, 1890-12-25
Rail WAY COMMISSION

Il IVA M VA tCM-H/SS/ON
In the creation of a state railway
commission the most thorough re-.
gard must be had of the constI,u.
tlons both of the state and of thu
United States. Tho people want
the most effective commission tha,
can run the gantlet of the courts
There must be no mistake upon thI.
point
From time to time the REVIEW
has pointed out tho constitutional
law upon this most important aues-
ton. There yet remains one mora
consideration, and then, we believe
the subject will have been discussed
In these columns from every mate.
rial standpoint. In order for com,
mission to bring the best results IL
should have the power to fix reason,
able rates and to compel their OBJ.
servance by the railroads. 10 do
this, the supreme court of the United
states, declares IL must have judicial
powers. Can tho legislature equlp
1t with these judicial powers?
Section /, article 4, of the state
constitution says:
Tho judicial power OF the state shall
be vested in supreme court superior
courts, justices of the peace and such
inferior courts as the legislature may
provide.
To the REVIEW 1t seems that the
words ''and such inferior courts as
the legislature may provide" wero
added for the purpose of passing
just such power to the Legislature;
that realizing that new conditions
would necessarily arise, the const.
tutional convention prepared the
way for new courts by inserting
that important provision. a COM
mission with judicial powers would
be a court Of record, and 1t seems no
extraordinary constru uction of the
constitution to admit Il under that
language. However, attorneys are
found who place the opposite con.
struction upon the language.
The constitutionnliiy of such a
judicial commission Is questioned In
two respects:
First--By reason of the constitu.
tional declaration that the legsa.
ture shall establish rates, and
Second-Upon the assumption
that n judicial commission would
not be n "court" in the meaning Of
the constitution.
To the first objection we might
reply that the legislature has
power, under the circumstances, to
delegate that function 20 cominis-
sion; and to the second that such a
commission could probably pass
muster as n court.
But these two assumptions seem
to be Incompatible. That is, II the
commission Is II court In the mean.
Ing of the language of the constitu'
ton, the legislature has 40 power to
delegate the right to establish rates,
but must itselffix those rates.
But the supreme court of the
United States has decided that this
Is pre-eminently n question for judi
clal determination. That being the
case, is not that part of the state
constitution In conflict with the
constitution of the United States
made void? Would not this narrow
the proposition to the simple de-
claration that tho Legislature may
create railway commission and
define its powers and duties?
Such being the case, We find but
n single objection, and that Is tile
technical one that IA judicial com
mission would not be y court
within the meaning of tho constitu'
ton of the state. We are inclined
to take the broader construction.
Once that Is done we would be log
ically compelled to support state
railway commission invested with
the requisite judicial powers.