Page:The Green Bag (1889–1914), Volume 18.pdf/173

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THE GREEN BAG

THE PROPOSALS FOR THE AMENDMENT OF THE INTERSTATE COMMERCE ACT By JOHN STRIPPED of the publicity features and the substantive law proposed in them — both good enough in themselves and doubt less needed at this time, the proposals for the amendment of the Interstate Commerce Act, as shown by the bills now pending in Congress, divide themselves into two main heads. On the one hand, there is a proposal to clothe an administrative body with power, when after complaint and investigation it shall have determined that a rate is unreas onable, to substitute therefor another rate to take effect within a reasonable time and the observance of the order enforceable by virtue of a penalty at so much currency per diem. On the other hand, it is proposed to allow the correction of rates and practices to be determined by the courts. The former plan seeks only to correct unreasonable and unjust rates, while the latter aims to correct not only rates, but as well to provide a rem edy for practices, if they shall produce discriminations forbidden by law. It is true that each of these schemes have their advocates, and that as there are many advo cates, so there are shade? of opinion. Ad' vocates of the former have their own individ ual and peculiar views concerning detail; those who favor the latter plan are equally as zealous in their individual opinions of detail on the grounds of expediency. Before considering which of these classes of proposals will furnish the best remedy, it is well to consider what it is that the Congress is trying to correct. It seems to be taken for granted that there is enough law, if properly invoked, to produce the death of rebates in transporting goods at less than the published tariffs. Recent movement by the government has shown prima foci? the existence of rebates, but as there are at least three ways of preventing and correcting the pernicious practice, it can hardly be urged

B. DAISH that there should be additional weapons placed in the hands of the executive. There is, however, no adequate remedy for the correction of an unreasonable and unjust tariff, nor for the discontinuance of practices which are found to produce discriminations now forbidden by law or forbidden under the substantive provisions of the bills now before Congress. We are then to seek to prevent two classes of abuses; first, unreasonable and unjust rates, and second, the discontinuance of practices which produce unlawful dis criminations or compel the allowance of a practice to another person or locality, if allowed to one person or at one place. The relief to be sought is to be preventive as far as rates are concerned, and both restraining and mandatory in the matter of practices. The proposition to clothe an administra tive body with power to correct rates and substitute a reasonable rate in lieu of one found to be unreasonable is truly unique. Unique, for the reason that it does not appear what the advocates mean by an adminis trative body; the term lacks precise definition in this country, and even the existence of administrative law has been denied by emi nent writers both in England and America. Where it is allowed at all there is no unan imity of meaning, due to "the fact that the function of administration, whose discharge administrative law regulates, has itself only recently been differentiated from the general function of government." What the advo cates of this system appear to mean by the term is that there be a body under political appointment, to which can be committed the power to do omnibus work. It must be borne in mind that the fixing a rate for the future is a legislative act; that the ascertain ing whether or not an existing rate is reason able, is a judicial function. Can it be that we are to seriously consider the placing of