act. The Ben Avon case, and the statements in Manufacturers Ry. Co. v. United States, and casual-references in other cases, should not lead us to graft upon the rule discussed, and so widely applied to other takings, a disabling exception, applicable to rate cases. In none of the rate cases relied upon was there any reason given for denying to Congress that power; nor was there mention of the many decisions in which the power to prescribe finality was upheld. -In none was there- noted the distinction between challenging the correctness of findings of fact on which rest the conclusion as to confiscation, and challenging the conclusion of law as to confiscation on facts found. Here, some reasons have been offered in support of making the exception ; but no reason given seems to me sound.
(a) It is urged that since Congress did not, and could not, delegate to the Secretary authority to prescribe a confiscatory rate, the facts in issue are jurisdictional and, hence, the Court must have power to review them. But, as was said in Oklahoma Operating Co. v. Love, 252 U. S. 331, 336: “The challenge of a prescribed rate as being confiscatory raises a question not as to the scope of the Commission’s authority but of the correctness of the exercise of its judgment.” Therefore, Crowell v. Benson, 285 U. S. 22, has no application here.
(b) It is said thát, since regulating rates is legislation, courts must have the same power to review facts which they possess in passing on the constitutionality of *83statutes—otherwise the supremacy of law could be impaired by delegation to an administrative tribunal of . a power to make final determinations that the legislature lacks. To that argument fhere are several answers. It fails to note that a rate order may be complained of as being confiscatory, not because of error in a finding of value or income, but because the regulating body has, in reaching its conclusions, ignored established principles or incontestable facts, or been guilty of dishonesty or of other irregularity in the proceeding. Whenever a legislative body regulates a subject within the scope of its power, a presumption of constitutionality prevails, in the absence of some factual foundation of record for overthrowing the regulation, O’Gorman & Young v. Hartford Fire Insurance Co., 282 U. S. 251, 257-258; and this rule extends to such action by an administrative body. Pacific States Box & Basket Co. v. White, 296 U. S. 176, 185-186. If there be in the record conflicting evidence as to the facts assumed, a court may not substitute its independent judgment for that of the legislative body. Mere denial of facts relied upon as conditioning the validity of legislation does not confer upon a court authority to decide what is called the truth; that is, the absolute existence. in reality of facts alleged. “Where the constitutional validity of a statute depends upon- the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.” Radice v. New York, 264 U. S. 292, 294. Here, the Court’s duty is to determine merely whether there was evidence upon which reasonable men could have found as the Secretary did, with regard to value and income. Obviously the -case at bar is not one in which “it was *84impossible for a fair-minded board to come to the result which was reached.” Compare Van Dyke v. Geary, 244 U. S. 39, 48-49.
Moreover, argument based on the analogy of the review of statutes fails to note the distinction between determinations of fact made in a quasi-judicial proceeding surrounded by all the safeguards which' attend trials by a court, and assumptions, or conclusions, as to facts made by a legislature on information which lacks those safeguards. It fails to note also the subsidiary character of the issue involved in a finding of value or income; and that it is only as to these subsidiary issues that finality of the finding is asserted here.
The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in which facts were adjudicated was conducted regularly. To that extent, the person asserting a right, whatever its source, should be entitled to the independent judgment of a court on the ultimate question of constitutionality. But supremacy of law does not demand that the correctness of every finding of fact to which the rule of law is to be applied shall be subject to review by a court. If it did, the power of courts to set aside findings of fact by an administrative tribunal would be broader than their power to set aside a jury’s verdict. The Constitution contains no such command.
Fifth. The history of this case illustrates that regulation cannot be effective unless the legality of the rates prescribed may, if contested, be determined with reasonable promptness. Six and one-half years have elapsed since the Secretary of Agriculture concluded that the rates of this utility were so high as to justify enquiry into their reasonableness, and nearly two years since entry of his order prescribing the reduced rates. In the judgment of the lower court and of this Court the attack upon the order *85reducing them was unwarranted. But the rates of 1929 have remained in force; and, despite the supersedeas and injunction bonds, there will be practically no redress for the wrong done to the business community throughout the long years in which excessive rates have been exacted. Neither party is chargeable with lack of diligence in the investigation or litigation; and there is no suggestion of undue delay on the part of either court. The long delay is due to other causes.
The investigation of the Company’s rates was ordered October 9, 1929. The hearing began December 2, 1929. All the subsidiary enquiries of fact commonly incident to applying the rule of Smyth v. Ames, 169 U. S. 466, were entered upon. After the hearing had closed, the Company sought to have it reopened for the admission of evidence showing how the changed conditions of business since 1929 would affect plaintiff’s income and the net return on the property used. This application was refused by the Secretary; and he entered an order fixing, maximum rates, which, on his valuation of the property and estimate of earnings, would have yielded a return of 7% per cent, if in effect in 1928. Thereupon, the Company filed a bill in the District Court to set aside the order on the ground that it would deprive petitioner of its property in violation of the due process clause. That court heard additional evidence, as well as receiving the record of the proceedings before the Secretary. It considered, but did not pass on, the merits. For it set aside the order on the ground that the Secretary should have acceded to the request to reopen the hearings. St. Joseph Stock Yards Co. v. United States, 58 F. (2d) 290. The new hearing was begun January 10, 1933 and did not close until February 16, 1933. Thereafter, the Secretary entered the order here under review; and the second suit followed which is here on appeal.
*86Sixth. The abstract of record made before the Secretary and submitted to the District Court for review consisted of 1648 printed pages of evidence, besides 111 exhibits, many being extensive; Twenty-two witnesses testified orally. The 71 exhibits certified to this Court alone comprise 1358 pages of tabulations or like detail. In addition they contain 18 graphs, -30 maps or photographs, and 600 pages of reading matter. Consideration of most of the evidence presented to the Secretary was deemed essential to a proper determination by the District Court of the issues of fact now controverted. Consideration of most of the evidence introduced below is now deemed by counsel necessary for a proper decision of .the case by this Court. The condensed narrative statement of the evidence other than exhibits fills 721 pages of the printed record in this Court. Seventy-one exhibits (although not required to be printed) were required to be transmitted to this Court as a part of the record before us. The number of pages of the evidence (including exhibits) before us bearing more or less specifically upon the question of confiscation is 2717. The total number of pages— briefs, exhibits, and evidence—before this Court is 3466.
The magnitude of the task involved in a judicial review which requires a determination by the Court, in its independent judgment, of the correctness of the findings of fact as to value and income which the Secretary made, cannot be measured by looking alone at the volume of the evidence. The multiplicity of the issues, and the character of the evidence bearing on them respectively, impose a peculiar burden. The findings as numbered and lettered by the Secretary total 215. The number of determinations of fact bearing upon confiscation involved in these findings is, roughly, 250, as gathered from the 108-page opinion of the Secretary. To decide whether any one of these 250 determinations of fact alleged to be errone*87ous is, or is not, correct, involves separate examination of the evidence relating specifically to it; since as to each of these determinations the reviewing court is called upon to make a decision, in the exercise of an independent judgment. Such a decision involves, in many cases, weighing specific evidence and resolving conflicts.
(a) There is controversy as to the extent to which property owned by the Company is used or useful.= That enquiry relates to 52 different items. The testimony and exhibits bearing upon this issue occupy 194 pages. On it there are approximately 50 findings. The correctness of only one of these is controverted here.
(b) There is controversy as to the value of the land. It consists of 60 different tracts. The testimony and exhibits bearing upon their value occupy 596 pages (the exhibits number 20). On this issue there are about 10 findings. The correctness of 3 is controverted here, dealing with the land in a single “zone.”
(c) There is controversy as to the value of the structures. It deals with reproduction costs; it requires separate consideration of materials and labor, of overheads and depreciation. The testimony and exhibits occupy 629 pages (the exhibits number 12). On these issues there are some 40 findings. Those dealing with depreciation are controverted here.
(d) There is controversy as to going concern value. The testimony and exhibits on this issue occupy 113 pages. The Secretary decided that no separate allowance should be made. That conclusion is controverted here.
(e) There are controversies as to the estimated income, as to the expenses, and as to charges. The testimony and exhibits bearing upon them occupy, in the aggregate, 663 pages (the exhibits number 42). . On these issues there are approximately 140 determinations. Of these about 50 seem to be controverted here.
*88The decisions by the reviewing court on the correctness of many of these determinations must depend upon its judgment as to the credibility of the witnesses. For instance, the Company insists, as to the land in one zone, that it is worth, on the average, 25 cents per square foot. The Secretary found it was worth 16 cents.. On that issue 5 witnesses testified.
This case, like a laboratory experiment, presents the task of rate-regulation in its simplest form. The rates to be regulated are but few in number. The rate base is ordinary stockyard property small in extent as compared with some plants. The Secretary valued it at $2,743,000; and the Company claims it is worth $1,010,-406 more. The Secretary found that, at the prescribed rates, the receipts would yield a net income of $195,564; the Company claims that it would not have been more than $81,026 in 1932 had these rates been in effect. But, under the prevailing view, an enquiry of the scope described was necessary, although involving hearings and lawsuits so protracted as to frustrate rate-regulation.
Seventh. The greater delay, and the cost, in rate investigations affecting the larger utilities, is illustrated by cases which have come before this Court in recent years.
(a) Chicago Telephone Rates. On September 13, 1921, the Illinois Commerce Commission, the regulating body, issued an order that the Company show cause why its rates should not be reduced. The hearing began November 17, 1921, and closed July 31, 1923. On August 16, 1923, the Commission entered an order reducing the rates, to become effective October 1, 1923. Before that date, enforcement was enjoined by the federal court, on a bill which charged that the rates prescribed were confiscatory. On April 30,1934, this Court sustained the validity of the rate order entered August 16,1923. Thus the rates became effective twelve and a half years after the com*89mencement of the investigation; and nearly eleven years after they were prescribed. -
On June 11,1934, the District Court ordered the Company to reimburse consurhers who had been charged excessive rates a sum estimated, in April, 1936, as almost $19,000,000; and, on July 23, 1934, directed that the lawyers who appeared for the consumers in and after 1929-should receive as fees an amount equal to 7% per cent of the refunds. By March 31, 1936, 1,163,515 payments had been made. The task of making the refunds, only three-quarters complete, has required a special force of 2,000 of the Company’s employees, and is said to have cost it (to November 30, 1935) $2,575,412.89. Over $2,100,000 remains to be disposed of or paid.
The transcript of evidence and arguments at the hearing before the Illinois Commission fills about 4500 pages; and there were besides more than 200 elaborate exhibits. The presentation of the evidence before the District Court at the first hearing on the merits occupied more than two months, resulting in a printed record of over 3000 pages of testimony and 281 elaborate exhibits. The taking of depositions for presentation to that court on the second hearing on the merits, and other preparations for trial, took over a year. The hearing itself occupied five months, and resulted in a record of 16,168 pages. The record on the first appeal to this Court consisted of seven large volumes. The record of the additional evidence on the second appeal to this Court filled nine volumes; and the appellant’s brief here, with appendix, nearly 700 pages.
The investigation of rates for Chicago continues. On July 10, 1934, the Commission asked the Company to show cause why its rates should not be reduced. The latter spent over a year and a half preparing its case for presentation to the Commission, at a cost, including a new appraisal and inventory, of more than $1,200,000. Hearings are now in progress.
*90For the history of the investigation and litigation, see in this Court: 269 U. S. 531; 282 U. S. 133; 283 U. S. 794; 283 U. S. 808; 292 U. S. 151; in the lower court: 39 F. (2d) 157; 38 F. (2d) 77; 3 F. Supp. 595; in the Commission: 7 Opinions and Orders of Ill. P. U. Comm. 1920, 888; 8 id. 1921, 372; 3 Opinions and Orders of Ill. Commerce Comm. 1924, 75-99; 6th Administrative Report of Directors of Departments, Ill. Commerce Comm. 1923, 975; 7th id. 1924, 1166; 17th Annual Report Ill. Commerce Comm. 1934, 3, 18, 42; 18th Annual Report Ill. Commerce Comm. 1935, 20. See also N. Y. Times, May 1, 1934, at 10; June 12, at 10; October 15, at 27; Report to Stockholders of Ill. Bell Telephone Co. 1935, 7, 8, 15.
(6) New York telephone rates. In the winter of 1919 the Company increased its rates. Protests followed; and on October 18, 1920, hearings thereon began before the Public Service Commission. On March 3, 1922, a temporary order slightly reducing certain rates issued. Enforcement was enjoined by the federal court on a bill which charged that the rates prescribed were confiscatory. Since that time, the rates prescribed, and to be prescribed, have been continuously under investigation and litigation.
Before the Commission there were, between 1920 and 1926, 189 days of hearings, 450 witnesses being examined orally. The evidence introduced fills, in the aggregate, 26,417 pages; and there were, in addition, 1,043 elaborate exhibits, one alone being in 22 volumes. Hearings were also held from January 28, 1930, to April 18, 1930. The opinions of the Commission in these proceedings fill 396 pages. In the District Court the hearings before the master occupied 416 days and extended over a period of four years, 610 witnesses being examined orally. They were recalled a total of 688 times. The evidence of that hearing fills 36,893 pages; and there were in addition 3,324 exhibits. The decree below was entered November *917, 1929. The Company’s counsel then labored two years in preparing a draft of the condensed narrative statement of the evidence required for the transcript of record on the appeal to this Court. On submitting this draft to counsel for the Commission, the City, and the State, many errors were discovered. On 3000 of the items, counsel disagreed; months were devoted to composing the differences; and finally the items on which counsel could, not agree were settled by the lower court. On November 14, 1933, more than four years after entry of the decree appealed from, the Company filed here a record of 5700 pages. On February 19,1934, that appeal was dismissed.
On May 2, 1934, the Commission instituted a new investigation into the rates of the- Company. Hearings began May 10, 1934, and are still going on. The subjects covered are again those required by the rule of Smyth v. Ames—reproduction cost, going value, depreciation, and so forth. Up to April 14,1936, 86 hearings had been had, stretching through every month but one since the beginning of the enquiry. One hundred and forty witnesses had been heard, and 10,840 pages of testimony taken. The exhibits already introduced total 397, one being in 34 volumes.
For the history of the investigation and litigation, see in this Court: 261 U. S. 312; 262 U. S. 43; 291 U. S. 645; in the lower court: S. D. N. Y. No. 23-252, in equity, May 25, 1922 (not reported); 300 Fed. 822; 11 F. (2d) 162; 36 F. (2d) 54; in the Commission: 14th Annual Report, Pub. Ser. Comm. (2d Dist.) 1920, 79; Report Pub. Ser. Comm. 1921, 13, 234-254, 369-389, 398-407, 447-458; 1922, 15; 1923, 13, 93-214; 1924, 13, 127-138; 1925, 13; 1926, 17, 170-273; 1927, 14; 1928, 18; 1929, 16; 1930, 42, 134-145, 213-294; 1933, 11. See also Report of Pub. Ser. Comm. to State Senate Relative to Rates of N. Y. Telephone Co,, Legis. Doc. No. 73, 1926 (254 pages); Report of Commission on Revision of N. Y. Pub. Ser. Comm. Law, Legis, *92Doc. No. 75, 1930, 28-31, 262-268; “Your Company and the Rate Decision,” a bulletin issued for the use of its employees by the N. Y. Telephone Co., 1930; Nathaniel Gold, “One More Telephone Decision,” 15 Nat. Mun. Rev. 419; “The New York Telephone Rate Decision,” 19 id. 180; “An Example of Rate Litigation and Its Significance,” 23 id. 584; John Bauer, “An Example of Futility in Present Methods of Public Utility Regulation,” 15 Am. Econ. Rev. 586; Leland Olds, “The Public Utility Issue,” 24 Yale Review (n. s.) 704, 706-707; New York Times, May 2, 1934, at 1; May 11, at 1; May 17, at 25; September 21, at 25; February 27, 1935, at 20; March 30, at 7.
Eighth. In deciding whether the Constitution prevents Congress from giving finality to findings as to value or income where confiscation is alleged the Court must consider the effect of our decisions not only upon the function of rate regulation, but also upon the administrative and judicial tribunals themselves. Responsibility is the great developer of men. May it not tend to emasculate or demoralize the. rate-making body if ultimate responsibility is transferred.to others? To the capacity of men there is-a limit.- May it not impair the quality of the work of the courts if this heavy task of reviewing questions of fact is assumed?
The obstacles encountered in the case at bar and in the regulation of the rates of the large utilities are attributable, in the main, to the Court’s adherence to the rule declared in Smyth v. Ames for determining the value of the property. In Missouri ex rel. Southwestern Bell Telephone Co. v. Public Service Comm’n, 262 U. S. 276, 289, I stated my reasons for believing that the Constitution did not require the Court to adopt that rule which so seriously impairs the power of rate-regulation. But since the decision of Smyth v. Ames is adhered to, there is the greater need of applying to cases in which rate-regulation is alleged to be confiscatory the rule of reason *93under which the Court has sanctioned, in other cases of taking, the legislative provision giving finality to quasi-judicial findings of value and income by administrative tribunals.
Surely, all must agree with the Secretary of Agriculture that: “If rate regulation is to be effective, there must come at some time an end of hearings and a decision of the questions involved.” In Chicago, Burlington & Quincy Ry. v. Babcock, 204 U. S. 585, 598, we said of valuations made by the State Board of Equalization and Assessment: “Within its jurisdiction, except as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is- the ultimate guardian of certain rights. The State has confided those rights to its protection and has trusted to its honor and capacity as it confides the protection of other social relations to the courts of law. Somewhere there must be an end.” Congress concluded that a wealthy and litigious utility might practically nullify rate regulation if the correctness of findings by the regulating body of the facts as to value and income were made subject to judicial review. For that conclusion experience affords ample basis.- I cannot believe that the Constitution, which • confers upon Congress the power of rate-regulation, denies to it power to adopt measures indispensable to its effective exercise.