Willmar tribune. [volume] (Willmar, Minn.) 1895-1931, 1910-01-12

order OF the interstate commerce COM
mission other than for the payment of
money.
(2) All cases brought to enjoin. set
aside. annul or suspend any order or
requirement Of the interstate commerce
commission.
Of the act of February 10, 1908, known
as the "Elkins act" are authorized to
be maintained in a 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 5, 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 it 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
Of all the judges to reassign the judges
designated to that court to the circuits
to which they respectively belong; and it
should also provide for payment to
such judges while sitting by assignment
in the court of commerce of such addi-
tional 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 it's orders and judg-
ments should be made final, subject only
to review by the supreme court of the
United States with the provision that
the operation of the decree appealed
from shall not be stayed unless the SUI
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. A judge
of that court might be empowered to al
low Il stay Of the commissions order for
a period Of not more than 60 days, but
pending application to the court Of it's
order or injunction, then only where his
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 it's 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 characteris-
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
T therefore recommend that all proceed
ings affecting orders and DEGREES Of the
interstate commerce commission De
brought by or against the United States
60 nomine and be placed in charge of an
assistant attorney-general acting under
the direction of the attorney general
The subject Of agreemnts between car
rer: with respect to rates has been Oft
en- discussed in congress. Pooling ar
engagements and agreements were con-
demned by the general sentiment Of the
people, and under the Sherman antitrust
law, any agreement between carriers oper-
ating in restraint Of interstate or inter-
national trade or commerce would be
unlawful The Republican platform of
1908 expressed the belief that the inter-
state commerce law should be further
amended so as to give the railroads the
right to make any public traffic agree
ments subject to the approval of the
commission, but maintaining always the
principle of competition between natural
ly competing lines, and avoiding the
common control Of such lines by any
means whatsoever.
Would Permit Agreements.
In view Of the complete control over
rate-making, and other practices Of 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 classifcations 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
MERGE 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 classifcatOns by 80
days notice in writing to the other par
ties and to the commission.
Much complaint is made by shippers
over the state. of the law under which
they are held bound to know the legal
rate applicable to any proposed shipment
without, as matter of fact having any
certain means of actually ascertaning
such rate. 1t has been suggested that
to meet this grievance carriers should be
required. upon application by shipper,
to quote the legal rate in writing, and
that the shipper should be protected in
acting upon the rate thus quoted: but
the objection to this suggestion is that
it would afford a much too-easy method
of giving to favored shippers unreason-
able preferences and rebates. I think
that the law should provide that a car
ried upon written request by an intend
ing shipper. should quote in writing the
rate or charge applicable to the pro-
posed shipment under any schedules or
tariffs to which such carrier is party,
and that if the party making such re-
quest shall suffer damage in consequence
of either refusal or omission to quote the
proper rate, or in consequence of a mis-
statement of the rate, the carrier shall
be liable to a penalty in some reason
able amount. say $3.50. to accrue to the
United States. and to be recovered in
civil action brought by the appropriate
district attorney. Such penalty would
compel the agent Of the carrier to exer-
else due diligence in quoting the applic-
able legal rates, and would thus afford
the shipper real measure of protection.
while not opening the way to collision