The Montgomery advertiser., 1905-03-20
|S RATE LAW
 UNCONSTITUTIONAL?
(UHATORS AND LAWYERS CLAIM TO
 HAVE FOUND DEFECT IN PLAN.
nnsas of Inquiry Soon. Walter Weilman writes of Efforts Being Made
 to Prevent Reform in Charges, .

writes of Efforts Being Made s to Prevent Reform in
 Charges. Washington Special to Chicago Record
 Herald. Walter Wellman.
 Is the railway rate scheme dead? Must 1t fail because of its unconstitu- tionality in the form it is now present. cd and the impossibility of making 1t constitutional without destruction of < tts usefulness?
 An important discovery has been made by the Senators who have been looking carefully into the proposed law. Lawyers representing the big railway interests of the country have prompted them as to where to find the obstacle that may prove fatal to the hopes of those who have favored such enact ment as that proposed in the Esch- Townsend bill. which passed the House of Representatives by a nearly unani- nous vote.
 Senators who have inquired into this matter admit that they are amazed and astounded at what they have learned. The constitutional objection which thus has been raised Is to form the subject of searching inquiry by the Senate committee on interstate com merce at its meeting a week or ten days hence to consider the Esch-Town- send measure.
 If the contention of the railway law yers is found to be sound-and many of the best legal minds in the Senate believe it is-then the prediction is made that the proposed legislation to provide government regulation of rates must fall by the wayside as an imprac- ticable project, completely blockaded by the Constitution of the United States.
 'The Congress shall have power" de- clares the Constitution. ito regulate commerce with foreign nations and among the several states" etc. But 1t also declares in the same section: No preference shall be given by any regu- lation of commerce or revenue to the ports of one state over those of anoth- er."
 The big railroad lawyers who have been assiduously looking for a weapon with which to kill off government reg uIation of railroad rates think they have found 1t in this constitutional provision. Their argument runs some- what as follows:
 place in the hands of the interstate commerce commission Is the power to regulate rates on the railways by mak- ing a rate for future application in the place of rate complained of and found to be unreasonable or discriminative. In other words. Congress Is to delegate its power to regulate commerce to a subsidiary tribunal Now, it happens that one of the most prolific causes of complaint on the part of committees concerning the rates made by the man. agers of railway companies is as to the differentials between the interior and the seaboard. For example, it is found necessary to the maintenance of rail- way properties and a proper distribu- 2 tion of traffic to give Baltimore or Philadelphia or New Orleans or Boston q lower rate per mile from Chicago than New York. These differen- tials are an important, a vital and an essential part of the entire fabric of rates throughout the country. It may be said. broadly. that a great majori- ty of all interstate rates are made with these as their basis or in harmony and sympathy with them.
 Actually it is impossible to carry on the railway business of the country without giving these differentials. the argument continues. If all rates from the interior to ports like Chicago, Buf- falo, New York Philadelphia, Boston and Baltimore must be made uniform. such uniformity would wreck half the railways in the country and effect a mighty crash in all industry and com merce.
 Yet tfs the government goes into the business of regulating commerce by establishing rates as proposed the mo- ment 1t makes a lower rate per mile to Philadelphia or Baltimore or Bos- ton than to New York the railroads which lose traffic through that decision will take the case to the Supreme Court of the United States and seek a decision. The railroad attorneys who have unearthed this dif1culty and the senatorial lawyers who have been im- pressed by their arguments declare they have no doubt as to what the de- cision of the Supreme Court would be. They believe the court at once would hold rate from Chicago to Baltimore lower than a rate from Chicago to New York on the mileage basis a prefer ence" to a port of one state over a port of another. and hence inhibited by the Constitution.
 It is admitted by the friends of the proposed railroad rate legislation that if this contention is sound the whole scheme must go by the board. The in- terstate commerce commission would lind it impossible to make many impor- tant through rates without coming in- to collision with the constitutional re- quirement that in any regulation of commerce there shall be no preference in favor of port of one state over the ports of other states. Whether or not the contention Is sound is of course. still an open question. A way to get around the obstacle may be found.
 But it is already apparent that the railroad people believe they have found the rock upon which the propos- ed legislation is to be wrecked They declare with confidence that govern ment regulation of rates that does not admit of preferentials from the inte- rfor to the seaboard is doomed from the start and they assert with equal confidence that the Supreme Court will uphold their contention that a prefer ential, fixed by the government itself, is contrary to the constitutional pro- vision.
 It is not claimed that the rigid per mile rate must be applied by the gov ernment to all tariffs; only to those which affect ports in different states. But such tariffs bear such an impor- tant relation to the entire fabric of rates that. in the opinion of the rail- road lawyers, the whole scheme is un- workable.
 Leading Senators predict that the House bill will never pass the upper branch nor anything like inc House bill. Some make shift may be found that in a masurt will satisfy public opinion without do 4v1er tho