The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1904-12-23
REGULATING POWER :
WOULD BE UPHELD
Supreme Court Decision Found
Which Foreshadows Dictum
of Constitutionality.
Special to Tho Journal.

Special to The Journal
Chicago, Dec, 23.-Walter Wellman,
in a. Washington special to the Record
During the last few days President
Roosevelt has sought the advice of the
best lawyers Of the senate and in his
cabinet, including Attorney General
Moody, as to- the legal aspects Of the
proposal to vest the interstate commerce
with the power to fix railroad freight
rates. 49,
The important discovery has been
made that the supreme court Of the
United States once clearly foreshad-
owed that If congress were to vest such
power in the interstate commerce COM
mission, the court would sustain the
constitutionality Of the grant or dele;
cation Of power. t....-- y
This discovery was made by prom
inent republican senator, formerly a
railroad attorney, who, until he came
upon this evidence that the supreme
court apparently had no doubt upon the
| question, was disposed to be incredulous
as to what the court might do were CON
gress to enact such law. '..cn..
The senator took his ;ssfnd = to the
| White House, where 1t was received
! with great rejoicing by the president
tional difficulties which a great many
good lawyers had, thought were in the
way of the proposed railway reform.
The Foreshadowing Decree.
The case in which the supreme court
lforeshadowed~ or at. least seemed to
foreshadow its attitude, was that Of the
| interstate commerce commission VS.. the
Cincinnati, New Orleans & Texas Rail
way company, which was decided by the
court May "a, 1897. In this decision
the court made it exceedingly plain that
it did not regard the interstate COM
with power which 1t had hitherto been
supposed to possess. The court held,
only Justice Harlan dissentlng:
We do not find any provision OF the
act that expressly or by necessary i'm
plication confers such power the power
to fix rates.)
1t is argued that the power to pas.
upon the rea sonableness of existing rates
implies right to prescribe rates. Thi,
is not necessarily so. The reasonabl eness
Of the rate, in a given case, depends Oh
the facts, and the. function Of the com
, mission Is to consider these facts ,ant
give them their proper weight. If thu
commission, instead Of Withholding judg
ment in such matter until an issue b.
! rate, that rate is preiudged by the com
, mission to be reasonable. e.
! The power conferred on the commits
a sion Is partly judicial. partly executive an
;. administrative. but not legislative.
o The text Of the opinion shows clearl,
/ that the court differentiated between
q approval Of an existing rate and fxin.
d new rate. To do the latter is t,
!, legislate, and the commission had n,
q power to legislate. 49, ..
d AS to Congress Power. d,
y The all-important question, lookin
, to the future and the success of tn
- movement now started to exercise gov
n eminent supervision over rates, wit
" the power to fix rates, is as to the cor
It stitutional power Of congress to dele
D gate it's legislative authority to sub
& sidiary tribunal. 80;
d To make a rate is legislative act
B. If congress alone can legislate, the
st there is no thorofare, because congress
- will never undertake the complicate
and well-nigh impossible task of NAL
ing railway rates. as it makes tart
ID schedules. May congress delegate thi
p powerF If it can, and the: act wi
n stand the test Of the supreme cour
1T then the problem may be regarded Z
IN settled. - .-......-s-, --... -.s.
s. If congress cannot delegate the lie,
e. islative function, then, practically, tt
lie government can regulate the rat'
Of made by the railway managers, b,
cannot Ak new rates which the railway
must enforce. 80 .--
President Roosevelt and his legal a.
TO visers think that if congress could
70 self\ make the rates, it could comm
he the power to subordinate tribuna
h he or it could content itself with me-
"a regulation and restriction Of rates tixe
nv, fha rai1roa1 mana oars 2s. 80