Savannah morning news. [volume] (Savannah) 1868-1887, 1881-08-17

Able speech Of Judge w. ,. CHS
holm, of savannah.

ATLANTA, August 13.-EditOr Morning
Meas: Judge Chisholm concluded on We'd
nesday last his argument against the con-
tInuation of the law relating to the Railroad
Commission as 1t now exists, and in favor
of the conversion of that body into judi
cial and advisory tribunal, providing the
right Of appeal therefrom.
We imagine that we can best serve the
cause of constitutional liberty by copying
into this letter the quotations cited oy
Judge Chisholm in support Of his position,
that the Commission should not be clotneo
with legislative, judicial and executive
powers at one and the same time. AS lar
back as the time of Sir William Blackstone
it was regarded as essential to the preserVa-
ton OF civil liberty that these three powers
should be kept separate. Judge Chisnolm
read from marginal page 269 OF the first vol
ume of Blackstone's Commentaries, as
follows:
"In this distinct and separate existence OF
the Judicial power in peculiar BODY OF
men, nominated indeed, but not removable
at pleasure, by the crown, consists one main
preventative of the public liberty Wnlcn
cannot subsist long in any State unless Inc
administration of common justice be In
some degree separated both from the legls-
latiye and also from the executive power
Were 1t Joined with the legislative, the life,
liberty and property Of the subject would
be in the hands of arbitrary Judges,
whose decisions would be then regulated
only by their own opinions and not by
any fundamental principles OF law;
which, though legislators may depart from,
vet Judges are bound to observe. Were 1t
Joined with the executive this union might
soon be an overbalance for the legislative.
For which reason, by the statute OF 10 Car,
l, G. 10, which abolished the court OF star
chamber, effec ual care is taken to remove
all judicial power out of the hands OF the
Kings Privy Couuc ell, who, as then was
evident from recent instances, might soon
be inclined to pronounce that for law which
was most agreeable to the Prince or his off,
GERS"
Such was the strong language of that
eminent writer against the union OF these
powers in any one body OF men. Such was
also the view Of our own Supreme Court In
Beall VS.. Beall 18th Ga. Repts, p. 229),
where Judge Lumpkin, in delivering the
opinion of the court, cites this extract from
Blackstone, thereby sealing It with the ap-
prevail Of our own highest judicial tribunal.
And In that ease the court adds:
90 Indeed, there is no liber-
tY, II the power Of jpdging be not
separated from the legislative and en-
ec,Itiye powers. Montesquieu g, IL, chap:
6. In other words, the union Of
Rep, sos Or, as Mr.. Madison observes,
may Justly be pronounced the very definition
of tyranny. Fed. No. AZ. Or, in the language
Of Mr.. jefferson, is precisely the definition
OF despOtic government. Notes on Vir-
ginia, 1885,"
The present law gives the Commissioners
power to make rules and regulations which
H.. ill., a. 70 obi dar
penalty of not less than 81 900, or more than
S. 900; this is clearly grant OF legislative
power. 1t gives the Commissioners power
to say l0hey their rules have been violated
aud to prescribe the satisfaction to be rem
dered the agerieved party by the railroad
offending; these are judicial questions.
The Commissioners direct what a railroad
complained against shall do; judicial pre-
rogative, from the exercise of which by the
Commissioners there is no appeal, no re-
view. The Commissioners have established
a code of procedure for the conduct and ex-
ercise OF their judicial functions.
The law gives the Commissioners authori
ty, and makes 1t their duty, to institute
suit at law against offending railroads. This
is an executive function. This union of
| powers our own Supreme Court pronounces
| unconstitutional, calls 1t tyranny" and
| ''despotism.n In a case reported in 14th
Georgia Opp. "a S5 and 86) that C urt thought
| statutes should be complete as laws when
| they come from the hands Of the Legisla
ture, and not depend for their force and
| efficacy upon the action or will OF any other
power.
Without the action of the Commissioners
| the act of October 14th, 1879, is a dead
letter. Judge Woods decided that act con-
stitutioual in a preliminary proceeding
| The Supreme Court of Georgia has twice,
on final hearings, decided controlling ques-
tions adversely to Judge Woods conclu-
sions. Which will the people accept?
We have taken 80 much space on this vi
tai issue as to leave us little room for the
remainder OF Judge Chisholm's able argu-
| ment.
He insists that the present statute creates
privy council which acts on secret or pri-
vate information with despotic powers, and
| the fact that the present Commissioners
may not have abused them does not alter
the principle. Fresh from the level of com
mon citizenship, in their first report they
called the Governors attention to
| the very great powers with which this
act clothed them. They first admit that to
a majority of the board the business is 1eac,
| and then adds; 1.-THE powers bestowed to
accomplish these objects were very great |;
so large, indeed, as to fill US with = pro-
found sense of responsibility In their exer-
else" They say they experience no sense
l
use of these powers, which, like thumb
screaOs," take powerful hold, so that even
| litigation to test them is dangerous.
| "THUMBsCREws" In a free constitutional
government Dangerous TO apply to the
| courts for redress of wrong! Vain and
idle is the constitutional provision that guar
antees to all the right 10 apply to the courts
for redress of grievancesl
Another mischief in the law, and one
heretofore unhesrd of, is the risk which a
corporation would have TO run IN testing its
| constitu,iOnalty. A railroad must first dis
obey the law to make the test. 1t goes into
court as criminal, on evidence made by
| the prosecutor Not on a statement of facts
made by the prosecutor, but on q statement
| of theories, and that prosecutor ignorant of
the great principles which undeTlie the
operation OF perhaps the largest interests
| on this continent. and which have baffied
the brightest minds OF the past half century.
This very fact, that the law makes the
Commission prosecutor, operates against
common justice. 1t should rather be the
sIIGdQe and hold the scales equipoIsed be-
tween railroad and patrons.
Railroads are inanimate. The contest Is be-
tween citizens engaged in transportation on
| one side and those interested In railroads
! whether as owners or emplOyes--on the
other. The law makes the Commission the
| counsel of the patron as we'll as the Judge
| between the parties, and the very danger
suggested by Sir William Blackstone is
most likely to occur-that OF deciding In
the manner most pleasing to the
patron and so as to cover
| any mistakes which NAV have been made.
1t is but human to so decide, and unless there
is some peculiar virtue in the Commission
| issued to these gentlemen under the act of
| October 14tb, 1879, unknown In ordinary
commissions, they must of necessity carry
| Into their decisions and rulings the infrmi-
| ties and weaknesses common to us all. The
| railroads are the defendants, and under the
act are forced to submit their case to the
| decision of plaintiffs counsel.
| The effect OF the law is to make the Com
missioners managers OF railroads, rather
than regulators of freight and passenger
rates. as contemplated by the constitution
of 1877.
The rate-making power is given to the
| Commission. It was the intention of the
constitution to leave this with the railroads.
| 1t was made the duty of the Legislature to
pass laos from time to time to regulate rates
| by enacting statutes against unjust discrimi-
nation, eXtOrtion and rebates.
The rate making power should not be
separated from the expense account. This
principle is well illustrated by the expe-
| rience of the last six months under the
| Commission. Labor and supplies have
| largely increased ia price, but the Com
| missioners have not made any cor.
responding increase In rates. Fix rates and
not the expenses and there can be no pros
| perity.