New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1906-03-08
THE RATE BILL DEBATE.
Senator Clapp for Hepburn Meas
ure-SenatOr Scott an Opposition.

washington, March Two speeches on the
Hepburn Railroad Rate bill were delivered in the
Senate to-day. one by Mr.. Clapp Of Minnesota,
in support OF It, and the other by Mr. Scott. OF
West Virginia, practically in opposition
Mr. Clamp first considered the right OF Con-
xrcss 10 hx rates. either directly through
a commission, and that point said, in part:
The necessity and propriety of regulating
TRANSFORMATION rates are universally recognized
that the right Of carrier 10 fix rates lhde'
pendent Of any statutory regulation is, as a rule,
subject TO the requirement that the rates SO
fixed shall be reasonable. The question or gov
Ornamental regulation is no longer an open one
with US, having embarked upon that almost
twenty years ago. The authority OF congress
IS found in the fact that in those powers con-
ferred upon Congress the power Of Congress be-
comes plenaTy-as absolutely so as in any other
sovereignty-and restrictions upon that power
must be sought for in the constitution itself.
The power Of Congress TO regulate rates through
a commission would seem 20 be no longer SUD-
sect OF inquiry. The exercise Of that power, I'M
challenged to the power itself for the last
twenty years is supplemented by the declaration
Of the Supreme Court that Congress itself may
prescribe the rates or might commit 10 some
subordinate tribunal this duty.
Under the existing law, rate found too high
can he reduced; but in 1897 the court held that,
while the commission had the power TO con-
denim existing rate IL had no legal authority
20 name the new rate. And its power has been
confined 10 condemnins an existing rate ac-
cOmpanied by a suggestion as TO the new rate.
Being clothed with power TO condemn in turn
has had such force as TO result with but rare
exceptions, in the adoption OF its suggestion.
II is now proposed TO give the commission the
same legal authority TO name the new rate which
IL has TO condemn the old rate, with the same
legal force and effect.
The objection is made that this amounts to the
delegation Of legislative authority, but the Su-
preme Court has too often declared, in dealing
with state constitutions designed TO separate
the three functions Of the government thor
oughly the federal constitution that
mission could be employed in this connection.
Strictly speaking, a. is not the delegation of leg
islstive authority. The legislation speaks for
itself both as to what the law shall be and to
the effect Of IT; but as is so often done under
our form OF government. a subordinate tribunal
Is employed 10 perform some act in conjunction
with the legislative w-ill which in the end et-
fectuates legislation.
Under the existing law. II the order Of the
commission is not obeyed, the commission must
bring suit to enforce it's order The proposed
law is designed to change this. and give the
force Of law TO the commissions order, leaving
the carrier 10 avoid that effect if the order is
one which should not stand. instead of. as under
the existing law, leaving il open TO the commits
sion 10 establish its order.
THE COURT REVIEW QUESTION.
Taking up the question Of a judicial review of
the commissions rulings, Mr.. Clapp said:
Objection is made TO the fact that the bill does
not go into the details Of the judicial procedure
which the carrier may invoke. The bill proceeds
upon the theory that when a rate is fixed by
the commission il c0nsummates The act of Con-
Eress. and that II is no more necessary to pre-
scribe the details of the judicial procedure in
voVed in claim that the act amounts 10 the
illegal taking Of property than il would be if
congress named the rate in the bill itself The
hct OF congress Is the act of dealing with the
question Of the regulation Of a matter subject
70 os Iessional regulation. and in either case so
,ar as Congressional action goes is final But in
either case. as under any act of Congress in the
enforcement OF which a party claims unlawful
deprivation Of property the party making this
claim can go into court of equity and assert
his rights. The history Of the litigation result
ffa n 4Tn
and state. TO regulate commerce. is at almost
every step an investigation OF the power of "A
court Of equity 10 entertain, and the right of a
cltizen 10 be heard in a suit based upon the
alleged unlawful deprivation OF property
The further objection, however. is made that
tneie Is a broad distinction between the line
which marks the reasonableness of a rate in it's
reduction and the point OF confscation. But il
should be remembered that Congress only has a
right 10 reduce rate to a reasonable point
Down 90 that point the rate is the property of
me shipper. Below that point It is the property
OF the carrier. And. while there might be
vast difference Of opinion as 10 where the point
OF RESPONSIVENESS rested legal proposition.
carrier ana the pubic. More than that, the law
by express terms only allows the commission to
80 to that point; 10 reduce rate below that
point would be not only to invade the propertN
rights Of the carrier, but II would be in excess Of
the authority OF the commission And the courts
nave frequently used the word ''reasona bic" as
defining the extent of their inquiry when the
complaint has been made that the rate fixed was
destructive OF property rights
This proposed law goes a step further than
most public acts. and provides that the order
shall be in force and effect unless suspended or
vacated by court Of competent jurisdiction. II
has been urged that. pending examination
by the court the carrier might continue the old
rate. paying the esnerence into court for the use
OF parties who have paid the freight in the
court should ultimately sustain the rate
This IS open 20 two objections: First. the inn
possibility in a great majority OF Of deter
mining upon what particular individuals the
burden of the excess falls; and. second. il
presents a grave constitutional question. While
Congress can make administrative acts final So
FAR as the government is concerned, as in posta
matter and exclusion laws, and some other In
stances. and can make the order OF the commits
sion final, II cannot take from the citizen the
right 10 protect his liberty property by
plea 10 a court OF competent jurisdiction. Thus