The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-04-13
Judicial Review Inevitable.

There are three clauses Of the Federal
Constitution the faithful execution Of
which it is the duty of the President
and Congress to take care Of, The first
relates to the regulation Of commerce
among the several States. The second
forbids the deprivation Of property with
out due process OF law. The third pro-
hibits the taking of private property
for a public purpose without a just
compensation. All of them are to be
| reasonably executed. The three must
stand together. Congress is now greatly
exercised and perplexed over the exc
cution of the first one in presence Of the
last two.
Whether or not Congress can lawfully
prescribe traffic rates on all interstate
railways has not yet been adjudged by
the Supreme Court. Nor, IL Congress
can by vote lawfully make traffic sheets
for every article on each interstate
| railway; has it yet been finally adjudged
that the power can be delegated to an
agency.
Every one feels that it will be imprac-
ticable, if lawful, for Congress to vote
each and every railway rate. The most
it can be expected to do is to vote that
such rates shall be reasonable-not I'M
reasonable, arbitrary and in violation
of the second and third clauses of the
| Constitution just now referred to-and
then create ar agency to take care that
the rates Of the railways conform. The
| Supreme Court may deny that power Of
| Congress, under the clause to regulate"
commerce.
No one denies that the several States
can regulate and fix the rates Of railways
| chartered by the State. Each can make
| the rate a condition Of the charter; and
if its hands have not been tied by a valid
contract not to change the rates subse-
quently fixed by the railway, the State
can alter rates if it does not violate the
Fourteenth Amendment Of the Federal
Constitution. Such fixing and altera-
ton of rates is clearly a legislative power,
unless the rights Of private property
shall be thereby violated; but Congress
has not chartered all the railways whose
commerce it is now regulating.
1t should be kept in mind that ques-
| tons regarding the right of legisla-
tive power to fix rates beyond reversal
by judicial power have come to the
Federal Supreme Court from the several
States, and that they presented disputes
concerning legislative power under a
State Constitution.
IN tho RAILWAY naaaa which haya haan
before the Supreme Court from three or
four Northwestern States it seems to
have been inclined at first to say, as in
the Granger cases. that rate fixing
was legislative work, but finally by six
to three of the justices it was decided
TO be judicial work.
Probably the court did not, in the
Granger cases. intend to 90 30 far as
the obiter dictd Of the Chief Justice i'm
piled. At any rate the same Chief Jus
tice said in a subsequent case that legis-
lative power to regulate railway rates
is not a power to confiscate private prop
erty, and at last the court set aside a
Minnesota State law and rate procedure
for the reason that by imposing I'M
reasonably low rates the railway had
been deprived of property without due
process Of law" Regulation and spolia-
ton confronted one another.
The decision in 1889 Of that case was
fully assented to by only five Justices.
MILLER hesitated, but BRADLEY, GRAY
and LAMAR rebelled outright because, as
they said, the decision reversed the
Granger decisions" by making rate
fixing a judicial instead of a Legislative
function.
Mr.. Justice BRADLEY was an expert