The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1905-05-06
Power in Accord With
Constitutional
Provisions.
OPINION Is GIVEN
Authority May Not Be
Delegated to
Courts.

WASHINGTON, May 5.-Attorney
General Moody to-day submitted an
exhaustive opinion to Senator EIlxins,
chairman Of the Senate Committee on
Interstate Commerce. as to the con-
etitutionality Of Government control of
railway rates. The opinion was pre-
pared at the request of the Senate
committee. and in it Moody holds that
there is nothing in the constitution
which prohibits such Government con-
troll. II is stated by the Attorney Cen
eral that such power belongs exclusive
~ TO the legislative branch of the Fed
eral Government. and not to the ju-
dicial department.
Your letter, supplemented by oral
communication. calls upon me to con-
slider the governmental power to regu-
late the operations of railroads es-
pecially IN the respect of fixing rates
Tor transportation, by whom that
power. so far as it exists in the Ma
tional Government, may be exercised
constitutionally, and what limits to the
power, II any, are prescribed by the
constitution.
After great consideration, ii was
settled in the group of cases COM
monty called, the Granger cases. that
there is a governmental power 70 regu-
Aate the operations of railroads acting
as common carriers and, as a part of
Such regulation, to prescribe the maxi
mum rates which they may charge in
the future for the services which they
shal render TO those who resort 20
them, and that the power is vested in.
and may be exercised by, the lesisla-
tive branch Of the Government.
Under the division of the govern
mental power made by the constitu-
ton Of the United States. the authorif =
70 regulate the charges of railroads, so
lar as those charges are made for traf-
nc which is exclusively within the
states, resides in the Legislatures of
the States, and so far as they are made
Tor other traffic. resides in Congress
NOT A JUDICIAL FUNCTION.
"Rate-making is purely a legislative
function, IN the performance Of which
the legislative body may avail itself
OF the aid Of an administrat tive body for
the execution in detail of general rules
which have been enacted into law
This is only another form of saying
that the rate-making power is not q
judicial function.
Assuming, then, that the rate-mak~
ing power is a legislative function and
sarily that, under our scheme of gov
eminent, Congress has not the right TO
vest ii in the courts either by con-
1errng original or appellate jurisdic-
ton over the subject
A case arising under the laws of
Kansas signaily illustrates the princi-
pie that the nature Of legislative and
judicial powers is such that they can
not be joined together and vested in the
same body consistently with the theory
that underlies the constitution of the
United States and those of many, If not
all, Of the States. A law of Kansas had
created a Court of Visitation and
united in that court many functions
which were clearly legislative in their
nature with those which were clearly
Judicial in their nature. Among other
powers conferred upon the court were
the legislative and administrative
power 10 fix railway and telegraph
rates. For the reason that this law at
tempted TO vest IN one body both leg
islative and judicial powers II was held
unconstitutional by the Circuit Court
OF the United States.
II conclude, therefore, that Congress
cannot confer. consistently with the
principles Of the constitution, upon a
court Of the United States, either by
way OF original or appellate jurisdic-
ton. the power to fix and determine
railway rates for the future.
CONSTITUTION APPLIED.
Although the rate-making power
must be exercised by Congress and its
administrative agencies. subject to
every constitutional limitation upon
the legislative power. the only other
provision OF that instrument which
seems now to call for consideration is
that contained IN article one. section 8,
paragraph six, which is as follows:
No preference shall be given by
any regulation OF commerce or revenue
TO the ports Of one State over those OF
another; nor shall vessels bound to or
from one State be obliged to enter,
clear or pay duties in another
The history OF the origin of this
clause, disclosed in the proceedings of
the constitutional convention shows
that the port preferences then under
consideration, which IL was desired to
prohibit, were only such as would re-
suit from discriminatory legislation
with regard to the navigation of ves-
sells. or the privilege and restrictions
which might be given or imposed upon
them or their freight.
1T is clear that the port preferences
forbidden by this clause are only those
which are direct in their operation ana
effect: and remembering that q port is
not the city which is built about II. but
the waterway itself, IL IS not easv to
BEE how any regulation Of commerce
which is not directed toward the use
o. the waterway .itself-but, on the
Dther hand, is confined In its direct
operation and effect TO land franenorfa