The Topeka state journal., 1905-12-22

finds that the order of the commission is
not lafruI order, it shall be set aside.
Difference in Plans.
The differences between these plans
are clearly apparent. Under the Foraker
proposition. the commission does not do
as much as it does now, but the authori-
ty to fix the future rate is imposed upon
the circuit in the first instance. Under
the ElkinS proposition, the commission
makes the order as it does now, but it is
the burden of proof when the question
reaches the court where it is finally de-
termined. The committee on interstate
commerce of the senate is still consid-
eTing the question and will not report
a bill until after the holidays. The
question is asked, What will that COM
mittee probably repOrt2 Its report will
very likely not favor either the Foraker
or ElkinS plans. The Foraker plan
would be a step backward and would
be an abandonment Of the commission
scheme that has been in vogue in many
of the states as we'll as the United States
and has been held legal by the supreme
court. It will probably not report In
favor of the Elkins proposition, for of
what avail would it be to permit the
commission to make an order fixing a
future rate if the whole matter is to be
tried anew in the courts? AS between
the two, the Foraker proposition is in
finitely preferable What bill will the
to assume that it will report the only
practical, effective plan that has been
suggested and that is one along the lines
of the recommendations of President
Roosevelt in his message. 1t will not
report in favor of a commission fixing
a definite rate for the future. That
proposal has been abandoned. It will
not attempt to take from the railroads
the rate-making power and lodge 1t IN
the government. It will probably report
in favor of giving the power to a
subordinate tribunal to investigate on
complaint a rate by the carrier, and to
determine whether it is reasonable and
lust and if it finds that the rate IS un-
rea sOnable, it will be given the power to
fix fairly renunerative and reaSona Die
maximum rate, above which the carrier
in fixing its new rate cannot go. The
carrier will be required to obey this or
der of the commission under heavy
penalties; and the order will go into
effect at such time as the tribunal may
designate This subordinate tribunal
viii not be a court but will be an ad-
ministrative body, subordinate to con-
gress. The constitution lodges IN con-
gress the power to regulate interstate
commerce rates and the courts have de-
cided that congress can declare py law
that the rates shall be reasonable and
lust and then leave to a subordinate lrlp-
unaI the fixing of a limit above when
the carrier cannot go in making the
rates.
se1sa that individuals own their stocks
and bonds. but they are public property
in the sense that they have duty TO
perform in relation to the public; Ihey
can be regulated and controlled by law.
viii provision be made Tor rgVl5m lev
of the order of the commission pg tne
courts? Whether such provision IS
made or not. the courts have that power
now and will continue to have it, and
any law that attempts TO prevent oI
restrict such review would be uncoh-
stitutionaI The courts can determine
whether the procedure of the comnlS-
sion has been legal and the oroef laW
fuI They can determine Wnethei ehe
maximum limit fixed by the coInlhlss!oI
is so low that the rate WouId Lot sIr0
fair return to the carrier on the prop
ertv invested in the railroad or so hlgh
that the rate would be extortionate 10
The contest in the senate will be
=, +ba question as to what direction
lI,,,I5 T1e given in the law to the
courts in reviewing orders maze py
tba commission. There will be an at
tempt made to permit the court -
trv the case anew, the same as thous1i
the commission had not passed upIll
II and modify the order fixing the
limit of the rate. I do not DeneFe
that this effort should be successful;
Of course. if the case IS to be tfleo
from the beginning IN the couIls' u y
of but little consequence what order
the commission may make Ihefe
sbouId no attempt be made IN the law
to restrict the power of the courts TO
INQUIRE fully into the lawfuiness of the
maximum limit fixed by the commls-
sion. and it would probably be better
not to attempt to restrict or enlarge
their present jurisdiction. Ihe car
rier must have its day in court, and
anv attempt to prevent it will render
the whole legislation void. If com
mission is given real power to deterrn-
bile with power to order it reduced
below a certain maximum limit, then
the tribunal which does this should
be made purely administrative II
should not have inquisitorial or prose-