The new era., 1910-01-20
GUILD CONSTITUTE A SPECIAL

| time when the business of the court of
| commerce does not require the services
| OF all the judges to reassiSn 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-
nonal 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
diHerent parts of the United States II
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 the provision that
the operation of the decree appealed
from shall not be stayed unless the
prcme court shall order. The COM
merce court should be empowered in its
discretion to restrain or suspend the op-
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 a stay of the commissions order for
n period or not more than to days, but
pending application to the court of Its
order or Injunction. then only where his
order shall contain 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 ofs sthe 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 decrees. 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-
tions 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 1t with partisan characteris-
tics and robbing 1t of the impartial judi
cial attitude 1t should occupy in pass
Ing upon questions submitted to II. 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 attorney general acting under
the direction of the attorney general.
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, 1 see no reason why
aCreemnts 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
lish, 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
a, 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 a COM
plaint made by some individual affected
thereby. I see no reason why the com
mission should not be authorized to act
on its own initiative as well as upon the
complaint of an individual in investigat-
ing the fairness of any existing rate or
practice; and l 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 classifcatlons of commodities
for purpose of fixing rates. in like man
ner as 1t may now do with respect to the
maximum rate applicable to any trans
portation.
Existing Law Powerless.
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 a proposed increase
in rates change in classtications. or
other alteration of the existing rates
q CO., tt,-a tl,,
expiration of 30 days from such filing. no
proceeding be taken to investigate
the reasonableness of such proposed
change until after it becomes operative.
On the other hand. II the commission
shall make an order finding that
isting rate is excessive and directing it
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 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-rnaking 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 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 casos where