Evening star. [volume] (Washington, D.C.) 1854-1972, 1906-01-28
WILL PASS THE HOUSE.
The Hepburn Rate Bill Not to
Be Materially Amended.
WILL BE FOUGHT IN SENATE
Question of Constitutionality to Be
Raised.
CERTAIN POINTS OF ATTACK
Decisions of the United States Su-
preme Court Quoted in Support
of the Contention.
ERTAIN POINTS OF ATTACK

through the House without any substantial
amendment whether it be considered I'M
der special order shutting out all amend
ments or not
III does not follow. however, that the bill
that will be finally agreed upon by both
Houses and sent to the President for his
signature will follow very closely the lines
of this measure. 1t Is believed. even by
members of the House. that the Senate will
have much to do In framing any rate Iesis-
lation that may be passed. The Hepburn
Dill Will be attacked in the Senate on the
ground that 1t would be unconstitutional
ana that II would go to dangerous lengths
in giving the interstate commerce COM
mission authority over the commerce and
industries of the United States
Those senators who agree with Mr.. Fora
ker of Ohio and Mr. Morgan of Alabama
that question as to the reasonab1eness of
a railway charge is judicial question that
must be passed upon by a court at some
stage of the proceedings will contend that
the proposition Of the Hepburn bill to have
TINS junction exercised by admlnistra-
tive commission would be held by the Su-
preme Court to be unconstitutional. They
point out that the Constitution provides for
the exercise of judicial power only by
courts, the judges of which shall hold
their offices during good behavior and shall.
at stated times, receive for their services a
compensation which shall not be diminished
during their continuance in office" They
also contend that the interstate commerce
commission does not come within this con-
stitutional definition of a court, and they
predict that the Supreme Court, always a
jealous guardian of the rights of the ju-'
dietary, would hold to be unconstitutional
any law attempting to empower a nom
judicial body to exercise judicial functions.
1t is contended further, that the Hep
the interstate commerce commission of
such a combination of legislative, execu
tive and judicial functions as would be in
clear violation. of the fundamental princi-
pies of the Constitution and it's division of
the government into three great depart
ments. 1t is declared that the Hepburn
bill would require the commission to sit as
a court and pass upon the judicial ques
ton as to the reasonableneSs of q rate and
then sit as a legislature and prescribe
new rate for the future.
The Supreme Court is quoted In support
of the contention that the Hepburn bill
would require the commission, in addition
to exercising its administrative functions.
to act both court and as Legislature.
The court has said: 1T is one thing to IN.
auire whether the rates which have been
charged and collected are reasonable-that
is a judicial act-,but an entirely different
thing to prescribe rates which shall be
charged in the future; that is a legislative
act"
In another case the Supreme Court. refer,
ring to attempted exercise of the rate
making power. said that it would be the
making of laws of wide import, destroying
some branches of commerce that have long
existed and undertaking to change the
laws and customs of transportation in the
promotion of what is supposed to be pub
lie policy.
1t is claimed that the fact that the Su-
preme Court would hold to be unconstitu
tional any proposition to combine legisla-
I,
interstate commerce commission, as Is pro-
posed by the Hepburn bill as shown by at
least two utterances of that court.
Supreme Court Rulings.
In the case of the Union Pacific railway
gafnst the United States the court said:
zone branch of the government cannot en-
croach on the domain of another without
danger. The safety of our institutions de-
ponds in no small degree on a strict OBJ
servance of this salutary rule" In the case
of Kilbourn against Thompson the court
said: 1T IS believed to be one of the chief
merits of the American system of written
constitutional law that all the powers in
trusted to government. whether state or
national. are divided into the three grand
departments-the executive the legislative
and the judicial: that the functions appro-
pirate TO each of these branches of govern
ment shall be vested in a separate body Of
public servants and that the perfection of
the system requires tnat the lines which
separate and divide these departments shall
be broadly and clearly defined 1t is also
essential TO the successful working of this
system that the persons intrusted with
power in any one of these branches shall
not be permitted to encroach upon the pow
ers confided to the others,s but that each
shall by the law of its creation be limited
to the exercise of the powers appropriate to
its own department and other
1t is argued that the declaration of the
| Supreme Court as to the nature of the
| functions to be exercised in condemning
one rate and prescribing another to replace
| it and the utterances of the court as to
| the separation of governmental functions
| by the Constitution indicate clearly that
| 1t would be a mere waste of time and
| energy for Congress to enact a law along
| the lines of the Hepburn bill. only to have
| IL declared null and void the first time 1t
| might be questioned before the Supreme
4 Court
| There are still other grounds on which
| the opponents OF legislation along the line
| of the Hepburn bill will attack the con.
J stitutionality of the measure.
Foraker Will Oppose the Legislation.
One of the leaders in the attack that will
| be made in the Senate on legislation as
! is proposed by the Hepburn bill will be
! Senator Foraker, who is one of the mem
| bers of the Senate committee on interstate
J commerce. and who has introduced a bill
| the basic principle of which is provision
| for the determination by United States
| circuit court of the QUESTION of whether
| a challenged rate is reasonable or I'M
! reasonable. Senator Foraker takes the view
! that this bill is not subject to any of the
| constitutional objections that can be urged
| against bills proposing to requkG the COM
| mission to exercise judicial and Legislative
| functions and that 1t would afford more
! speedy and more effective remedy for UNI
/ reasonable charges or other railway abuses
| than would be supplied by any other bill
| that has yet been presented in either house
| of Congress.
| 1t Is becoming apparent that the real
| fight IN the Senate is to be between the
| supporters of legislation giving to the COM
| mission practically unrestricted powers
| and those who believe that the law must
| be so drawn as to enable the courts at
! some stage of the proceedings, to pass
on the judicial question as to the reason
| ableness OF a rate.