Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1911-09-17

general betterment of the service Of the
company and the public.
In the beginning, the railway oom-
panies Of my state went into the federal
court and tried TO enjoin state officers
from the enforcement of this law. The
case was tried out on its merits, and on
final hearing in the United States circuit
court of appeals, Sanborn presiding and
associated with him were Adams, a cir
cult Judge, and Garland, a district judge
The two justices, Adams and Garland,
upheld the law and Justice Sanborn dis
scented.
THE Issue presented in that case was
that the Nebraska Railway commission
had made some classlfieations and
schedules affecting grain rate shipments.
1t notified the railway company Of its in
tention to fix and establish these rates,
but, mind you, no rates had been fixed
or established and none in any way agreed
upon. The common carriers succeeded in
getting a temporary injunction. 1t was
heard on its merits in the district court
and the final hearing was had before the
United States circuit court of appeals The
issue rendered by the common carriers was
to control in advance the exercise of the
| legislative power OF a commission
This was an unwarranted position; a
position against all authority, because
there is no better legal principle estab-
lished in this country than that a legisla-
tive body cannot be enjoined In advance
from proceeding to make laws within the
scope OF its Jurisdiction, And again 1t is
! clear that the weight of authority is
against Justice Sanborn, but he is of the
opinion that the Nebraska railway COM
mission should be enjoined from exer-
eising its legislative and governmental
functions provided for it both by the
legislature and the constitution, and they
are both well within the clear provision of
| the law OF this country, Notwithstanding
all this, Justice SanboTn dissented. And
| mention 1t In this connection for the rea-
son that he seems to be the presiding
genius over this court OF appeals, whose
, particular function is to annul every YES
tige Of state control in regulating rates
and charges for intrastate commerce. The
position that this justice takes is not only
autocratic, but he has not given one sin
gle authority in the whole realm of juris-
prudence upon which to base such a dis
senting opinion. 1t would have been in
hSASShIBt udu the ASdTHtu JUSTICE written
an opinion on this proposition, but he
was content to simply dissent without
giving reasons.
This Nebraska Railway commission is
legislative body and was acting we'll
within the scope OF its authority. He, by
dissenting, presumes that this commits
sion would fix an unjust and inequitable
rate II 1t fixed any al all, position that
no court has right to assume II the
learned justice had had the same experi-
ence with railway commissions that the
people have had with certain courts In
multiplying state government he might have
been warranted In assuming the position
that he did. History, fact and precedent
are all against his position. There is no
ease anywhere to be found that upholds
his dissent. Such position as he took in
that case may we'll be regarded as the
source and origin OF the olamor for the
recall Of judges.
IF 1t be said that a provision for the
recall Of judges is too drastic (which /
coneeds to be the easel, I answer that a
radical and heroic treatment is often neces-
sary to cure a radical wrong. When court
decisions disturb and even override our
entire scheme OF government It is time
to call halt and cast about ourselves for
a remedy to check usurpation that may,
In the near future, develop into a CALLING
tyranny IL allowed 10 go en- unchalienged.
III this indefenslbe position OF Justice
sanborp In the Nebraska case were the
only one he had taken in this class OF
litigation, we might pass 1t by with all
charity and say 1t was simply a mistake
simply an inexplicable error OF judgment.
| But when this gentleman renders a dec-
sion along the same line in each and every
case we are Justified in saying that he
believes In multiplying. by court decisions,
the sovereign powers OF each OF these
| states.
This imperial federation Of union and
liberty under which we live is the most
complete, the most satisfactory. yet de-
vised by man. These sovereign states in
having delegated TO a great central gov
eminent certain rights, and having re-
served unto themselves all Of the powers
not granted. have more than a century
Of successful experience in representative
government; have, during all OF this time,
controlled, finally. with Justice and equity
their completely internal affairs, as pro-
vided for by the fundamental law OF the
land, as expressed by the entire body Of
people OF the entire country.
And II any change Is desirable or 10
sought by a majority or more OF the
people Of this country, there are certain
we'll marked and well defined lines OF
procedure 70 accomplish ~ but suffice
II to say that II never has been nor was
it ever intended to place 30 momentous