The San Francisco call., 1908-10-01

The constitutionality of the Hepburn
rate bill. delegating to the interstats
commerce. commission the legislative
and judicial powers TO fix railroad
rates, was upheld by the United States
circuit court of appeals. sitting in this
city. yesterday morning. The decision IS
Of national Importance. as it Is a vindi-
cation OF a most conspicuous feature OF
President Roosevelt's policies. 1t was
rendered orally by Judge William 3.
Gilbert. 1t sustains the demurrer OF
the Interstate commerce commission to
the complaint on injunction fled by
the Southern Pacific company and the
Oregon and California railroad to re-
strain the commission from enforcing
a rate of $40 on rough lumber from
the Willamette valley TO San Francisco
bay points.
Judge Gilbert was attended during
the hearing and on the bench at the
time Of the decision by Judges Erskine
NJ Ross and William W. Morrow The
decision was unanimous. written
opinion will be handed down shortly
by the court.
AMENDED COMPLAINT
The attorneys for the Hartman
lines. Peter F. Dunno Of this city. r. c.
billiard Of Chicago and w. w. Cotton,
will file an amended complaint this
morning in an endeavor to make
showing that the rate set by the COM
mission is in effect confiscatory.
even though 1t is a rate 10 per cent
higher than a voluntary rate once
made by the company and applied for
eight years.
The fact that the complaint original
Iy filed by the railroads did not allege
that the commissions rate was confis-
catory or improperly adopted served
to make the issue of the constitution
ality Of the rate bill' the more dis
tinct and the decision OF the court the
greater triumph for the Roosevelt ad-
ministration-
The court proceedings yesterday
morning were short Attorney w. W.
Cotton was the only representative OF
the railroad counsel present
Luther NJ Walter. solicitor for the
Interstate commerce commissions:
United States Attorney Robert T. Dew
lin. and Joseph n. Teal, special counsel
for the Western Oregon lumber man
ufacturers' association, who had con-
Quoted the case. appeared.
Judge Gilbert opened the proceedings,
saying:
ACT CONSTITUTIONAL
I'm this case of the Southern Pacific
company versus the Interstate COM
merce commission the court Is unan-
imousIy of the opinion that the act Is
constitutional and that the complaint
fails 10 state facts sufficient to entitle
the complainants to equitable relief.
Our views will be extended later In an
opinion. The order viii be entered
forthwith so that you can take an ap-
peal il you wish
Mr. Cotton-In connection with that.
not knowing the exact grounds upon
which the decision depends. We would
like an opportunity to amend II we
think we can reasonably cure the de-
feet.
Judge Gilbert-When will you present
your application for amendmentg'
Mr.. Cotton=Of course. would natur-
ally like to see the opinion or know the
grounds of the opinion first
Judge Gilbert--Well. II may be some
time before the opinion viii be pre-
sented.
Mr.. Cotton-If we could have a gen
era1 notion as to whether 1t Is a mere
defect in pleading or whether IL Is
matter of substance which we can not
nossfbIv cure. then. of course. we will
not make any application
Judge Gi1bert-In a general way our
view IS that the mere presentation OF
an allegation that the rate is unreason-
able or unremunerative Is not sufficient.
and that the allegations OF the bill.
taken together with the report OF the
commissions, do not show any ground
on which the court is authorized to act.
DESIRE TO AMEND
Mr. Cotton-.l see. sir Under those
circumstances we may possibly want to
amend. 1 desire to say that / personally
did not write the brief before the in
terstate commerce commission and
therefore am not sufficiently posted
upon the facts as to the earnings and
expenses to say just exactly what Mr..