Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1905-05-06


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.
Although it is not the province OF
the courts to enter upon the egisla-
| tive and administrative duty of franz.
| ing a tariff of rates for carriage, new
ertheless courts do sustain Il highly
important relation to the subject
proceed to- inquire what that relation
is, and what authority, by virtue of it,
the courts may exercise over the sub
jenlt of rate making. Rates fixed
/ by the Joint action of congress and d
commission have their source in leg
! islative authority. Therefore the e:ser-
else of the rate making power is sub
ject to- every limitation on legislative
authority imposed by the constitutions
4 The inquiry upon which | am abou!
to enter will show certain constitu-
tional provisions when limit the ex-
ercise OF that power by congress ana
any commission erected by congress
- similar provisions limit the eXer !.
eisa of the like power by the states.
/ The fifth amendment to the constitu-
ton provides inter ALA, that no PEI
son shall be * deprived of life
liberty or property, without due pro
cess of law; nor shall private proper
| ty be taken for public use without
just compensation" This amendment
| limits only the authority OF the ma
tional government, bat the fourteenth
| amendment limits the authority of the
state governments by providing that
no state Shall deprive any person OF
life, liberty or property without due
process of law; nor deny to any per-
son within its jurisdiction the equal
protection of the laws Though oncH
doubted, 1t IS now settled that the due
process of law required by the four
teenth amendment prohibits the talk
| ing of private property for public use
without just compensation.
| Out of these constitutional provis-
ions grows the authority of the courts
of the United States over the subject
of legislative rate II akng; the fifth
amendment being the source of au-
| thority so far as rate making is UNI
dertaken by congress, and the four
| teenth amendment being the source OF
authority so far as rate making is UNI
dertaken by the legislatures of the
states.
| I am of the opinion that the en-
| forcement of any rates prescribed by
national authority would be restrained
by the courts If they We're of such an
unreasonable character as would deny
to the carrier just and reasonable
| compensation for it's services, and
| thereby necessarily deprive it of its
property without just compensation or
due process of law. The authority OF
| the court to inquire as to the charac-
| ter and effect of rates fixed legislat-
| lively, and to prohibit their enforce
ment, if confiscatory, is clear. More
over any law which should undertake
| to deprive the courts of this authority,
| in my opinion, would be unconstitu-
tional, upon the same reasoning by
which state law undertaking to do
this was held to be in violation of the
fourteenth amendment.
An action which congress may take
with respect to interstate commerce is
based upon this grant of power. /.
vests in congress the right to exer-
else the inherent governmental power
of control over the railroads. The
prescription of railway rates is reg
ulation of commerce and, therefore, IL
they are fixed by the authority of con-
gress at such point as to make 1t
more advantageous for the shipper to
transport his product to the ports of
one state rather than to the ports of
another state, the action thus estab-
fishing the rates would violate the rule
that mo preference shall be given by
any regulation of commerce
to the ports of one, state over those
of another" The reasoning in sup
port of this conclusion may be ac-
copied without agreeing to the con-
clusion itself. Congress may do many
things by virtue of it's power to regu-
late commerce which may have the
practical effect of promoting the
commerce of the ports of one state at
the expense, necessarily, of the ports
of other states, without thereby giving
a preference to those ports within tho
meaning of this clause of the consti-
tuition. The test seems to be whether
the action of congress is a direct pref
erence to the ports of one state over
those of another, or merely preference
which results incidentally from such
action; if the former it is in conflict
with this clause of the constitution;
If only the latter, tits not.
This act has been before the SUI
preme court repeatedly, and in many
instances dissimilarity of charges, ac-
cording to distance, has been approv-
ed, because, under the circumstances
of the particular case, they were not
unreasonable or unjust, and in no case
has it been supposed by court or
counsel that the clause of the con-
stitution under consideration had any
relevancy whatever to the subject. Yet
Lit is perfectly clear that the act of
1887, as interpreted by the supreme
court, established standard of charg-
es which, under the claim now made,
would be in conflict with the prohib-
ition of the constitution against port
preferences.
I conclude, therefore, that any law
for the fixing of rates, according to
the standard of reasonableness, impar-
TALLY and justice, or any action taken
by a subordinate administrative body,
in the execution of such law, would
not be obnoxious to article 1, section
8, paragraph of the constitution,
even If it resulted in dissimilar rates
to and from the ports of different
states.
Foley's Honey ard Tar contains no
opiates and can safely be given to
children. B. A. Morgan.