The Montgomery advertiser., 1908-03-30

sion. Finding no escape on principle. the duty Of the court Is plain. It must ss n The sss sss i of these gtatutes to leave the whole matter of rates and classifcations in th,, the keeplnE ef the commissien. and done go bg sh, ahsolute repssi Of sii | by It, leaving the commission as an der the rules and principles fixed by the constitution. the statutes and the common law. what are reasonable facts In the particular cases e with tise i commission deals. The Legislature could also have retained the "group ness; ,s,ss,o as q general guide for the Com ,ne me power r.to change them. by provsd- xns ln those statutes that upon the fss4ssn nfssnpeninE ascSs 1f csrtain state of facts the mere opinion or Judgment of the Commissfon .on undeined conditions of which the Commission was the sole Itself made no declaration what the a law shall fbA--the Commission might .nerenpen chsrge the classifications Sdd wb,cb ra,es within certain principles state or define, But, nothing of that klnd klnd was provided in any of the stat nses The legislature has not repeal sd to the sf% Whole a aueston sss nttsmRs so se arbitrary discretion of the Commission. ane constnutionaI trouble with the
 m st dsesrsdf ses sfisstiys ss wp powsp oDsr Ine wisdom and expediency of the par Ecuiar ciassifications and rates, and nus a snem upon the statute books as making power to repeal a. law, as we'll rsnee re so ,i1 miske 2 law; and the power of repea.iing or changing law, or sub be deessfed to any m ies otber bsseaa
 The legislaturs itself has not repealed donel is . naksd attempt temp 10 nre remit if nt to l the Commission the decision of the whole question. without declaring the ought to dietate and change the past policy or govern the future policy, l withput any chart or compass to guide may sSye that ssc.ppsthng mission. which renders it expedient and proper so to do." Turn the prop esition over as we may, and scan it view. we are always confronted by the fact that. in order to change the laws 4 now in existance. as to rates and clas- altered by ths yoWsr mSs, which TepsdsissSS sSs 9r | The power which made them has not repealed or altered them. in the mode provided by the constitution. It has its own viii as to swSat ss the law SsIi shsli be-" on any changed state of facts which It prescribes. nor, when 1t is nature or the extent of the changes which shall result therefrom, except that they may be what the commission upon wh:ch 1t s must sss speak, HpGsGS # has not what the law shall be-" It has simp- the us1e sne It is spa yonr unbridled discretion to judge for your selves that any event which you think Is of sufncient importance to change the law shall bring about that change; and thereupon, you shall be authorized to unmake what the legislature has declared to be the law of the land, and l which shall stand as law until again changed by order of the commission" No palmer instance could be afforded or legislature ito pass it's own judgment, I and declare It's own will, upon the com l tfngency which shall operate a change in a prior law. and as to the nature and extent of the changes which shall fol- low upon the happening Of that con- tingency. and surrendering the whole power on beth questions to an execu- latures determining for itself what are just aud reasonable rates and classincatiops.. and putting those rates whereby they become the law of the land. and cannot be changed except by an act of, the law making power itself. self; but when the legislature does so determine, the constitution fastens upon their lct. and provides the only such enactrnents can De undone % or changed. While some inconvenience both public and private, must result case on the evii IS ne Of small coDseouenoe m . to the greater evils which result from allowing such departures from the fun damental law It is vital to the vel. the laws shah be made and unmade
 or changed. only by the lawmaking power itself; Today t is the carrier attempted to be subjected to the doct- rine that administrative officers may change the law as enacted by the leg ent rules of conduct from those pre- scribed by the supreme law-making power. veEytng the law according to judgment" 1t is "expedient and proper so to do." If such power can lawfully be conferred upon administrative of nied to executive officers in other cases. It is an alarming doctrine tc proclaim in q free country, that laws for the control of the rights and busi- ness of citizens. under the complex conditions of modern life. can be made to give place to different obligations ana rules made 6y executive ofeers tHs
 judgment render 1t expedient or prop
 The whole matter is exhaustively discussed In Field V. Clark, 14S U. $ SEA- wherein is quoted with approva
 Ohio oRii oRio $. ss}. thai fsi' the o% delegSl ton of power to make law. which nee essarily involves discretion as to what 1t Shall bh, and the comforting of authority and discretion un- The first cannot be done; tc the latter, no valid objection can be made" Tn the one case the official oyerrides the law and substitutes his own Judgment for it; in the other, he
 oes not change the law. but merely Is Great ais Sort6ern Rs way Go. 1o1 Minn. 445 Our own cases of Mitchell. Judge. etc. v. State ex rel etc, 134 Ala. 292; and Harlan V. State ex rel, lS6 Ala. 155. are conclusive on this point Few cases can be found to authorize any other department of the government to strike down an ex- plicit legislative command, and sub stttute. in It's own unshackled discre- tion. some other command, and no ease can be found where such an attempt ris 36 N. J, T.. 372.
 Preliminary Injunction discretionary.
 XVI. Complainants here have the undoubted right to restrain the opera tion of the rates. if they will not pro duee an adequate return upon the tra state commerce. The right, as a matter of law. is unquestfoned, if | their complaint is well-founded, The only issue is. whether the facts as ul- timately shown will entitle them to intuctive relief on final decree. In