The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-03-29

WASHINGTON. March rs senator Knox
OF PENNSYLVANIA addressed the Senate to-
day on the railroad rate question. Il was
his first formal speech since he entered
the Senate. He received the closest
attention from his colleagues on the floor
and the audience in the crowded galleries.
Mr.. Knox said he agreed with the Senators
who have contended: First, that the power
to fix railroad tolls for transportation IL a
legislative power, and that when the Legisla-
ture has laid down a rule for the establish
ment of rates the application OF such rule
to specific cases h a matter of administra-
ton which may lie delegated to a commits
sion; and, second, that the power TO investi-
gate the reasonableness Of a proposed
rate, and to fix a rate for future observance,
is a non-judicial power which cannot be con-
ferred upon courts exercising the judicial
power of the United States. He added:
After giving the subject serious considera-
ton ] venturcd to publicly express the opinion
that the proposition that the national Gov
eminent should exercise supervisory control
over the taX upon transportation became
almost self-evident from the time that the
railroads began through various devices
to concentrate this taxing power In the hands
of a few men: that the Governments Efforts
10 check this concentration Of power under
the prOVlSIOnS or existing laws snoulu be
supplemented by legislation which will pre-
vent the abuse of the power of taxing the
movement Of persons and property under
any form Of concentration or under any
circumstances whatever; that a short ana
simple law wouli reach the root OF the
trouble. and thai it should provide that the
tolls collected by common carriers and the
practices pursued by them should be just.
fair and reasonable.
That the commiss ion should have the
power, If it finds the complaint WE'LL founded
10 declare what shall be a just, fairly re-
munerative and reasonable rate or practice
to be charged or followed In place OF the
one declared to he I'm unreasonable.
That this order Of the commission should
take effect within such reasonable time as
shall be prescribed by the commission in
the order, and should be final. subject only
u attack for unlawfulness In the Federal
courts, where it wouli have to stand or fall
upon its merits, and that such an act, with
suitable provision for the regulation OF Joint
rates and rates upon traffic of international
carriers. would go 10 the fun extent OF, and
no further than, the recommendations made
by the President.
subsequently, these tentative suggestions
were elaborated IN a bill which | introduced.
This bill, in my judgment, comprehends
an d deals with the misch iefs for which we
are seeking a remedy more efectualyt than
any measure yet brought to the attention
OF Con gress. 1t 10 broader and more com.
prehensive in its scope because 1t is as broad
and comprehens iye as the regulative power
Of Con gress under the Constitution.
have ventured the opinion heretofore
that regarded the bill under oonsidera-
lion nhe Hepburn bill unconstitutional.
! now repeat that opinion. and for the follow
ing reasons:
First-It does not provide any method
for challenging the unlawfulness OF the
ordars of the commission in q direct pro-
ceeding against the commission.
a Second 1t prohibits parties anected ana
secpiared by the commissions orders from
defending proceedings to enforce them upon
the ground of their uDlawfulness.
Third so heavily penalties the DISC
bedience of the commissions orders as to
make any attempt TO secure a judicial hear
ing in any form OF proceedings impracti-
cable.
These reasons combined manifest such an
intention to exclude inquiry into the law
fulness OF the acts Of the commission as to
bring the measure within the principle de-
cided in the case of the Chicago, &c, Railway
VS.. Minnesota, iA United States. namely.
that where the statute deprives the carrier
"of its right to a judicial investigation. by due
process of law, under the forms and with
the machinery provided by the wisdom of
successive ages for the investigation judi
cially Of the truth OF a matter in controversy
ii conflicts with the Constitution of the United
States"
1t is not possible to find in the bill a single
word comforting Jurisdiction upon any court
TO entertain a suit of any party aggrieved
by any order of the commission. Although
the commission is given power TO sue in
several cases, in no case is it made subject
to suit. 1t may sue to enforce its order.
but the parties bound by the order can only
deny the fact that the, order was regularly
made.
How can a commission administering q
law of Congress be sued without the con-
sent OF Congress? What interest has IL In
an order after it is made? How can q case
or controversy exist between II and a carrier
after il has performed its duties under the
act? If IL is replied that IL is the commits
sion's duty 10 enforce its orders by proceed
inRs in court. my answer Is that it is not q
duty under the terms Of the bill. but adiscre-
ton, and in such proceedings 1t is but a nomi-
nal party. Indeed, IL is not necessary for
IL TO be a party al all. as the right to en-
force the order is expressly given TO the
commission or any party injured through its
disobedie nee. and the bill expressly provides
that the merits OF thetorder cannot be tried IN
such proceedings.
The fact is that under the bill the orders
OF the commission can only get into court
In two WAYS. One / have just indicated.
In which the carrier cannot de feno' Inc
other is by suit by the United States to col
IeGI Dtnd lllfS " VI NhD SANN'
Both are by proceed inRs against the carrier.
In no way can the order be brought into
court by proceedings against the commits
sion.
It is clearly the purpose Of the bill TO pre-
clude in proceedings by the United States 10
collect penalties any consideration by the
courts NJ the validity of the order Of the COM
mission, and indeed IL would be a curious
consequence II an order made by the COM
mission could be practically annulled in a pro-
ceeding by the United states against the
carrier 10 enforce the penaltyto which neither
the commission nor the party who made the
complaint was a party. But apart from
this consideration II is evident that a carrier
could not afford TO take the chances incident
10 testing the commissions order in a pro-
ceeding To collect these penalties, because of
the extent 10 which IL would be benalized u
ito contention should not be sustained by the
= courts.
The bin confers no right of review whatever
upon the initiative of the carrier. Il seems
20 assume the existence Of some right in the
carrier 10 institute a proceeding in the courts