The Ordway new era., 1910-01-14
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 Sugeested--Scope
of Present LawToo Wide

time when the business OF the court Of
commerce does not require the services
OF all the Judges to rcassiEn the judges
designated to that court to the circuits
to which they respectively belong: and II
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 regulnr sessions of such court
should be held ut the capitol. but II
should be empowered to hold sessions In
different parts of the United States II
found desirable: and its orders and judg
ments should be made fnnl. 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 su-
preme court shall order. Tho COM
merce court should be empowered In Its
discretion to restrain suspend the op-
Grafton of nm 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 irrcpnrnble 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
a period of not more than 60 days. but
order or injunction. then only where his
order shall contain specific hnding
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 Its or
ders and decrees and for this purpose II
employs attorneys. who. while subject to
the control Of the attorney general act
/ upon the Initiative and under the instruc-
tiona OF the commission. This blending
of administrative. legislative and Judi
cial functions tends. in my opinion. to
Impair tho efficiency Of the commission
by clothing II with partisan characteris-
tics and robbnE II OF tho impartial judi
cial attitude It 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 nttorney-genernl acting under
the direction OF the attorney general.
Would Permit Agreements.
In view Of the complete control over
pate-making and other practices of In
terstate carriers established by the acts
of congress-. and as recommended In this
communication. see no reason why
agreemnts between carriers subject to
tho act, specifying the classihcations 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.
comics OF such agrecmnts 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 II
as to all or any of the agreed rates.
fares charges c1assihcations by 30
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 on a COM
plalnt 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-
INK the fairness Of any existing rate or
practice. and l recommend the amend
mcnt of the law to so provide: and also
that the commission shall be fully en-
powered. beyond any question. to pass
upon the classifications OF commodities
for purpose of fixing rates. In like man.
ner US It may now do with respect to the
maximum rate applicable to any trans
portation.
Existing Law Poweriess.
Under the existing law the commission
may not investigate an increase in rates
until after II shall become effective: and
although one more carriers may fle
with the commission a proposed increase
In rates or change in classifcations. or
other alteration Of the existing rates or
classifications to become effective at the
expiration Of 20 days from such filing. no
proceeding can be taken to investigate
hi ~f oonI
change until after 1t becomes operative.
On the other hand. II the commission
shall make an order finding that an ex-
listing rate Is excessive. and directing II
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
proposed Increase In rates Is Aled. at
once to enter upon an Investigation of
the reasonableness OF the increase. and
to make an order postponing the efrcc-
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
terstatc commerce commission with the
original rate-making power-a policy
which was much discussed at the time
of the passag" of the Hepburn act In
l905-6. and which was then and has al
ways been distinctly rejected; and In re-
ply to the suggestion that they are able,
by resortnE to the courts, to stay the
taking effect OF the order OF the commis-
sion until Its reasonableness shall have
been Investigated by the courts. where
rs, the people are 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 cases where