Evening star., 1907-08-27
The Private Capital Invested.


Equally important is it that the private
capital invested in these public enterprises
should receive fair consideration This is
demanded at once by the dictates of justice
and Of self-interest. This capital has been
invested upon the understanding that 1t
should be allowed a return. 1t would be
the grossest of bad faith, were It possible
to deprive that property Of the right to q
fair return.
so clearly apprehended is the danger Of de-
terrfng capital from seeking this form Of
investment in the future. If the demands
upon our railways are to be met enormous
improvements. These expenditures cannot
be made out Of earnings, they must como
largely from new money drawn from the in
vesting public. The ability to obtain this
now and hereafter will depend upon the
confidence which men have in the security
of their investment. It Is not enough that
earnings are ample today. If they are likely
to be unduly reduced tomorrow. Every sys-
tenn Of regulation should therefore assure
pital Of Just treatment.
l have said that the act to regulate COM
merce at once instructs the commission to
enforce its provisions and constitutes that
body a tribunal to pass upon complaints
brought against railways 1t has been in
the past one of the most serious reproaches
against that act that the commission was
made by Its terms at once prosecuting
officer and Judge. Strictly speaking. 1t Is
neither a prosecutor nor judge. but an
administrative body hidden to do justice
between the railways and the people. Its
findings have been in the past merely prima
facie and its orders could only be enforced
in court where the railway might obtain
judicial trial de novo. 1t must be admitted.
however. that the objection TO combining
in the same person the duties of q prose-
cutor and a trier Is a wise one, which
should seldom be contravened. While the
of the commfSSiOO rtap pt
and subject to review in the courts, the
union of these two functions may have been
we'll enough. Plainly different question
would be presented were the Jurisdiction Of
the commission extensive and its decision
final. That practical situation has now
arisen. The jurisdiction of the commission
has been enormously increased. and its de-
cision with respect to most Of the matters
which 1t hears is, in my opinion, practically
final. 81 feel. therefore, that the time has
come when the duties Of this body should be
separated. If 1t Is to continue to hear and
determine cases, it should be relieved of it's
other work. Whether this is so must depend
upon the character of the questions upon
which that body passes. and the. extent to
which Its conclusions can be reviewed.
The Making Of Regular Rate.
The making of a railway rate for the
future is from the very nature Of the thing
legislative rather than judicial, as appears
from consideration OF the difference be-
tween the functions of the Judge and those
of the legislator.
The judge declares what the law Is. For
this purpose he consults former decisions,
and looks into the enactments Of legis-
latures AS he finds the law in precedent,
or in statute, 50 is he bound to declare it
even though in his own opinion 1t ought to
be otherwise. If he has occasion to find
fact, he must do this from evidence the
nature of which is defined by elaborate legal
rules.
The legislator upon the other hand deter
mines not what the law Is, but what 1t
should be. To discharge this duty properly
he requires the most extensive information,
but in obtaining this he is bound by no rule
of evidence. Finally it is question of good
judgment with him what ought to be done.
The naming of railway rate partakes of
the legislative rather than the judicial. 1t
is fixed by no statute. 1t is controlled by no
precedent, it is established in accordance
with no fixed rule 1t cannot be determined
by the cost of the service nor by compari-
with other rates. Neither the financial
condition of the railway nor the necessities
of the shipper are controlling. All these
elements and many others, particularly
competition and commercial conditions,
must be taken into account, but when
everything is known it is still question of
judgment what the rate shall be. This dis
cretion must be exercised in the first in
stance by the traffic official who makes the