The Topeka state journal., 1905-05-06

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Obviously. the question certified
raises two issues
First. could congress confer upon
! the interstate commerce commission
the power to fix rates which should
control in the futures
/ Second, if congress had the power
to do this, did the act under consider
alton confer upon the commission the
authority to fix rates which snould
control IN the future?
A negative answer upon either OF
these issues would dispose of the ques-
tion certified. The court saw fit to de-
eide both issues. It was held upon a
brief but sufficiently clear discussion
that congress did have the power to
confer upon the interstate commerce
commission the authority to NIX EuturS
rates.
But It does not follow that congress
has the right to confer the rate max
ing power upon a court. A body ex-
4 ercising the administrative power
/ which Z have described might be de-
/ nominated loosely a court and the
law would not be held unconstitu-
tional merely on account of the name
of the administrative body which it
| created II care were taken to exclude
from its functions the powers which
are described properly as judicial.
/ Assuming, then, that the rate maxi
! ing power is a legislative function and
not a judicial function, 1t follows nee
essarily that, under our scheme OF
] 5Of E0AAEAG A4e~1 AAGN liz A5--N
to vest it in the courts either by con-
ferring original or appellate Jurlsdic-
ton over the subject.
Kansas Court of Visitation.
A case arising under the laws Of Kansas
/ signally illustrates the principle that the
nature Of legislative ana judicial powers
/ is such that they can not be Joined TO-
/ gether and vested in the same body con
! sistently with the theory which underles
/ the constitution of the United States and
those Of many. if not all. Of the states:
= taW oA heAtise-s 4-ss4 u llso q Soel-e - -
! visitation and united IN thaE court many
functions which were clearly legislative
| in their nature with those which were
other powers conferred upon the court,
| were the legislative and administrative
/ power to fix railway and telegraph rates.
For the reason that this law attempted
to vest in one body both legislative and
judicial powers, it was held unconstitu-
States.
I conclude, therefore, that congress can
not confer, consistently with the pr1ncl-
pies Of the constitution, uDon court OF
the United States, either by way Of orig
inal or appellate jurisdiction, the power to
fix and determine railway rates for the
| future.
Rate Making by States.
The cases have decided dealt with the
exercise of the rate-lnaking power by the
states and It was condemned by virtue
| ment restrictive upon state action. The
same reasoning. however, would lead to
the same result IN considering the appu-
cation OF the f1th aEendment to the con-
stttution to TIE action of congress, or any
administrative body exercising such law
ful mowers over the subject as may be
conferred constitutiOnally by congress-.
am therefore Of the opinion that the en-
forcement of any rates prescribed by such
national authority would be restrained by
the courts if they were of such an unrea-
soma bic character as would deny to the
for its services and thereby necessarily de-
prive it of its property without just COM
pensation or due process of law.
/ The prescription of railway rates is a
| regulation Of commerce and therefore If
they are fixed by the authority of con-
gress at such a point as to make It more
advantageous for the shipper to trans
port his product to the ports of one state
rather than to the ulsIts; of another state,
the action thus establishing rates would
violate the rule that no preference shall
be given by any regulation of commerce
those Of another
Interstate Commerce Act.
The act to regulate commerce, approved
February 4. 1887. is worthy Of considera-
ton in this connection By it congress
undertook the regulation # railway rates
III comprehensive manner and laid down
important rules for its guidance. All car
riers engaged in transportation, wholly by
railroad or partly by railroad and partly
by water. were brought within its provis-
ions and the railroads running to and
from the ports were clearly included. It
Is enacted with regard 10 them that all
charges should be reasonable and just
(Sec. IL LnaL no person. or locality, or
traffic should be subjected to any undue
/ or unreasonable prejudice or disadvantage
(sec- 3D. and that there should not be a
greater charge Tor transportation for a
shorter distance than for a longer distance
over the same line under substantially the
same circumstances and conditions (sec.
q. This law was a legislative regulation
of railway rates and therefore subject to
all constitutional limitations upon the leg
islative authority. Moreover, the law
clearly did not contemplate uniformity in
rates as between different carriers. Dis
similarity in rates was expected, If it was
reasonable that dissImilarity should exist.
This act has been before the supreme
| court repeatedly and in many instances
dlsslullar1ty OF charges according to dis
tance, has been approved, because, under
the circumstances OF the particular case,
they were not unrea SOnaDle or unjust. and
in no case has t been supposed by court
or counsel that the clause of the constf-
: tuition under consideration had any rele-
Tancy whatever on the subject. Yet it
, interpreted by the supreme court 'estab-
t1sliSI a st1llCaLo ~ q SAdIseS winch under
with the prohibition of the constitution
against port preferences.
| I conclude, theref tore, that any law for
: the fixing of rates, according to the stand
/ ard of reasOnableness, imparuiaIity and
| justice, or any action taken by a subor =
dinate administrative body, III the exccu-
ton of such a law, would not be obrCx-
ious to article 1, section 9, paragraph s.
/ of the constitution, even If it resulted in
dissimilar rates to and from the ports OF
different states.
> Views Summed Up.
The views which have expressed may
T be stated briefly as follows:
2 l. There is a government power to fix
the maximum future charges of carriers
{ by railroad, vested in the legislature of
! the states with regard TO transoOrtatiO
exclusively within the states and vested
. in congress with regard to all other trans
portation
. 3 Although legislative power, properly
speaking can not be delegated. the law
making body having ena acted into law the
! standard fnF -h-17 -