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THE GREEN BAG

In considering whether the public will be what, on the whole, is a reasonable rate be sufficiently protected by the exercise of a tween man and man, between railroad and power by a court to declare a given rate passenger, is in no sense a judicial question; extortionate, the subject should be looked it is a legislative and administrative ques at practically. An existing rate for trans tion — the legislative and executive branches portation being 25 cents per hundred pounds of the government may participate therein, the question in controversy will never be but not the judicial branch. The latter whether the railroad has • justly made it may, indeed, by a stretch of legal reasoning, 100 cents, nor whether a commission repre be allowed to decide, as a matter of law senting the people has justly made it 5 whether a low rate complained of is so lowcents. In the one such case a court would as to be confiscatory, or whether a high undoubtedly judicially say that the rate rate is so high as to be extortionate; but in was extortionate, and in the other that it the decision of the real common-sense busi was confiscatory. But a court would never ness questions of reasonable rates there is undertake to judicially pass upon the fair absolutely no judicial element whatever. The railroads further say that the mak ness of the raising of a rate from 25 cents upward to 30, 40, or 50 cents, nor upon the ing of innumerable rates is a complicated fairness of the reduction of a rate from 25 business involving deep and prolonged in cents to 20 or 15 cents. Yet within these vestigation and expert capacity; that the limits of 15 cents on the one side and 50 power must exist to make discriminations. cents on the other, hangs the whole ques to meet varying conditions; that the sys tion — not of an extortionate or confisca tem must be flexible, and that, therefore,, tory rate — but of a fair and just rate. the work must be entrusted to the railroad What the railroads wish to do is to slowly officials uncontrolled by any power. Thepush the 25 cent rate up to 30, 40, 50 — as sufficient answer is that original rate-mak far as the traffic will bear — and so pay ing power is not to be given to the Com interest and dividends upon as much as mission, but only a remedial power in special possible of the fourteen billions of dol cases which the Commission is in every lars of stock and bonds which they have way qualified to exercise effectively. And made the capitalization of the six or eight it is also obvious that if the Commission is. billions of value in the railroads of the unfit to do the work averred to be so trouble country. That there shall be some superior some and complicated, much more unfit ispower to determine how far they shall go the court; which is further disqualified be in this scheme seems to be a reasonable cause the question cannot possibly be made popular demand. a judicial one except when it involves only It should always be borne in mind that a decision whether a rate is so extremely three quarters of the ablest legal lawyers in outrageous as to be either extortionate or the United States are in the employ and confiscatory. The more important the rate riding on the free passes of the railroads, question, the more complicated and trouble and are constantly on the watch for an some a decision thereof, the more impossible opportunity to do their clients a service does it become that the people shall leaveby putting forth or countenancing legal it wholly in the hands of the railroads, and views hostile to the popular demands. One the more impossible it becomes to place it of these much insisted on is that rate-mak for any practical or useful purpose in the ing is a judicial question and that the In hands of the courts. terstate Commerce Commission cannot be Doubtless, before Congress acts, the rail invested with the judicial power to make roads will wisely conclude to drop subter rates. The idea is absurd. To determine fuges and to concede legislative and execu