The Washington times., 1906-05-23
TEXAN DISCUSSES
HEPBURN MEASURE
Gives Reasons for Clause
I'm Its Judgment"
" BILL Is WEAKENED"
5. Il. Cowan Declares Allison Amend
ment Was Not Needed From
Legal Standpoint.
81 the - % - Washlnrton -.

To the Editor Of The Washington Times.
I wish 20 state my reasons Tor retain
ing the words In the Hepburn bin .4n It's
judgment"
the Allison amendment was not need
ed; no ore has been able 70 make any
argument 70 show its necessity based
on q syllable Of law except as announced
Ia the Minnesota milk case, which is in
no sense applicable 70 the language os
the bill as II stood without The amend
ment- In fact the argument fOT specific
court amendment was directed 10 the
point Of proving that the law must pro-
vice that t.le court shall have authority
10 pass on the reasOnableness Of the
commissions rates That is what they
were after. and that Is what they eX-
pect 10 get by the Allison amendment
coupled With striking out the words 'in
It's judgment" I believe they viii fan
IN this contention before the court, but
viii predict now that the argument
before the court Will be that the two
amendments evidence the intent on the
part OF Congress 20 allow the courts
20 revise the commissions discretion
1 am perfectly clear that II the words
IN its Judgment had been retained. the
Allison amendment would not have
given the court any greater power than
II had. I hope that striking them OUT
VIII not affect a different construction,
but IT Is 70 be regretted that Il was
done, because II iuiects an element Of
would not. IN nay opinion. exist.
'In its Judgment" Contention.
This much IS certain: Either Congress
may delegate 70 the commission the
discretionary power 10 fix rates con
fCrmable 10 the standard OF their iudE-
ment as 20 what Is just and reasonable
and what rates are proper 20 prevent IN
Just determinations and undue prefer
-
law IS void anyway II Il may then IL
should make IL clear that such discre-
ton IS 10 be exercised. and that Il Is
not 70 be subject 10 the standard Of The
court Judgment except 70 protect con
sutuuon2l rights ! marvel az the con
tcnton that these words ''in its judg-
iueat would render the law uucCn stf-
tuuOnal because IL delegates the U5.yer
Plies with equal forCe 20 the power 10
prescribe rates i goes 10 the very
foundation or the law The cOmpIexiJy
ot thought IN the mind which de-
c4ares "a favor Of the power of Con
gIeSs 10 eLthOrIze O commission y tx
rates and Il the same breath declares
authorize the commission 10 TX them
according 70 It's Judgment as TO what IS
Ee,tsona Ole, Is past conception.
The Allison amendment, coupled with
The elimination OF these words, may De
held 10 evidence "A legislative intent
that the commissions rates must con-
form 70 the actual standard OF Just
ana reasonable, as declared IN the first
section, and give the carrier the rfght 10
have the court determine from the facts
whether the commissions S rate nj that
standard according 70 the courts judg-
inenJ on the Facts. In This view OF IL
and II being So clear that the words in
It's judgment could by nd possibility
affect the constitutCnaiity Ct the bill
IL Is uncomfortable that those who favor
ed a narrow court review and who be-
ieVe Congress can give the power 10
the commission TO determine and pre-
scribe reasonable rates. should have
been so mistaken as 10 eliminate those
words.
II oug't 70 be made clear that the
rates fixed are by the standard OF the
Judgment OF the commission which fixes
them Up 20 the point that such rates
affect constitutional rights. that at that
point the discretion OF the commission
ceases and the power Or the courts come
into play rates SO fixed should stand
upon the same plane as If fixed by
Congress itself so far as the courts
power 20 enlOln IS concerned Surely
when IL is insisted that the amendment
Ike the Long amendment IS proper TO
expressly limit the power OF the court
10 constitutional grounds for injunc-
llDn, u means that up u that point the
commissions g discretion IS TO be the
measure OF reasOnableness- II so ulJon
u hat theory can anyone object 10 say
ing 50 who believes IN the principles
q the Long amendment or that that
Is the effect Of the bin without any
amendment or with the Allison amend
ment2
I am quite prepared 70 accept It as
sound argument that when power IS
conferred upon a commission TO TX \
schedule OF reasonable rates. that their
act IN fixing them i administrative OF
legislative VIII. hence in itS essentials
legislative act and that Therefore an
exercise or the Judgment o. The COM
mission. on this theory II NAV be uryed
that the words '-iC its Judgment" ere
surpiUsage. but when Il is considered
that provision containing express 5ur-
commissions orders IS added 10 the
questions which alone could be cOnSid-
cred II the act Of the commission 81 +,
exercise Of q discretionary power. and
that the language which makes il clear
" discretionary Is stricken out Il would
lend force 20 the Sontcrf-oS that the
court IS TO measure the commissions
discretion by the courts judgment
Again, II the conten-iO1 - sour that
the commission must OF ueCesSflv ex-
ercise its Judgment, what IS the OBJ
lection 10 expressly saying so? The
only plausible objection IS mat II the
statute does expressly say so. .hen the
standard OF rates fixed viii be he com
missions judgment and not tnat Of the
court. except when shown 20 violate
constitutional rights, and that with
those express words out or the way the
courts Will find II plausible to set up q
standard Of reasonableness acc0rdilE TO
its own judgment. :. H CONAN.
Fort Worth. Tex. Nay le. ISS.