Page:The Green Bag (1889–1914), Volume 19.pdf/174

 MONOPOLY AND THE LAW by a railway company in the future, which railroads are not owned by a few million aires, but they are owned by a vast number is no more than laying down a rule of action of people scattered throughout the breadth for future guidance. The court has power of the land, in every state. The earnings to declare that law unconstitutional if the of the railroads paying dividends upon their rates are so low as to deny the railroad securities are the basis of income of a large reasonable earnings, and amounts to taking percentage of the people, and form the basis private property without due process of law. of a large amount of our national wealth. I have no doubt that it is not within the power of Congress to delegate to the courts But, on the other hand, the charges for trans portation attach to every business, every the power to fix schedules of rates, or to fix enterprise, and every industry, and are the a rate for future use. This is an adminis very life blood of our commercial prosperity. trative power, that cannot be conferred Discriminations tend to build up monopo upon the courts. Neither is it practicable. lies, and deny to individuals the equal One of the great objects which was sought to be accomplished by the separation of the right of competition. The business of to day is done upon such a narrow margin of functions of government into three distinct profit that an advantage in freight rates branches was to prevent one from making may wipe out a business, destroy a com the law and construing it. The primary munity, build a monopoly or a city. Is it, intention was that there should be a judicial therefore, unreasonable that the regulation branch, which should stand between the of that which has become a public charge people and oppressive and unconstitutional should be in the hands of the law? Admin legislation. It may be said that, as the istered wisely, and safeguarded by the courts, court is the ultimate judge of what is a as it will be, it will prove a protection to reasonable rate, and as this power cannot be the business of the country, and will not taken away from the court, it is idle to vest this power in separate tribunals or branches injure railroad property. But undoubtedly the enforcement of its pro of the government; that it would tend to visions will create much divided sentiment; simplify the matter to confer it on the court. will bring up new questions for solution by the The argument is fallacious. It might as courts, important and far reaching in their well be said the court should promulgate effect, and will demand of the lawyers and rules of action in all human affairs, because the judges of this country the highest order the court could decide in advance whether of ability, courage, and good judgment, as the law is valid or not and what the law well as conservatism. should be. We believe that the interests The power to fix a schedule of rates is a of the country are best subserved by adher legislative and administrative power, and ing to the line of the division of the powers may be delegated by the Congress to a Com laid down by the constitution, and to the mission. The power to decide whether rates principle that rules of action for future con so fixed deprive a railroad company of duct, whether they involve personal liberty reasonable earnings, so as to take property or the rights of property, should be pro without due process of law, is a judicial mulgated by the legislative branches of the power and cannot be taken away from the government; that the courts established courts. It seems to me much confusion under the constitution are a sufficient guar has arisen in the discussions on this subject anty against oppression and confiscation or by not keeping clearly in mind the demar other unconstitutional legislative action. But it will be claimed by the ultra-radical cation between the powers of these two branches of the government. Congress has that whatever rate is fixed by the Commis power to pass a law fixing rates to be charged sion should not, and cannot, be reviewed