The daily sentinel., 1910-01-07


fact that between July /, 1908, and
the close of that year sixteen suits
had been begun to set aside orders of
the commission, besides one COM
menced before that date. and that
few orders of much consequence had
been permitted to go without pro-
test; that the questions presented by
these various suits were fundamental.
as the constitutionality of the act it
self was in issue, and the right OF
congress to delegate to any tribunal
authority to establish an interstate
rate was denied: but that perhaps
the most serious practical question
raised concerned the extent of the
right of the courts to review the or
ders of the commission; and it was
pointed out that, II the contention of
the carriers in this latter respect
alone was sustained, but little pro-
gress had been made in the Hepburn
act toward the effective regulation of
interstate transportation charges. In
twelve of the cases referred to. it was
stated. preliminary injunctfons- were
prayed for. being granted in six and
4, refused in six.
1T has from the first been well
understood" says the commission,
that the success of the present act
as a regulating measure depended
largely upon the facility with which
temporary injunctions could be OBJ
tained. If a railroad company, by
mere allegation in it's bill of COM
plaint, supported by eX parte affida-
Wits, can overturn the result of days
of patient investigation, no very sat
isfactory result can be expected. The
railroad loses nothing by these pro-
ceedings, since, If they fail, it can
only be required to establish the rate
and to pay shippers the difference be-
tween the higher rate collected and
the rate which is finally held to be
reasonable. In point Of fact it usual
ly profits, because 1t can seldom be
required to return more than a frac-
tion of the excess charges collected
In its report of the year 1909, the
commission shows that, of the seven
teen cases referred to in it's 1908 re-
port, only one had been decided in
the supreme court of the United
States. although five other cases had
been argued and submitted to that
tribunal in October, 1909.
OF course, every carrier affected by
an order of the commission has i
constitutional right to appeal to A
federal court to protect 1t from the
enforcement of an order which it may
show to be prima facie confiscatory
or unjustly discriminatory in its eff
fects, and, as this application may be
made to court in any district of the
United States. not only does delay re-
suit in the enforcement of the order
but great uncertainty is caused by
cOntrariety of decision.
The question presented by these
applications are too often technical
in their character and require
knowledge of the business and the
mastery of great volume of con
fiicting evidence which is tedious to
examine and troublesome 10 compre-
hend. 1t would not be proper to at
tempt to deprive any corporation of
the right to the review by a court of
any order or any decree which, If
undisturbed, would rob it of a rea-
sonable return upon its investment
or would subject it to burdens which
would unjustly discriminate against
it and in favor of other carriers sim
ilafly situated. What is. however, of
supreme Importance is that the de-
cision of such questions shall be as
speedy as the nature of the cirCum-
stances will admit and that a uni
formity of decision be secured so as
TO brlng about an effective, systemat-
ic and scientific enforcement of the
commerce law, rather than conflict
ing decisions and uncertainty of final
result.
For this purpose I recommend the
establishment of court of the Unit
ed States composed of five Judges des-
ignated for such purpose from among
the circuit court judges of the United
States, to be known as the United
States court of commerce, which court
shall be clothed with exclusive origi-
nal jurisdiction over the following
classes of cases:
/. All cases for the enforcement
(otherwise than by adjudication and
collection of forfeiture or penalty
or by infiction of criminal punish
ment) of an order of the Interstate
commerce commission. other than for
the payment Of money,
2. All cases brought to enjoin. set
aside, annul or suspend any order or