Gilpin observer., 1910-01-13
Makes Recommendations as to Com
merce Law and the Trusts
WOULD CONSTITUTE A SPECIAL COURT
Judges Have Power Act in Certain Specified Cases
Wisdom of Federal Incorporation of Indus
trial Companies Suggested---Scope
of Present LawToo Wide

freSluent IaftS message to congress on
the subject OF needed legislation re-
garding the interstate commerce law and
the control of the trusts:
To the Senate and House of Represent
atives: l withheld from my annual mes
sage discussion of needed legislation
under the authority which congress has
to regulate commerce between the states
and with foreign countries. and said that
I would bring this subject-matter to your
attention later in the session. According
ly. beg to submit to you certain recon-
mendatons to the amendments to the
Interstate commerce law and certain con-
siderations arising out of the operations
OF the ANTITRUST law suggesting the wis
dom of federal incorporation OF indus
trial companies.
Interstate Commerce Law.
In the annual report of the interstate
commerce commission for the year 1908.
attention is called to the fact that be-
tween July l. 1908. and the close of that
year. 16 suits had been begun to set aside
orders of the commission (besdes one
commenced before that date), and that
Few orders OF much consequence had
been permitted to go without protest:
that the questions presented by these va
rious suits were fundamental. as the con-
sttutionality of the act itself was in is
sue and the right of congress to dele
gate TO any tribunal authority to estab-
lish an Interstate rate was denied. but
question raised concerned the extent of
the right of the courts to review the or
ders of the commission. and 1t was point
ed out that IL the contention of the car
riers In this latter respect alone were sus-
tained but little progress had been
made In the Hepburn act toward the ef-
fective regulation of interstate transpor-
,tation charges. In IL of the cases re-
ferred to. 1t was stated. preliminary in
functions were prayed for being granted
In six and refused in six.
1T has from the first been we'll under
stood. says the commission. that the
success OF the present act as a regulat-
Ing measure depended largely upon the
facility with which temporary injunc-
uons could be obtained II a railroad
company. by mere allegation in its bill
Of complaint. supported by exparte am
davits. can overturn the result of days
OF patient investigation. no very satisfac-
tory result can be expected. The railroad
loses nothing by these proceedings since
tf they fail. II can only be required to
establish the rate and to pay to shippers
the difference between the higher rate
collected and the rate which is finally
held to be reasonable In point of fact
u usually profits. because II can seldom
be required to return more than a frac-
ton OF the excess charges collected.
In Its report for the year 1909 the COM
mission shows that of the II cases re-
ferred to in its 1908 report only one had
United States, although fve other cases
had been argued. and submitted to that
tribunal In October. 1909
or course. every carrier affected by an
order OF the commission has n constitu-
tional right to appeal to a federal court
TO protect II from the enforcement Of an
order which II may show to be prirna
facie confiscatory or unjustly discrimina-
tory In Its effect: and this application
may be made to court in any district OF
tad tnN
result In the enforcement Of the order
but great uncertainty is caused by CON,
trariety of decision.
The questions presented by these an
plications are too often technical in
their character and require a knowIedr.
OF the business and the mastery of a
great volume of conflicting evidence
which Is tedious to examine and trou
biesoms to comprehend. It would not be
proper to attempt to deprive any cor
poration OF the right to the review by
a court OF any order or decree which
II undisturbed. would rob II of a reason
able return upon its investment or would
subject II to burdens which would nm
Justly discriminate against II and in IA
vor OF other carriers similarly situated.
What is, however. of supreme fmpor
tance is that tho decision Of such ot,es
tions shall be rs speedy as the nature of
the circumstances will admit, and thar
q uniformity OF decision be secured no
rs to bring about an effective. SYSTEM
attic and scientific enforcement of the
commerce law. rather than conflicting de-
cisions and uncertainty of final result
Recommends "Court o Commerce."
For this purpose ecommend the
establishment of n court OF the United
States composed of Ave Judges desir-
mated for such purpose from among the
circuit Judges of the United States, to
be known as the United States court
NJ mi na .l..tt
clothed with exclusive original jurisdic-
tion over the following classes of cases.
D All cases for the enforcement. 9TH
erwise than by adjudication and coliec-
ton. of forfeiture or penalty. or by in
Fiction of criminal punishment. of any
order OF the interstate commerce COM
mission other than for the payment of
money.
t2) All cases brought to enJoin, set
aside. annul or suspend any order or
requirement OF the interstate commerce
commission.
t3) All such cases as under section 3
of the act of February 10. 1905 known
as the "Elkins act" are authorized to
be maintained In circuit court OF the
United States.
90 All such mandamus proceedings
hs under the provisions OF section 20 or
section % OF the interstate commerce
law are authorized to be maintained In u
circuit court OF tho 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 g. 1909.
may be urged In support OF the creation
OF the commerce court.
In order to provide sufficient num-
Der OF Judges to enable this court to be
constituted II will be necessary to nu-
thorize the appointment Of Ave add
tional circuit judges. who. for the pur-
poses Of appointment. might be 'distrib-
uted to thote circuits where there 10 at
the present time the largest volume of
business such ~ the second, third. fourth.
seventh and eighth circuits. The act
should empower the chief Justice at any