Page:The Green Bag (1889–1914), Volume 18.pdf/174

 THE AMENDMENT OF THE INTERSTATE COMMERCE ACT the functions of two of the coordinate branches of the government into one body? Are we to overrule the Supreme Court in its opinion that "one branch of the government cannot encroach on the domain of another without danger." and that "the safety of our institutions depends in no small degree on a strict observance of this salutary rule?" It has been argued that because the fixing of rates is a legislative function, because the state legislatures have created railroad commissions with power to name rates, and because the Supreme Court has sustained such action as a correct exercise of the powers of the state legislature, therefore the Congress can do the same. This is argument only and poor logic and is not substantiated by any decision of the courts — for there has been no decision of the United States courts announcing this doctrine. In truth the text writers are unanimous in stating that the powers of Congress are far different from those of the state legislatures. The former has enumerated powers, subject to certain limitations; the latter have all the powers of legislation resting in the state sovereignty and are only limited by the constitution of the state. But, as the proposal seeks to cover only rates, the least of the causes of complaint, it would fall short of the mark, were it not unconstitutional. The advocates of the "court plan " are divided into two main lines; one seeks to allow the machinery of the judicial system to be started by the individ ual, and paid for by him as well; here is to be determined the reasonableness of the rate and then, if the question be resolved in the negative, the petitioner is remitted to a commission to have it ascertain the amount in units of currency and weight what will constitute a reasonable rate. The other class would have a body, in whom would be detecting, investigating, and prosecuting powers, to whom the injured party may com plain and if justified in his position, to insti tute, in the name and at the cost of the

United States, a proceeding in a special court with equity powers. The objection to the first mentioned court plan is that one would never arrive at a definite conclusion. Assume there be in force a twenty-cent rate. Assume that there is some shipper whose pugnacity, bank account, and time were so constituted that he would undertake to employ counsel and prove that this rate is unreasonable. Assume that he prove his case. He must undertake another proceeding before the commission and prove what would be a reasonable rate, and we will assume that the commission order the carrier to put in a fifteen-cent rate. The carrier, whatever may be the right of the matter, will feel that a reduction of twenty-five per cent, is too much. It will file a bill to enjoin the opera tion of the order of the commission, on the grounds that the proposed rate is confiscatory, that the carrier has not had the con stitutional guaranty of "due process of law" and perhaps allege other reasons. The courts are preeminently the guardians of constitutional rights. The operation of the order is stayed and the case goes merrily on until the time occupied in Jarndyce v. Jarndyce would be as but a day. The other court plan merits careful con sideration. It provides for retaining all the weight of the present commission in media tion between the shippers and carriers, and it must be remembered that about 8,000 cases have been amicably settled by it since its creation. It retains all of the detecting and investigating powers of the present commission, so that there is no necessity of a complaint to it to bring about a correction. It provides for the correction of rates, if they be unreasonable and unjust, and for the discontinuance of practices which are pro ductive of discriminations forbidden by law. It does not seek to initiate or make or sub stitute rates, but to correct them, through the same process which has characterized the disputes of parties for centuries. It pro poses that the carrier shall have the right to