The Washington times., 1906-02-16
Must Decide Whether or
Not MaXimumS Are
ConfScatory.
CONSTITUTIONAL RIGHT
Contentious of Both Sides
Are Gradually Clear
ing Up.

The constitutional question that Is
involved in the pending railroad rate
legislation has been discussed widely
and the discussions have led to varying
conclusions. Yet there does not seem
to be a great difficulty in understand
ing the character OF these differences
or the situation back Of them. The
exact statement, however, of the oppos-
ing contenttOns-and on this the fate
of the legislation in a large way de-
pends-has not been made clear in the
discussions thus far.
The Constitution reserves to Con
Eress control over interstate commerce.
That is plain enough. State commerce
is under control of the State; inter
state commerce comes within the juris-
diction of the Federal Government
alone.
Likewise, the Constitution provides
that property shall not be taken with
out due process of law. In other words.
CCngreSS. ia its attempt 10 control in
JeFstate commerce, cannot pass and en-
force a law that would be confiscatory
by reason of fixing too low rates or
imposing unjust conditions, compliance
with which would make il impossible
10 earn fair return on the Investment.
Depends on Courts Decision.
Between these two provisions of the
Constitution is the field which may be
occupied by Federal legislation. This
may be very broad field. or a very
narrow one; depending entirely on the
maj decision OF the court which in
terprets law.
IL Is assumed that Congress. under
tue provision giving il power TO rcgu-
ldtc interstate commerce. passes an act
liking set OF rates which may be
charged by railroads between the At
IanIc and Chicago. between Chicago
ana the Missouri river. between the
~ ;;Iiss9uFL river aud the basing centers
iH ttit mountains and between these
Dsts}hs points and the Pacific coast
Hgte IS uo discussion as TO the power
ol congress 10 do this And the rates
thus prescribed by Congress- vyo4,Id he
come effective at the time indicated nv
INC law The situation would be pa r
Lltsl 20 tine case presented il Congress
WpuiN pass a law To impose a customs
duty IN "a given class of IMPORTS T'Le
duty would so into effect at the time
speclHed by the act SO would the rate.
Congress Delegates Task.
HUt tn actual practice it is obviously
impossible Tor Congress to make q scheri-
ulc of rates There are millions of
rates ia effect IN the country. Congress
mas neither the time nor the special in
formation required to do such a work.
30 d delegates the task to a commits
sion The assumption. then, IS that
when tais task is delegated to a com
lllSsioh, ana tHc commission makes the
rates Jle act of the commission is
simply the completion OF the legislative
act IhuS Completed by the work of the
commission IN fixing the exact rate on
F" particular article between particular
points. the legislative intent has been
carried out, and the situation is as if
congress had itself fixed the rate in
so the completed law becomes effec-
i've The rate must be adhered to by
llC railroads Shippers may invoke it
ahd carriers must charge II. The only
question tuaL can be raised IS whether
u IS calculated 20 violate that other pro-
VISION of the Constitution that prom
efJN shall not be taken without due
process. That IS. il can only be charged
mat Jbe rate - SO low as to be coRfis-
Catory- And TO prove that a rate IS
sOHtlScatoTy Is practically impossible. 1t
might be- rate on hairpins from one
county seat TO another. How is the
railroad company to prove that it Is
ConIiScatoryE The particular rate does
not affect one-thousandth of the rev
cnuCS Of the road on business between
those points. il does not affect any other
revenues. To say il IS COnfSCatorV is
equivalent to saying that the failure of
: dcposltor TO make good 10-cent over
'raft Is wrecking bank with millions
d capital.
Former Decision.
This is the contention of the Admins
tati0n side. And in the only cases IN
which the point has been raised that
la.e was conhscatory, the highest court
he'd that there was no reason to as
Sune that this was true, because the
railroad company had introduced no evi-
deIce IN support Of its claim. There
was 10 evidence TO introduce. 1t would
be Practically impossible to produce eVi-
den'e that would sustain such a con
tentOn.
Bu the other side seems, when stated
Continued on Second Pagel