The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1906-04-08

HO7 Pss sylvSnis .4vsnua
Wsshinqfsn, D. c.
an administrative agency-po wers that can
DO exercised only by the Legislative branch
OF the government itself, and that It
would be In direct violation, not only OF
the CONSTITUTIONS. but Of the Fundamental
principle on which this government :, is
based-.the separation of the legislative,
executive and, judicial powers Of govern
ment into three distinct branches, each
charged with Its own peculiar duties ana
prohibited from exercising any powers
not expressly conferred upon It by the
Constitution? a#
q It will not be disputed that u the Hep
burn bill proposes TO confer legislative
powers upon the Interstate Commerce
Commissioned part Of the executive
branch ol tho government-it is uncoh-
1stitutional. The questions presented, men.
are: What Is tho dividing Inc tnat
separates Legislative authority from, ad-
minIstrntive duty? Arc the functions pro-
posed to be imposed upon the commission
Legislative or merely administrative?
In a broad way, It may be said that
legislation involves the exercise Of dis
erection as to what shall he the rule while
administration involves the application
OF the rule prescribed by the legislative
authority. But certain amount OF DIS
c.etion can doubtless be 4 exercised by
administrative officials in some cases.
The exact line OF demarcation has been
laid down by the Supreme Court OF the
United States Just where 1t would logi-
cally seem 10 lie II the separation be-
tween the Legislative and executive
branches OF the government is % y %
maintained The exercise OF discretion
In determining what shall be q rule OF
action In the future IS a legislative func-
ton purely and cannot be delegated to
any administrative official or body, though
the Legislature delegate to an admins
.trativc agency the duty OF asccrtalning
the facts necessary to the application
OF the rule and can permit certain
degree of discretion as to It's applca lion
in some cases. This line of demarcation
was clearly marked out by the Supreme
Court OF the United States in the case
OF Field vs.. Clark. in which the court.
quoting and adopting as its own the
language OF Judge Ranney, OF the SUI
preme Court OF Ohio, said:
'.The true distinction is between The
delegation OF power to make the law,
which necessarily Involves discretion
as to what It shall be. and comforting
authority or discretion as TO Its
execution to be exercised under
and In pursuance of the law. The first
cannot he done: to the latter no valid
objection can be made
4 The question presented by the Hepburn
bill is as to whether the requirement that
the Interstate Commerce Commission
shall determine and prescribe what WILL
In it's Judgment, be the just and reason
able and fairly remunerative rate or
rates, charge or charges. to be there
after observed In such case as the max
mum to be charged Is an attempt to
confer on the commission legislative
discretion as to what the law or the
ruiz OF future conduct shall be s to the
particular case before the commission.
The language OF the court in Field VS..
Clark leaves little room to doubt that
the authority thus sought to be con-
ferred Is Legislative and not administra-
tive Whatever doubt might yet remain,
would seem to be eliminated entirely BY
tho opinion of the court In the Michigan
Railroad tax cases
The Michigan law requires the asses
sors to fix the tax rate on railroad property
in that State at the average rate at which
other property In tho State is assessed.
One OF the contentious of the railroads
was that this required the assessors to
perform legislative function. The
opinion Of the court, prepared BY Mr.
Justice Brewer. contained an oHter
dctum as to the power of Congress to
delegate legislative authority that would
seem to go directly to the point raised
by the Hepburn bill. After referring
to the separation Of the powers OF gov
a. tl&,.oo Il ~ 70 hn
opinion continued: I.
1T may therefore, be conceded that
an attempted delegation BY Congress to
K the President or any ministerial officer
or board Of power 10 fix a rate OF taxa
ton or exercise other legislative func-
tons would be adjudged unconstitu-
ltional." 5
1t can hardly he conceived that the
court would apply this rule to all attempt
by Congress to delegate tha power Of
fixing tax rate and would not apply
It to an attempted delegation Of power
tc Tx a freight rate. 1t has been Inti-
mated that when the opinion Of the
court Is officially published this feature
will be eliminated by Mr., Justice Brewer
In Difference to the views OF some Ut his
associates who arc not understood to dis
pute its correctness, but who believe tnat
1t Is not necessary to the decision Of
these particular cases, and that the court
should not go further in its opinion
than tho decision OF the questions before
1t requires.
Leaving this GLITTER dctum out OF the
opinion, however, It stlll points irre-
sistibly to the conclusion that the rep
burn bill would be held to be uncon-
stItutional, The court does not decide
the question Of whether State, II there
Is nothing In It's Constitution to prevent,
can delegate Legislative power without
Violating the Federal Constitution for
the reason that the point was not In
volved In these cases because 'there was
no abandonment ~ the Legislature OF
Its functions" The argument OF the
opinion by which 1t Is shown that there
was no attempted delegation OF legIsla-
tive power T the Michigan Legislature
shows conclpsively that the Hepburn
bill would involve suoh delegation. After
reviewing the method Of fixing the tax
prescribed by the Michigan law, the
Opinion saws. 6stsi- at 81