The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1906-03-08
CONGRESS MASTER
Of COURTS BAILEY
Can Deny Power 50 AnnuI
Law Pending Appeal.
THEORY TO AID RATE BILL
Senator Says Constitution Has Made
All But Supreme Bench Subject TO
National Legislature.

Senator Bailey of Texas has developed
a theory of court review, which Just
now is the crux OF the situation in ra
legislation, such that, if it is sus-
tanned on investigation of court decis-
ions, II VIII put an end TO the contro-
Nersy over this phase of the reform
and apparently will remove all doubt
about the power of Congress 10 give
the commission unhampered authority
10 name and enforce rate.
From the beginning OF this contro-
vsrsy' II has been urged by all op-
ponents Of regulation, and admitted by
all advocates. that there must be a
provision for consideration by the
courts OF constitutional issues: the
counts must have left to them power TO
determine whether property is in ef-
feet being confscated by the enforce
ment Of an unreasonably low rate.
Presidents Advisers Say No.
a coroIary question OF the courts can
be denied the right, when a carrier
charges that its property is about TO
be confiscated. 70 restrain the enforce
ment OF the order complained OF, pend
Ing judicial hearing on the merits. The
President has been the center of this
controversy. and the weight OF the
legal advice that has been urged upon
him has been to the effect that Con-
gress has no power of limiting this
right Of courts to interfere on behalf
of the property owner whose property is
alleged TO be endangered.
Now comes Senator Bailey with the
broad claim that there is only one Fed
e-al court whose jurisdiction is beyond
Congressional control, and that is the
Supreme Court. Ia substance, his ar
gument IS this:
The Constitution says that the judi
c.al power Of the United States shall
be vested in one Supreme Court. and in
such inferior courts as the Congress
may. from time 10 time, Ordain and
establish" The Constitution does not
oTdain or establish the district, the cir
cult, or the circuit court OF appeals;
Congress did that after the Constitution
was adopted. Therefore, Congress is
superior 10 these courts. and may limit
their Jurisdiction; It could abolish them
If il chose. They could not in fact be
IN existence without appropriate acts
of Congress TO establish them. And in
eSta bliShing them, IL IS necessary to de-
line their powers and Jurisdictions. This
Congress did that when il stablished
the Federal judicial system subordinate
10 the Supreme Court.
Due Process of Law Safe.
This reasoning. it is contended. does
not conflict with the right Of every man
to be secured against the taking OF his
property without due process OF law"
Due process of law need not necessarily
be . process administered in a particular
case by the district court, the circuit
court. or the circuit court Of appeals.
1t may be defined by law as process
over which only the Supreme Court shall
have Jurisdiction.
Following this logic. the argument is
applied to the matter Of rate regulation.
The law may, If this contention is cor
rect, give the commission power to
fix rate; il may provide that the rate
may be attacked in the courts; and the
courts may hear and decide the issue.
But unless the law shall so specify. the
subordinate courts would not have the
power to do more than render their de-
ciSlOns, TO be enforced except in case
of appeal. If there should be appeal,
then the inferior court would have to
be governed by the terms Of the law
on suspending the rate, pending the ap-.
peal.
Can Grant and Deny.
It is competent for Congress to give
this right of suspending the rate; and it
is likewise competent for Congress TO
deny the right
This theory is an entirely new one
II is injected into the controversy just
at a time when it is of the utmost in
terest Senator Bailey is widely recog-
nized as the greatest constitutional law
Yer in the Senate and one Of the great
est IN the country.
Further than this. IL is now claimed
that the Federal courts themselves
and admitted the restrictions of their
powers.