The San Francisco call., 1904-03-23
THE MERGER DECISION.

length and granting the premise, with conspicuous abl
ity.
The Call of the belief that ali the wisdom all
of the ability journalism to be found in the metro
potan press Both truth and propagated with
equal ability by the country press, and it influences
public opinion for right with as much power
the city press. Therefore take the opinions OF the
Searchlight as significant and forcible.
After declaring that the Federal have shorn the
Interstate Commerce Commission of the genuine pow
ers delegated to il by Congress, and that the State
have done the with the State Railroad Com
missions the Searchlight says This showing would
eectuay dispose of Justice Harans assertion
that the power OF Congress interstate
complete the power of State over domestic COM
for the of last in both have
denied these genuine delegated by Congress TO
the Interstate Commerce Commission and by the State
the Railroad Commission This gross and insur-
mountable inconsistency proceeds from the consttu-
onal mpossbiliy Of reorganizng and protecting and
ignoring and destroying and the time the
rights and privileges vested in the ownership of private
property"
An examination of the decisions the Minnesota
Texas cases, dscloses something quite different from
this. The have treated railroads entirely
private property but have recognized the right Of public
regulation The quasi public character of railroad prop
erty derived from the permission railroads
the right of eminent domain, in the condemnation of
right Of way.
The right a burning question in American politics
more than sixty When it demonstrated
that the construction of railways impossible, if the
corporations had deal with each of real estate
Tor right of way his land because he could re-
fuse sell all and thus enterprise right
to condemn asserted Now of private
property condemn his the private property
Of another. The right TO do public right Private
property may only be condemned for public use
paid for such may find be just
compensation
This question was first fought over in New Hampshire
where II disrupted the Democratic party. The fight
tended westward railroads extended and reached
the States of the Mississippi 1851 Railroads
cepted the Of condemnation and thereby accepted the
quasi public nature OF their property. But later on,
the sixties they resisted public regulation the ground
that provided for in their charters and fran
chises, and that these constituted invioabe vested
right In this view they supported by the decision
of the Supreme Court in the Dartmouth College
That doctrine finally overthrown and reversed in
the Granger because railroad property had become
quasi public through the OF the power TO condemn
private property for its purposes.
This opened up the whole question of public regua-
ton and the method of its exercise The States pro-
ceeded 10 by the of legislative execu-
tive power. When this issue it was discovered
that change had been made the Federal constitution
by the fourteenth amendment, which became operative
July z8 1868, and provided this: Nor shall any State
deprive any person Of life, liberty property without
due process OF law" As the power FIX railroad rates
the power take property from the benefit OF
another and affects both the shipper who pays his
money, his property for transportation and the railroad
company whose quasi public character there remains
element OF private property became important to
the meaning of due process of law One of
reasoners held that the legislative and executive
process another that the judicial process only
The latter position is obviously right Were oher-)
wise the legislative the executive could inic loss OF
liberty or life, without the agency of the courts.
In the Minnesota and Texas the Judicial pro-
cess was upheld We assume that it is this decision
which is held have shorn the Interstate Commerce
Commission and the State Railroad Commissions of
their genuine powers The mistake IS in assuming that
the powers genuine which obnoxious to the
fourteenth amendment.
Eliminating the element Of private property co-exst-
en with the quasi public character of railroad property
affirmation of the judicial process the process
of law still stands vindicated Therefore ineonsst-
ency appears in Justice Harlans decision Congress
the control interstate and the States over
domestic before, but provide for the
exercise of such control by due process of law.
In the evolution of the system Of control we will have
either the existing appeal from executive regulation or
the Interstate Commerce Commission and State Rail
road Commissions will be of first instance
entirely judicial in their character. and their decisions
will be subject to the appeal The nation and the
States retain and may the power over COM
nerce and may egisate against combinations to re-
trade by preventing competition, but the courts
have the last word That is all and it appears to us
perfectly plain and consistent The power of public reg
in the quasi public character of the prop
erty and right judicial process for protection
in the associated element of private property.