New-York tribune., 1910-01-08


withheld from my annual message a
discussion of needed legislation under tne
authority which Congress has TO reg regutate stI
commerce between the states and with Tor
eign countries. and said that Would % pdins 3s
this subject matter to your aLtehtlou Idtst
in the session. Accordingly neg 10 SUP
NIT to you certain recommendations as TO
the amendments 10 the interstate COM
nerce law and certain considerations arls-
ing out of the operations OF the antitrust
Law suggesting the wisdom OF federal in
corporation of industrial companies
INTERSTATE COMMERCE Law.
In the annual report of the Interstate
Commerce Commission for the year 1908
attention Is called 10 the fact that be-
tween July / 1908 and the close Of that
wear sixteen suits had been begun to set
aside orders Of the commission (besides one
commenced before that date), and that few
orders Of much consequence had been per-
mftted 10 go without protest: that the
questions presented by these various. suits
were fundamental. as the consututionality
OF the act itself was in ISSUE and the right
OF Congress to delegate TO any tribunal
authority 10 establish an interstate rate
vas denied: but that perhaps the most
serious practical question raised concerned
the extent Of the right of the courts TO
review the orders OF the commission: and
II was. pointed out that If the contention OF
the carriers in this latter respect alone
made in the Hepburn act toward the effec-
tive regulation Of interstate transportation
charges. In twelve Of the cases referred
10, II was stated, preliminary inJunctions
were prayed for, being granted in six and
refused in six
1t has from the first been well under,
stood says the commission, that the sue
cess OF the present act a regulating
measure depended largely upon the facility
|lth which temporary lnJuncuonS could De
obtained. II railroad company, by mere
allegation III its bill OF complaint, sup
ported by ex parte aftidavits, can overturn
gaf dan nf T1ar
no very satisfactory result can be expect
cd The railroad loses nothing by these
proceedings. since If they fail II can only
be required TO establish the rate and TO
pay. 10 shippers the difference between the
higher rate collected and the rate which
= finally held 10 be reasonable. In point
Of fact it usually profits, because it can
seldom be required to return more than a
fraction Of the excess charges collected
In its report for the year 1909 the commits
sion shows that of the seventeen cases re-
1erTed 10 IL its 1903 report only one had
been decided in the Supreme Court of the
United States, although five other cases
had oeen argued and submitted TO that
tribunal in October, 1893.
OF course, every. carrier affected by an
order Of the commission has a constitution
Al right to appeal to a federal court 10 pro
tect IL from the enforcement Of an order
which II may show 10 be prima facie con-
tiscatory or unjusrly discriminatory in its
eject; and as this application may be made
10 a court in any district of the United
States, not only does delay result in the
enforcement OF the order, but great uncer-
Iainty Is caused by cOntrariety Of decision
The questions presented by these applica-
tons are too often technical in their char
acter and require a knowledge of the bust
ness and the mastery Of a great volume of
conflicting evidence which is tedious TO ex-
anime and troublesome TO comprehend. Il
would not be proper to attempt 10 deprive
any corporation OF the right 20 the review
un1istuTbed. would rob il of reasonable
return upon its investment or would sub
GlScrlu1lnate against II and in favor OF
otner carriers similarly situated. What Is,
however, OF supreme Importance is that the
decision Of such questions shall be as
speedy a. the nature of the circumstances
Vii admit. and that z uniformity os de
ciSlon be secured so as TO bring about an
effective. systematic and scientific enforce
rnett ot the commerce law. rather than
conf .cting decisions and uncertainty OF final
COMMERCE COURT.
For this purpose 7 recommend the estai-
lshment Of a court Of the United States
composed of five judges designated for
such purpose from among the circuit judges
Of the tinted States, to be known as the
United States Court Of Commerce. which
court shall be clothed with exclusive orig,
nal jurisdiction over the following classes
of cases:
% All cases for the enforcement. other
Tlse than by adjudication and collection Of
forfeiture or penalty, or by infiiction OF
criminal punishment, OF any order of the
interstsue Commerce Commission other
traD for the payment or money.
~ All cases brought to enjoin, set aside
arnul or suspend any order or requirement
of the Interstate Commerce Commission
90 AT such cases as under Section . OF
rhe act Of February ls. 1906. known as the
'E5lkirs act, are authorized TO be main
states. -'' '0' 'i'' O''il'=o
~ Al such mandamus proceedings as
unoe- the provisions Of Section 20 or Sec
ton . Of the interstate commerce law are
authorized TO be maintained in q circuit
court Of the United States.
Reasons precisely analogous TO those
winch induced the Congress to create the
court OF Customs Appeals by the provi-
SONS IN the tariff act OF August 3, 1909,
may bs urged in support of the creation
81 the Commerce Court.
IN order to provide sufficient number
o. judges 20 enable this court 10 be con-
STUFFED Il viii be necessary 70 authorize
the appointment of five additional circuit
raent might be distributed 70 those circuits
Hnere there IS at the present time the
second. third. fourth seventh and eighth
circuits. The act should empower the
nlFi yusqct al any time when the bust
Lt7s OF Lne court OF Commerce does not
require The services OF all the Judges 10
r@asSlSn the judges designated 10 that
court - the circuits 10 which they respec-
lively belong and il should also provide
for payment 70 such judges while sitting
ny assignment in the Court of Cor,r71erce
- such additional amount as Is necessary
s 3Tlng their annual compensation up TO
The regular sessions Of such court sbo,,ld
hF heid ~ the capital but il should be
empowered 20 hold sessions in different
tf<ii . Jl Atil Z ltllFC states II found de-
.irabie. and its orders and judgments
should BE- made final, subject only to
review by the Supreme Court OF the United
States. with the provision that the opera
filn ~ the decree appealed from shall not
p'- stayed unless the Supreme Court shall
20 order. The Commerce Court should be
empowered in its discretion to restrain or
suspend the operation Of an order Of the
Interstate Commerce Commission under re-
ficW pending tie inal hearing and deter
ilnafl0n o. the proceeding, but no such
restraining order should be made except
4pon notice and after hearing unless in
ase- where irreparable damage would
'lher'glHe ensue to the petitioner A Judge
~ That court might be empowered to al
period Or not more than sixty DAYS but
pending application TO the court for its
'fc"f or Injunction. then only where his
"foFr shall contain a specific finding based
mon evidence submitted to the Judge max
,3s ne order and identified by reference
Ll"frto. t1at such ITreparable damage
ApIla result to the petitioner specifvina,
ne nature of the damage
hlff the existing law the Interstate
yt-In'fce Commission itself initiates ana
lrIenos litigation IN the courts for the
t.il"ictiileht or IL the defence, Of It's or
, slo HFcrees. and for this purpose IL
t"''sS r ttyr5irAs who, while subject 10
',iif"i 81 the Attorney General act
.",' ~" initiative and under the iRstruc-
ions ~ the commission Tnfs blending of
'sii9irati I'VE legislative and judicial
.hS TENDS, IN my opinion 10 impair
- ',hcltneN or the commission by cloth
win partisan characteristics ana
fppih1 y OF INC impartial judicial attitude
~ rfoul3 fc"ipy IN passing t5non Questions
-Iib'Eirted 10 tr- In my oDinfon siI Iities-
fipH affecting the government sifo,tid he
JnueT tle direct control Of the Ueus rtrpenf