The Evening statesman. [volume] (Walla Walla, Wash.) 1903-1910, 1906-04-10
ROOT TO MD IN RATE WAR
Amendment Opening Hepburn Bill
To Court Review
SECRETARY OF STATE IS THE AUTHOR
SOME LAWYERS CONTEND 1T
BE DECLARED UNcoNsTI-
TUTioNAL IF PASSED.
SECRETARY OF STATE IS THE AUTHOR

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dent Roosevelt has accepted. and is
urging republican senators generally
to support. The Hepburn bill contains
no specific provision for a review by
the courts of the interstate commerce
commissions decision. 1t is contended
by some of the lawyers of the senate,
ciple that without a court review
provision the Hepburn bill would be
declared unconstitutional by the SUI
preme court of the United States.
The lawyers of the senate have been
unable to agree however. on the nature
and scope Of the court review. The
amendment which Mr. Roosevelt pro-
poses confers jurisdiction on the circuit
courts of the United States, ITO hear
and determine in any such suit whether
the order complained of was beyond
the authority of the commission or
violation of the rights of the carrier
secured by the constitution
Follows Constitution.
In other words, this amendment is
nothing more than a reinstatement of
the constitutional provision that prop
erty cannot be taken without just COM
pensation or without due process of
law 1t has been offered with a view
to satisfying those senators who desire
to support the administration policy,
but who honestly believe that the rate
bill will be defective if it fails spe-
officially to provide for some form of
judicial review.
Say these senators: ut is conceded
that the Hepburn bill by indirection
permits review by the courts. Then,
why decline to provide for that review
in specific terms. especially when fail
ing to provide for it raises the ques-
ton of the bills constitutionality?
Since the Presidents amendment
does not enlarge the appeal privilege
guaranteed by the constitution, it obvi-
ously falls within what the president
has referred to from time to time when
he has said that if there must be a re-
view it should be limited, and not of a
character that would direct the courts
to retry cases on appeal. From the
presidents point of view, therefore, the
proposed amendment is perfectly harm
less and comes as a concession to those
senators who claim the bill would be
faulty without it.
EntangIements Feared.
The principal objection to the court
review amendments thus far discussed
by the senate has been that they paved
the way to countless appeals and inter-
minable litigation. 1t remains to be
seen whether such an objection will be
made to the presidents amendment.
Mr.. Roosevelt has been advised by the
attorney general that the amendment
is sound and will stand the tests of the
courts.
According to Attorney General
Moody's construction, the amendment
does not open the courts for a re-
trial of all the issues upon which the
interstate commerce commissions
orders should be based. but leaves to
the court authority only to say whether
the commission has given a fair hear
ing and has acted upon the lines laid
down by the law. The discretion of the
commission, it is explained, is almost
absolute. Under the terms of the act
it would be difficult to delay the TAX
ing effect of an order of the commits
sion lowering the rate
1t is maintained by the presidents
advisers that while the amendment
does not specifically declare against
restraining orders, it is extremely
doubtful whether court would at
tempt to interfere with the order of the
commission except in the manner pro-
vided. If this amendment is adopted.
it will be interesting to see what the
resourceful railroad lawyers will do to
the Hepburn act after it goes into
effect.
Important to Root.
The amendment is the handiwork of
one of the greatest corporation attor-
neyS in the United States, who is cred
tied with presidential aspirations 1t
probably would prove very exasperat-
ing to that gentleman should his
amendment prove defective and enable
the railroads to resort to those subtle
devices by which the operations of the
law are hampered. Of course, the