The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1906-04-03
In Advocacy of His Amendment
to the Rate Bill.
CANNOT DODGE COURTS
Would Therefore Make Provision
for a Review.
Explains His Opposition to the
Esch-Townsend Measure.


of Kansas today addressed the senate
in support of his amendment to the
railroad rate bill.
Mr.. Long traced the development of
the doctrine of the judicial review of
rates made by law and showed that
rates of a commission could not be
made final beyond the power of the
court to inquire into certain questions
in relation to them. He contended that
the decisions OF the supreme court clear
ly showed that before a court will set
aside a rate made by legislative au-
thority. it must clearly appear that the
rate is so unjust or so unreasonable as
to amount to taking property without
/ just compensation that the courts will
only interfere with rates made by legis-
lative authority when they are conhsca-
tory and they have defined conhscatory
rates to be those which dom give a fair
return on the property employed in per
/ forming the service. Rates could not
| be fixed SO low b. congress or by a
commission, said Mr.. Long, as to leave
the property of the carrier in the hands
/ of the owner without any remunera7
4 ton for its use.
It is a Judicial question, he said, to de-
/ termine whether the maximum rate fix
/ ed by the commission permitted a fair
return on the property employed in per
forming the service and congress could
not and would not interfere with this
Judicial function. He declared that all
the rights Of the carrier were amply
/ protected under the present jurisdiction
Of the court which would not be re-
stricted or enlarged by this bill.
Mr.. Long agreed with Mr.. Knox that
a bill cOnferring the duty on the com
mission to set aside a challenged rate
and substitute a maximum limit beyond
/ which the carrier could not go in fixing
re fTTfr rat ha aTax axTrT On
! or two theories: That the order Of the
commission was final, or that it contem-
plated a review of the commissions or
der by the court. This bill. he said, was
drawn upon the theory that the court
! would review the order but the question
was how far a court could go now in
reviewing an order Of the commission
( and how far they would go if a proVis-
ion for review was placed in the bill
Reasons for Amendment.
Mr.. Long stated that he would not
take the inconsistent position OF contend
ing that provision for review is now in
the bill and yet was unwilling to ex-
press such review by an appropriate
| amendment. For this reason he had
offered the amendment decided upon at
the White House conference. He agreed
with the senator from Pennsylvania that
| there should be no question of the right
| of the carrier that had Eeen injured by
an order of the commission to sue the
| commission in the United States circuit
court and stated that while he was sat
| ished with the house bill in this partic-
| ular yet in order to remove all question
| as to it's constitutionalty The offered the
| amendment giving the right to sue the
commission in the United States court
| and giving Jurisdiction to the court to
hear and demand the question whether
the order of the commission was beyond
! its authority or in violation OF the
rights of the carrier secured by the con-
| stitution. He believed that the courts
| would assert this jurisdiction under the
I bill as it was passed by the house and
he did not favor enlarging their present
jurisdiction.
Mr.. Long read extracts from the
speeches of Senators Lodge and For
aker. showing that they desired to
! broaden the review of orders of the
| commission by special statutory auth
ority. He contended that such provis-
ions would authorize the court to sit in
/ Judgment on the wisdom and policy OF
/ the rates made by the commission, or
set them aside if they for any reason
deemed them unwise or unfair. He con-
tended that such a provision for such a
! review would in effect transfer the
rate making powers to the courts
The Esch-Townsend Bill.
It was contended by Mr.. Long that
| the effort was being made to amend
! this bill so as to transfer the rate max
| ing function to the courts by providing
permit the courts to go into the whole
question of determining whether the
! rates were wise and fair and the
question of wisdom and policy and
substitute the Judgment of the courts
upon the questions which are for the
Judgment of the commission. Mr..
Long then stated why he opposed the
Esch-T Townsend BILL believing 1t was
unconstitutional in that 1t attempted
to confer the rate making power upon
a 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 ap-
7,arent in the ESch-T Townsend bill He
Relieved that while the bill. as it
passed the house recognized the right
of review and for this reason was not
omen to objection that it was uncon-
sfftutionaI because it prevented re-
view. yet he was willing to place in
the bill the kind of review that was
now exercised by the courts in the alb
sence of a statutory provision and that
the amendment that he presented was
offered to make the bill the more clear
and definite in this point
What Might Happen.
Mr.. Long stated that if there was
:, placed in this bill a provision for re-
view similar to the provisions in the
different states as shown by the doc
Of three things would happen:
First, the United States courts viii
follow a course similar to that taken
by the supreme court Of Minnesota
to exercise the rate making function
and confine their consideration of the
rate as they do now, to the question
as to whether it is confiscatory, and
as to whether the commission acted
within the authority of the law: or,
Second, the courts viii assume the
Jurisdiction, and If they do then we
II should not assume TO confer this