The San Francisco call., 1896-04-01
HOW RATES ARE L|MIT[0
They Must Be Equivalent to
Confscation Before Being De
clared Unreasonable.
RAILROAD IsRIGHTs DEFINED
Attorney-General Fitzgerald Advocates
the Validity of the Schedule Fixed
By the Commission.

Attorney.General Fitzgerald did hard
DAYS labor ye yesterday. 1t was all on be-
hall OF the peoples side in the railway
controversy and without fee, other than
the qualification necessarily derived from
the thorough performance of one OF the
most weighty duties of his office.
The argument being essentially legal
one without oratorical fireworks or clap
trap, was too dry for the average lavman,
and outside OF the persons directly inter
ested, the official shorthand reporters of
the court, the newspaper reporters who
were not in the least troubled with in
somnla, the artists who were obliged to
draw upon their resources to keep awake,
the lawyers, the clerk, the bailiff and
Judge McKenna. there was but one spec
tator, Barney Doherty, but he was a spec
tator only IN the Pickwicklan sense for he
mistook the courtroom for church, At
torney-General Fitzgerald for a seven
teenthly Methodist preacher and the
argument for sermon on the vanities of
human life, and therefore dozed and
nodded, and nodded and dozed again.
Judge Fitzgerald showed that he had
proited by the adjournment of two weeks,
Ior he had a pyramid of authorities before
uliH. I1c buIllCu HIS dll6ullOu llISl lO lIlG
discussion of the legality OF the acts Of the
Railroad Commissioners, and to the con-
stitutionality of the law creating the COM
mission. Its legislative powers were given
it by the constitution, he said, and it had
powers equal to those formerly held by
the Legislature with regard to the fixing of
fares and freight.
Tue argument advanced by the railroad
company to show that Commissioner La
Rue was disqualified was taken UP and
com bated.
Attorney-General Fitzgerald, after the
noon recess, proceeded with his argument.
He read from the concurring opinion of
Justice Miller in Minnesota case and re-
ported in the 156th volume United States
Reports.
In that opinion Justice Miller says that
the State has the legislative power to
establish the rate of compensation of COM
mon carriers But if those rates are ex-
orbltant so as to be a burden on the pa
irons of the road, or if they are SO low
that the property OF the carrier would be
destroyed or confsoated, there are reme-
dies for both of these evils, and the. only
way in which these remedies can be ap-
piled is by bill IN chancery.
Here Judge McKenna interrupted the
argument by remarking that he was afraid
that he did not understand the Attorney
Generals S argument. case is brought in
ground that the Railroad Commissioners
had established unreasonable rates and
the constitution says that those rates
shall be held to be conclusive in the
action. The defense is set up that the
action of the Commissioners is lnconsti-
| tutional, inasmuch as they have acted un-
reasonably. Gould Californian court
hear that defense2" inquired Judge Nc
Kenna.
Certainly they could" replied the
Attorney General. "Any law passed by
the Legislature is the law of the lSpG -,s,l-,.i
pronounced to be unconstitutional, end
when it is so pronounced IL is void and in
| operative"
| Judge Hayne remarked that it was not
necessary to go further than to say that
the validity of those rates was subject to
! judicial investigation, but the reason whv
| they are valid or Invalid is another matter.
| ''The rates fixed by the Railroad Commits
sioners are conclusive, short of confisca-
ton, " added Judge Hayne.
| Rates are never unreasonable" said
the Attorney-General, ''unless they are
conf scative."
"You have argued" said Judge Nc
| kenna, that the act OF the com mission
was Legislative act; that when they nave
acted, what they have done becomes the
law of the land. You have further
argued that what they did was bind
] tiiS upOh cNcINDOuy, cACeDL rs against
direct proceeding to set those
rates aside, and that in all collateral
proceedings they were valid. Now. would
not an inquiry by me into the reasonable
ness or unreasonableness OF those rates be
proper?'
THAT depends upon what you mean by
reasonapleness," suggested Judge Hayne
"1n all controversies, civil or criminal
the rates of fares and freights established
! by the State Commission shall be deemed
conclusively just and reasonable" con-
| tinued the court. "Shal the court stop
right there or shall it 60 further? And If
it go further is it to disregard the constitu-
tion?"
After some suggestions from the Attor
ney-General and Judge de Haven the
court with a smile remarked that the
! Attorney General might just as well go on
with his argument, but he would say that
the court did not understand it.
The Attorney General explained that
until there had been an attempt BY the
| proper officers to enforce those rates then
and only then, could the reasona5leness of
the rates be questioned.
! Judge Fitzgerald went cn with his argu-
ment and took up Mr.. Herrlns appeal to
the debates of the constitutional conyen-
| ton for the purpose of ascertaining what
was really meant by that convention.
That would be proper, he argued. where
| Gue ldHSudSc vi tIO CONSTITUTION was
doubtful or ambiguous Or meaningless or
full of contradictions. But in cases where
the act of the Legislature or the language
of the constitution shows upon it's face
what was intended by the Legislature the
| debates are not to be resorted to. The
rules of construction with reference to
legislative acts are somewhat different
from the rules of construction. as applied
to the constitutional provisions. ..You
can never look to anything outside of the
language of the constitution except where
that language is either meaningless or
where its provisions are contradictory.
Authorities were read in support of the
contention that the law contemplated that
common carriers should be allowed to
earn something, no matter how much or
how little, and that they should stand
unless they were so obnoXionsly nnreason-