The San Francisco call., 1908-09-29
ATTACK POWER OF
INTERSTATE BODY
Railroads Argue in Court Com.
merce Commission Can
Not Fix Rates
Take Stand That Rulings OF
Federal Tribunal Must Be
Reviewed at Bar

That the rates fixed by the inter
state commerce commission are not
binding unless sustained by the courts
was the argument made yesterday by
attorneys for the Southern Pacific and
the California and Oregon railroads be-
fore the United States circuit court of
appeals, the plea being advanced in the
injunction proceedings instituted by the
railroads against the commission.
The stand, If indorsed by the court.
Will practically nullify the power of
the interstate commerce commission
and swould throw back to the courts
the very questions for the solving of
which the commission was expressly
formed. The interstate commerce COM
mission would then be nothing more
than body of men giving expert
opinions for the instruction and edi-
fication OF the United States circuit
court of appeals, without force and
without standing.
The case is one OF the most i'm
portant which the commission has had
to combat. The decision will settle a
paramount issue in the business world
and will mean either the breaking or
the making OF the commission to all
1ntents and purposes. The commits
sioners were represented by their So
licftor, Luther NJ Walter of Wash
ington, D. c., and by Special Counsel
Joseph n. Zeal. The railroads were
represented by Peter f. Dunno, F. c.
billiard, w. w. Cotton and C. w. Dur
brow.
BONE OF CONTENTION
The case grew out of the rate made
by the commission on green fir lumber
from the Willamette valley to San
Francisco at $3.4O a torn The commits
sion set aside the companys rate of IS.
The Southern Pacific gave immediate
fight. With the California and Oregon
railroad it had issued an injunction
restraining the rate from going into
effect. The commission retaiiated by
demurrer to the injunction, holding
that the fixing Of rates was in it's
hands and that the courts had no right
to review its findings unless on the
complaint Of fraud or on a point of law
or if 1t was unreasonable and unjust.
The arguments heard yesterday were
on the demurrer.
Luther M. Walter, for the commits
sion, pointed out that the commission
ers were men with expert opinions on
the questions and that as far as points
of fact were concerned they were en-
powered by congress to give a de-
ciSion.
MAINTAINS COMMISSIONS POWER.
tiiC Gill OdQS, Sdlu are us
satisfied with the finding of the COM
missioners they have the privilege of
asking for a rehearing. If they have
additional evidence they are at liberty
to produce it. The rate was fixed after
a full hearing and the decision given
by experts. Questions of fact, we main
tain. this court can not review"
Walter cited numerous cases where
the United States courts had refused
to take up similar findings by COM
missions appointed by congress. Peter
f. Dunno. speaking for the railroads.
declared that the power claimed by the
interstate commerce commission was
unconstitutional.
When congress-" said he, declared
that the rates must be just and rea-
sonable the point of fact whether II
was just and reasonable remained for
judicial body to determine. The pur-
pose of the commission was merely to
report their conclusions. Their opinions
may be illustrative and instructive to
a court, but their findings of fact may
be reviewed by a judicial body. To give
it this power would make it judicial
body, and it is difficult to see in what
manner a fugitive commission living
seven or ten years, can be transformed
into SUCH"
A dong argument on similar lines
was made by Attorney Cotton. The
arguments will be concluded this MORN
ing.