The Evening statesman. [volume] (Walla Walla, Wash.) 1903-1910, 1904-12-28
colIRT DECISION FOUND WHICH
FoREsHADoWs DIcTUM OF
cONSTITUTIONALiTY.
coal Aspects of Proposal to Vest
Interstate Commerce Commission
With More Power.

CHICAGO, Dec. 2S.-Walter Well
man in a Washington special to the
Record Herald, says:
During the last few days President
Roosevelt has sought the advice of the
best lawyers of the senate and in the
cabinet, including Attorney General
Moody. as to the legal aspects of the
proposal to vest the Interstate COM
merce commission or some other tri-
bunal with the power to fix railroad
freight rates.
The important discovery has been
made that the supreme court of the
United States once clearly fore
Swallowed that if congress were to vest
such power in the interstate commerce
commission, the court would sustain
the constitutionality of the grant or
delegation of power.
This discovery was made by prom
inent republican senator, formerly
railroad attorney, who, until he came
upon this evidence that the supreme
court apparently had no doubt upon
the question, was disposed to be in
credulous as to What the court might
do were congress to enact such law.
The senator took his find to the
White House, where it was received
- rnin inir NV hn n
because it seemed to clear the consti-
tutional difficulties which a great many
good lawyers had thought were in the
way of the proposed railway reform.
The Foreshaoowing Decree.
The case in which the supreme court
foreshadowed or at least seemed to
foreshadow it's attitude, was that of
the interstate commerce commission
VS. the Cincinnati, New Orleans &
Texas Railroad company, which was
decided by the court May "a. 1897. In
this decision the court made it exceed
ingly plain that it did not regard the
interstate commerce commission as al
ready vested with power which it had
hitherto been supposed to possess. TIE
court held, only Justice Harlan dis
senting:
We do not find any provision of the
act that expressly or by necessary
implication confers such a power (the
power to fix rates)
1t is argued that the power to pass
upon the reasonableness of existing
rates implies a right to prescribe
rates. This is not necessarily So The
reasonableness of the rate. in a given
case, depends on the facts. and the
function of the commission is to con-
slider these facts and give them their
proper weight. If the commission, in
stead of withholding Judgment in such
a matter until an issue be made ana
the facts found, itself fixes a rate. that
rate is prejudged by the commission
to be reasonable.
The power conferred on the commits
sion is partly judicial, partly executive
and administrative, but not legisla-
tive.
The text of the opinion shows clear
ly that the court differentiated between
approval of an existing rate and fixing
new rate. To do the latter is to
legislate, and the commission had no
power to legislate.
As to Congress- Power.
The all-important question. looking
to the future and the success of the
movement now started to exercise gov
eminent supervision over rates, with
the power to fix rates, is as to the
constitutional power of congress to del
egate it's legislative authority to a
subsidiary tribunal
To make a rate is a legislative act
If congress alone can legislate. then
there is no thoroughfare. because con-
gress will never undertake the compli-
Gated and well-night impossible task
tariff schedules. May congress dele
gate this power? If it can, and the act
will stand the test of the supreme
court, then the problem may be re-
garded as settled.
If congress cannot delegate the legis-
lative function, then, practically, the
government can regulate" the rates
', made by the railway managers, but
cannot fix new rates which the rail-
ways must enforce.
President Roosevelt and his legal
advisers think that if congress could
itself make the rates. it could commit
the power to a subordinate tribunal
or it could content itself with mere
| regulation and restriction of rates
fixed by the railroad managers.
ROB GRAVE TO BLOOM At BALL