The Ely miner. [volume] (Ely, Minn.) 1895-1986, 1910-01-14

requirement of the interstate commerce
commission.
(O All such cases as under section
of the act of February 10, 1903, known
as the "Elkins act" are authorized to
be maintained in circuit court of the
United States.
"a All such mandamus proceedings
as under the provisions of section 20 or
section % of the interstate commerce
law are authorized to be maintained in a
circuit court of the United States.
Reasons precisely analogous to those
which induced the congress to create the
court of customs appeals by the provi-
sions in the tariff act of August s, 1909,
may be urged in support of the creation
of the commerce court.
In order to provide a sufficient num-
Der of judges to enable this court to be
constituted 1t will be necessary to au-
thorize the appointment of five addi-
tional circuit judges, who, for the pur-
poses of appointment, might be distrib-
uted to those circuits where there Is at
the present time the largest volume of
business such as the second, third, fourth,
seventh and eighth circuits The act
should empower the chief justice at any
time when the business of the court of
commerce does not require the services
or all the judges to reasSign the judges
designated to that court to the circuits
to which they respectively belong; and 1t
should also provide for payment to
such judges while sitting by assignment
In the court of commerce of such addi-
uonal amount as is necessary to bring
their annuol compensation UP to $4,000
Only Second to Supreme Court.
The regular sessions of such court
should be held at the capitol, but 1t
should be empowered to hold sessions In
different parts of the United States If
found desirable: and its orders and judg-
ments should be made final, subject only
to review by the supreme court of the
United States, with tine provision that
the operation of the decree appealed
from shall not be stayed unless the su-
preme court shall so order. The COM
merce court should be empowered in its
discretion to restrain or suspend the OPP
Grafton of an order of the interstate COM
merce commission under review pending
the final hearing and determination OF
the proceeding, but no such restraining
order should be made except upon no
tice and after hearing, unless in cases
where irreparable damage would other
wise ensue to the petitioner. judge
of that court might be empowered to al
low stay of the commissions order. for
a period of not more than 60 days, but
pending application to the court of Its
order or injunction, then only where ms
order shall contain a specific finding
based upon evidence submitted to the
judge making the order and Identified by
reference thereto that such irreparable
damage would result to the petitioner.
specifying the nature of the damage.
Under the existing law, the interstate
commerce commission itself initiates and
defends litigation in the courts for the
enforcement, or in the defense of its or
ders and DEGREES, and for this purpose 1t
employs attorneys, who, while subject to
the control of the attorney general, act
upon the initiative and under the instruc-
tons of the commission. This blending
of administrative, legislative and judi
cial functions tends, in my opinion, to
impair the efficiency of the commission
by clothing it with partisan characters
tics and robbing it of the impartial judi
cial attitude it should occupy in pass
ing upon questions submitted to It, In
my opinion all litigation affecting the
government should be under the direct
control of the department of justice; and
I therefore recommend that all proceed
ings affecting orders and DEGREES of the
interstate commerce commission be
brought by or against the United States
co nomine, and be placed in charge of an
assistant encouragement acting under
the direction of the attorney general.
Would Permit Agreements.
In view of the complete control over
rate-making, and other practices or in
terstate carriers established by the acts
of congress, and as recommended in this
communication, I see no reason why
agreemnts between carriers subject to
the act, specifying the classifications OF
freight and the rates, fares and charges
for transportation of passengers and
freight which they may agree to estab-
fish, should not be permitted, provided,
copies of such agreemnts be promptly
filed with the commission, but subject to
all the provisions of the interstate COM
merce act, and subject to the right of
any parties to such agreemnt to cancel it
as to all or any of the agreed rates,
fares, charges, or classifications by 80
days notice in writing to the other par
ties and to the commission.
Under the existing law the commits
sion can only act with respect to an al
legged excessive rate or unduly discrimin-
atory practice by a carrier on COM
plant made by some individual affected
thereby. / see no reason why the COM
mission should not be authorized to act
on it's own initiative as well as upon the
complaint of an individual in investigat-
ing the fairness of any existing rate or
practice; and / recommend the amend
ment of the law to so provide; and also
that the commission shall be fully en-
powered, beyond any question, to pass
upon the classifications of commodities
for purpose of fixing rates, in like man
ner as it may now do with respect to the
maximum rate applicable to any trans
portation.
Existing Law PoWerIess.
Under the existing law the commission
may not investigate an increase in rates
until after it shall become effective; and
although one or more carriers may file
with the commission proposed increase
in rates or change in c1assifications, or
other alteration of the existing rates or
classifications, to become effective at the
expiration of 30 days from such filing, no
proceeding can be taken to investigate
the reasonableness of such proposed
change until after 1t becomes operative.
On the other hand, If the commission
shall make an order finding that an ex-
listing rate Is excessive and directing 1t
to be reduced, the carrier affected may
by proceedings in the courts, stay the
operation of such order of reduction for
months, and even years. 1t has, there
fore, been suggested that the commits
sion should be empowered whenever a
proposed increase in rates is filed, at
once to enter upon an investigation of
the reasonableness of the increase, and
to make an order postponing the effec-
tive date of such increase until after
such investigation shall be completed. To
this much objection has been made on
the part of carriers. They contend that
this would be in effect to take from the
owners of the railroads the management
of their properties and to clothe the in
terstate commerce commission with the
original rate-making power-a policy
which was much discussed at the time
of the passage of the Hepburn act in
1866, and which was then and has al
ways been distinctly rejected; and in re-
ply to the suggestion that they are able,
by resorting to the courts, to stay the
taking effect of the order of the commits
sion until its reasonableness shall have
been investigated by the courts, where
as, the people are deprived of any such
remedy with respect to action by the
carriers, they point to the provisions of
the interstate commerce act providing for
restitution to the shippers by carriers, of
excessive rates charged in cases where
the order of the commission reducing