The Montgomery advertiser., 1906-03-01
MIR. F0RAKER
 AGAINST BILL 0hi Senator Makes Notable Speech. ATTACKS HEPBURN MEASURE Says It Win Work Disaster to
 Certain Sections. Believes that Rebate Evil should bs stopped, snd Proposes Exfen-
 sion of the Existins
 EIkins Law.
ATTACKS HEPBURN MEASURE

today Mr. Foraler. of ohio delivered a notable speech against the Hepburn Deliver railroad rate regulation bill
 Mir. Forakcr conceded that some evils exist in connection with the rail- l roads. but urged that all of them could be more effectively met by amending the Elkins law> than by passing the pending bill. He announced his regret at differing from the President. but | said he could not see his way clear to pursue any other course
 | He gave general review of the his- I tory of the railroad development of the country and passed to the evils of | the systems which he said are neces- 1 sarily Incident to the upbuiiding of so | vast an interest His attitude towards the pending railroad rate bill was cor l rectly outlined in his first paragraph in which he said of the bill: "It is so l contrary to the spirit of our institu- tions and of such drastic and revolu- tfonary character, that if not in its | immediate effect. at least as a prece- dent. the consequences are likely to be most unusual and far-reaching. He discussed the railroad evils as of | three classes, excessive rates, rebates and discriniinations. He found little to complain of under the first heading,
 
 charges that are too high and he thought prompt and effective remedy ehould be provided.
 The Rebate Evil.
 4 more serious. evil he found in re- bates. and he traced the present ex- tensive railroad consultations to the fact that the Supreme Court decisions against pooling had left the roads with out protection from the rebate sys- tenn. except to resort to some general understanding. Referring to the El- kins law he said. There has been no serious attempt to enforce to prevent discriminations as to localities but a glance at its provisions will sufilce to show that it Is as broad, direct. ex- plicit ana efficient to remedy that kind of an evil, wherever 1t may exist. As it has beeu found to beras to personal discriminations- That the law has not been tested in this respect is not due to any fault of the law. but be- cause no one has seen it to invoke it.
 The faulty he added. Ifs not with the existing law, but with the officials who have not enforced it."
 Announcing his own position, he said:
 T believe in the court plan. as contra distinguished from the rate-ma king plan, not alone because 1t is much sim plerI much more expeditions; much more efficient and without expense to
 
 ali that, 1t avoids all legal and con stitutional questions, while the rate making plan as set forth in this bill encountered a number of snch ques- tions that are of the most serious char acter and some of them, in my judg- ment, fatal"
 Regarding the right of Congress to make rates he declared:
 The Supreme Court has never yet passed on that question and there are. many eminent lawyers who are of the opinion that the court will hold when 1t does decide the question that Con gress does not have that power"
 The Fatal Effect.
 Their reasoning" he said. seems to me to be sound. and the effect of it absolutely fatal to this entire scheme of Legislation"
 He has confirmed in this view he said, by the opinion of tho court in the Northern Securities case. He be- lieved that a remark made in reaching the conclusion In that case leaves the question open. He conceded that the different states have the power of rate fixing. "But he said the eases are wholly different
 "Manifestly 1t is utterly impossible for Congress by statute to fix all the rates for interstate commerce. It must resort to some plan under which it can avail itself of the help of some kind of board, commission, tribunal or agency. But when 1t undertakes to do this, it must take heed lest 1t un- dertake to do 1t in such way as to delegate legislative authority and thus make It's effort unconstitutional and unavailing, for 1t will be conceded that 1t is unconstitutional for Congress to delegate legislative power.
 Tt Is true that the Supreme Court has upheld statufes enacted by the states comforting this power in state commissions or commissioners, but it is also true that the precise question now presented, was not presented to the court In any of these cases. And 1t is also true that the Supreme Court of the United States has never upheld a state statute conferring power to make rates on railroad commission or commissioners as to that particular point which did not make the power so conferred purely administrative in character or which was not enact ed by virtue of constitutional pro- vision that authorized such legisla- tion."
 The Senator quoted a number Of de- cisions in support of his contention and said that many of the States had found if necessary to amend their constitu- tions in order to give to commissions mower to fix rates It is conceded that if Congress has the power to fix rates a commission can be created and it can be utilized in the fixing of rates. "But." he said. 'it can be utilized only under some such statute as those en- acted by the Legislatures of Iowa and Wisconsin, when, in 1873 and 1874, they passed their respective statutes, class flying the railroads according to earn | ings and providing that the ofhcials chosen to execute them should, by computation, taking the classification as a basis. determine what statutory | rates should apply. That was admin 1 istrative. ,
 The Congress could also utilize the commission in the fixing of rates If 1t should see it to resort to the policy or a mileage basis.
 MT. Foraker also contended that the enactment of the proposed law would contravene Section of Article l of the Constitution prohibiting prefer ence in favor of the ports of the State over those of another State. He cited the differentials allowed In favor of Philadelphia and Baltimore and New Orleans and Galveston, and admitted that these dieferentials are essential to the diffusion of the export trafic