Evening star. [volume] (Washington, D.C.) 1854-1972, 1906-04-03

of orders of the commission by special
statutory authority. He contended fhat
such provisions would authorize the court
to sit In Judgment on the wisdom ana pol
Icy OF the rates made by the commission.
or set them aside IL they for any reason
deemed them unwise or unfair. He con-
tended that such provision for such
review would. in effect. transfer the rate
making powers to the courts.
1t was commended by Mr.. Long that the
effort was being made to amend this bill
SO as to transfer the rate-inaking function
to the courts by providing for review oil
the orders that weud permit the courts
to go into the whole question of determin-
Ing whether the rates were wise and fair,
ana the question OF wisdom and policy ana
substitute the Judgment OF the courts upon
the questions which are for the Judgment
OF the commission.
Special Court Of Transportation.
Mr.. Long then stated why he opposed the
Esch-Townsend BILL believing it was I'M
constitutional. In that it attempted to con-
fer the rate-making power upon special
court of transportation. He said that the
Hepburn bill was drawn on different lines
and did not contain the fatal defects that
were clearly apparent in the Esch-Town-
send bill He believed that although the
DILL as 1t passed the House, recognized the
right of review. and for this reason was not
open to objection that ii was unconstitu-
tional because 1t prevented a review. yet
hO "oS WtiIitiE 20 place III Tue Dill tuc hfh0
of review that was now exercised by the
courts In the absence OF statutory provi-
sion. and that the amendment that. he pre-
sented was offered to make the bill more
clear and definite this point.
Various Propositions Considered.
Mr.. Long stated that If there was placed
In this bill a provision for review similar
to the provisions in the different states. as
shown by the document prepared by Sena-
tor Knox. one of three things would
happen:
First. the United States courts will fol-
low course similar to that taken by the
supreme court Of Minnesota, decline to ex-
ercise the rate-making function. and con-
fine their consideration of the rate, as they
do now to the question as to whether it is
confiscatory, and as to whether the COM
mission acted within the authority Of the
law; or. second. the courts will assume the
jurisdiction. and, II they do, then we should
not assume to confer this power on the
commission, when. in fact 1t Is to be eX-
ercised by the court on review. but we
should adopt the plan of the senator from
Ohio and impose the duty on the courts IN
the first instance; or, third. the Supreme
Court. following it's decisions and taking a
course similar to that taken by the supreme
court of Kansas in the court of visitation
case. will determine that this attempt to
confer upon the courts the legislative and
unconstitutional, for the reason that the
Constitution gives to Congress the power
to regulate interstate commerce, and Con-
gress can not transfer that power to the
courts, and this provision being; incorporat-
ed in bill that might not have been enact
ed without it, Is closely interviewer with
the other provisions of the bill that the
whole act is unconstitutional and void.
Continuing these propositions, Mr. Long
said: 'h the court should take the first
course under such a provision for review
as Is desired by the senator from Massa-
chusetts (Mr. Lodge and the senator from
! Ohio (Mr. Foraker) no injury would be
done and those who favor this legislation
would not be disappointed: but'if the court
should take either the second or third
course which I have designated-and l
think that one of these two courses would
surely be takeR--then the purpose and OBJ
tect of this legislation would entirely fall.
And SO while l believe that this bill
would not be held unconstitutional IN Its
present form, for it specifically recognizes
the right of review and cannot be con-
strued as an attempt to prevent n review,
yet I am unwilling to place In 1t provisions
that are more definite along this line. But
/ am not In favor of any provision for re-
view similar to those In the different states
to which reference has been made because
believe that such a provision would i'm
peril the constitutionality of the law and
result In it's being declared invalid by the
courts II a provision for court review Is
inserted In this bill that is so broad as to
be construed as imposing the rate-makng
power upon the courts 1t will be done With
out my vote,