The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1906-04-09
MONDAY APRIL Q, 1906.
some people want throughout NE
urlef that should deeply touch them,
4 and thus t1umanlze and make them
capable Of sympathy.
IA - t-Hawthorno.
A Battle of Giants.

A Battle of Giants.
Tn Sundays Times Dispatch we pub
iIsl1ed two able and highly entertaining
communications from lawyer correspond
( ents. discussing whether or not Congress
NAV delegate to the Interstate Commerce
Commission tho power to determine ana
FIX railroad rates. One OF these was ny
Mr.. William L. Royal and the other py
a correspondent signing LEX" Neither
OF our correspondents knew that the other
was writing, ana it was m interesting
coincidence that their letters. diametr'-
cnlly opposed in essential points, should
have appeared simultaneously.
Mr.. Royal says that an idea seems TO
Is preyail In Congress that "due process OF
law entities the railroads to an appeal
before the rate that the commission cs'
tnblishcs goes into effect, but he holds
that the idea Is wholly erroneous; that
the United States Supreme Court has held
that tho whole scope and effect or tho
words "due process of law" are to entitle
person to hearing where he may
present his proofs, cross-cSnmne his ad-
yersary's witnesses and submit his arsp-
nent on the evidence; that when he IS
given that sort of hearing. he has all
that "due process Of law entities him to,
and the court, while repeatedly reaffirm-
ing this, has repeatedly held that due
process" does not entitle the party to an
nppeal after he has had this complete
hearing. II an appeal is given him, 1t Is
so much bounty.
Proceeding, Mr.. Royal says that he can
conceive OF no valid reason why Congress
may not, under this power, provide TOR
the regulation of rites by the Interstate
Commerce Commission. 1t Is also clear
4 Ia him that Congress can require the COM
y mission. when fixing rate to proceed
according to the methods OF judicial
tribunal But he further contends that.
while the methods of a court may be
employed, this is not case In which
Congress Is establishing a court. 1t is
regulating commerce and using judicial
procedure which It has perfect right
to do in the process. 1t Is not establish
Ing a court, but requiring its commission
when doing a commissions work to do
It according TO the methods of procedure
used in n court
Mr. Royal does not deny that, II the
commission, In disregard OF Its duty,
should impose q conflscatory rate. the
ordinary judicial tribunals would cnjoln
their Judgment, as they correct all species
OF Injustice; and that, though unnecessary,
provision can be made In the act for such
a case In entire harmony with Its main
purpose. y {,
Our other correspondent says that the
decision OF tho United States Supreme
Court in tho Michigan railroad tax cases
Indicates that the Hepburn bill Is already
a dead letter. II will not be disputed,
says he. that IL the Hepburn bill proposes
to confer legislative powers upon tho
Interstate Commerce Commisslon-n part
Of the executive branch OF the govern
ment-it is unconstitutional. Tho ques-
tions presented, then. are What Is tho
dividing line that separates Legislative
authority from administrative duty? Are
the functions proposed to be imposed
upon the commission legislative or mere
~ administrative?
lie holds that tho exercise OF discretion
In determining wi,n, shall be rule of
action in the future is n legislative func-
ton purely and cannot be delegated to
any administrative official or body.
~ In the Michigan railroad tax cases, the
opinion Of the court. prepared BY Mr..
Justice Brewer, contained an oblter die
tum as TO tho power of Congress to dele
gate legislative authority that would seem
to 80 directly to the point raised by the
Hepburn bill After referring to the sep
arauon OF the powers of government Into
three departments. the opinion continued
"t may therefore be conceded that
an attempted delegation by Congress tc
the President or any ministerial officer
or board of power to fix n rate OF taxa
ton or exercise other legislative func.
lions would be adjudged unconstitu
tional."
III can hardly be conceived" conclude.
our correspondent, that the court would
apply this rule TO an attempt by Congress!
10 delegate the power OF fixing Il ia.
rate and would not apply II 10 an at
tempted delegation OF power to fix {
freight rate"
In to-day's paper We publish anothe
article from Mr.. Royal. this time II
direct reply 70 the argumen, OF Lex"
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Mr.. Branch's Offer.