The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-03-07
THE POWkR OF CONGREsS no
FIX RAILROAD RATES.
Mhere pora IL Como FromY

10 II EDITOR OF The SUN--Sir: The
olmpaign OF education upon the subject
Of railroad rates IA now at its height. As
We read speeches, magazine articles and
editorials, we cannot help remarking how
seldom those vino are engaged in the
discussion have asked themselves: Where
does Congress get the power to fix rates
at all?
Everybody seems to assume that the
power exists, while scarcely any one stops
to inquire whence it came.
In his letter Of May S, 1895, to the chair
man Of the Senate Interstate Commerce
Committee Attorney General Moody terms
it distinctly a governmental power residing
In Congress; and he points to the Granger
cases as having settled the question. A
distinguished predecessor Of his, Mr.. Olney,
has taken the opposite position, Neither
OF these lawyers has enlightened us very
much by argument sustaining or denying
the power.
The speeches in Congress Upon the Hep
burn bill have treated railroad rate fixing
almost solely from a political point Of view.
II now and then a speaker has touched
uponthe question of the source Of this power
it is only to remark by way Of passing
tiiup tilOlC 10 nv uOuD "ldloNOE aDouO tuO
power OF Congress to fix rates.
When Senator Foraker, however, opened
the debate In the Senate he presented a
clear and oogent legal argument worthy Of
the occasion. He does consider what he
properly styles "a most serious question:"
as to this power, and declares that man.
eminent lawyers are of the opinion that
when the Supreme Court decides the ques-
ton it will hold that Congress does not
have the power. He argues that since the
power to regulate the rate Of trans portation
between the States extends likewise to
foreign commerce, the impracticability Of
exercising the power in the latter respect
tends to show that it was not meant to
apply to interstate commerce. But the
Senator does not pursue the inquiry so far
as he m~ight-wisely passing to other points,
where he presents strong grounds for DEEM
ing the bill unconstitutional.
The gravity Of the simple question Of
the power Of Congress in the premises
renders its examination and discussion
profoundly interesting to the student Of
constitutional law. Notwithstanding an
almost universal impression to the con-
trary, the Supreme Court Of the United
States has never decided the question.
From present appearances the question In
not likely soon to be decided. Briefly
stated, there appear to be only W grounds
Upon which his power can be based. The
familiar clause of the Constitution reads:
The Congress shall have power to regulate com
merce with foreign nations, and among the several
States. and with the Indian tribes.
A power to fix rates must be either:
I,al,,Inl ,-,tlir thn qua 70 r1~,t1ata
commerce, or
2. Derived from a sovereignty over the
common carrier.
At first sight one is inclined to say that
fixing a railroad rate is regulating COM
merce. This first impression, no doubt, is
lodged in the minds OF a great many people,
but as we proceed to examine the meaning
OF the term regulate commerce. doubts
begin to gather as to whether fixing the
price Of freight or passengers is fairly
within the meaning of that term.
To regulate m is to provide
rules for the speedy and safe mode of trans
porting articles or passengers. This power
would extend TO preventing acts of extor-
ton. or unjust discrimination, because
such action hinders and impedes commerce.
To take another step and see in this power
OF regulation the right to say how much a
railroad shall charge for selling its trans
portation is something that gives us pause.
A statute may empower a municipality
to regulate the sale of firearms. This
does not mean that the municipal officers
shall fix the price at which a gun shall be
sold. Why? Because the object Of apply
ing the police power is to protect the public
from an indiscTiminate sale. The case is
not analogous 10 that of a railroad, since
the latter is a ommo carrier, but sup
pose a grocery establishment in a city close
to the State line sells its goods to customers
across the line and sends them over in its
own conveyance, would Congress nave the
right in regulating this transportation to
say how much the establishment should
charge for its goods?
1t is we'll to do a great deal of thinking
before concluding that fixing the price of
freight is regulating commerce"
The common law right of the sovereign
to regulate common ca rriers, and if need be
fix their charges, is conceded. Each of the
States at the time the Constitution was
formed possessed this sovereign W
That power extended no further than the
boundary line of the State. 1t is not ap-
IA rent tnlt a SIile Htu llb TlRnu TO TX q
charge for transportation over a territory
outside of its own. A theory has been
advanced that at the time of the adoption
of the Constitution the States invested the
United States with a portion of their SOW
ereignty over interstate commerce. Per-
haps so, but such grant does not appear
to have carried any power to deal with
commerce. beyond the State line. We may
readily get into a maze in our endeavor
to trace the origin Of this alleged power
over interstate common carriers to the
combined action of the States. We must
bear in mind, moreover. that there is terri
tory of the United States beyond that which
the thirteen original States controlled.
The object of this communicable is
merely to suggest one or two Illustrations
of the doubts and difficulties that surround
this most interesting inquiry. 1t may be
hat some master mind will grapple with
the problem and give us a clear and salts
flying view of the extento of the actual power
of Congress in this respect.
FRANK W. HACKFTT,