Evening star. [volume] (Washington, D.C.) 1854-1972, 1905-12-08
The Presidents Recommendation.


should take.
The Presidents Recommendation.
In his message to Congress President
Roosevelt recommends that the interstate
commerce commission or some other adj
ministrative body be given the power Ito
prescribe the limit of rate beyond which 1t
shall not be lawful to go-the maximum
reasonable rate as it Is commonly called
this decision to go into effect within rea-
sonable time and to obtain from thence on
ward subject to review by the courts.
Several bills and outlines of bills have been
prepared proposing TO carry out this recon-
mendation, either in letter or in spirit The
revised Esch-Townsend bill, the bill pre-
pared by the interstate commerce commits
sion and the outline of bill prepared by
Senator Elkins all propose to carry out
this provision specifically, except that the
Bsch-Townsend bill and the commission
bill both propose to give the commission
power to make minimum rates as well as
maximum and to fix differentials which
the President did not recommend. Except
for this departure from the Presidents mes
sage by these two measures each of the
three would be strict compliance with the
recommendation of the message, and yet
there is vital difference between the Ell
ktns outline and the other bills. That this
agreement with the massage and disagree
ment among themselves is possible is due
to the fact that the President did not un-
dertake to make specific recommendations
as to the method by which a decision of the
commission should be reviewed by the
courts.
All of the bills profess to provide for the
ultimate review of an order issued by the
commission in the United States courts. Yet
1t is contended by many senators that the
Elkins bill Is the only one of the three that
would provide for or permit any real review
of the real question at issue-that is as to
the reasonableness or unreasonableness OF
the rate or rates that had been challenged
1t was because Of this same failure Of the
original Esch-Townsend bill to provide for
the Southern railway referred TO 1t as
proposition to subject the railway property
of the country to commercial lynch law"
Senator Elkins proposes to provide that II
the court shall find that the rate fixed by
such carrier was not unreasonable unjustly
discriminatory or otherwise unlawful 1t
shall enter a decree setting aside such or
der" 1t Is apparent that this would bring
the question as to the original rate before
the court an dmake It the basi sof the pro-
ceedings in review.
Under either the Esch Townsend bill or
the commission bill. however, this would be
impossible. Both of these bills 1t is claimed
by those who have studied them seek to
limit the reviewing court to the single Ques-
ton as to the legality Of the order issued
by the commission. The theory under which
the commission would prescribe rates I'M
der either of these bills would be that it
was exercising delegated legislative powers
and its orders would be substantially laws
w.,h the same force as though each of
them had been specifically enacted by Con-
gress. 1t Is a well settled principle that the
courts will not review an act within the
discretion of the legislative branhc of the
government, and 1t is declared that 1t fol-
lows that an order of the commission made
under either OF these bills could only be set
aside on the ground that the constitutional
limitation of the legislative power had been
exceeded and that the rate prescribed was