The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1911-09-21
THURSDAY. SEPT. 81, 1911.
JUDICIAL ENACTMENT.

! JUDICIAL ENACTMENT.
! While many contemporaries affec'
to regard the protest of the house o.
governors against the progressive en-.
! croachments Of the federal courts on
state regulation Of intra-state com.
merce as an imaginary grievance, the
j fact Is that it Is a substantial one
but that a protest presented by repre-
%scntatives Of that body to the United
States supreme court will have any
tangible result Is extremely doubtful.
The fact is that the progress Of that
encroachment goes further back than
even the present directors set forth.
Thirty-four years ago the constitu-
tional principle vas laid down by the
United States supreme court In the
Granger cases that each state had the
power not only to regulate commerce
confined within it's borders, but. in the
absence Of federal regulation, to exer-
else the same power over Interstate
commerce either beginning or ending
in Its territory. This was a settled
principle for a decade. But on a new
issue over a regulatory act in Illinois
the supreme court. in 1885, held that
the exercise Of the power Of regula-
ton was so exclusive that its grant
by the constitution to congress with
regard to interstate commerce for
babe any interference with it by state
legislation. rel II congress did not
exercise the power.
That left as the accepted view that
there was a clear demarkation be-
tween the powers of national and
state legislation. Commerce conduct
ed entirely within a state was exclu-
sively subject to state regulation; If
It crosses the boundaries Of the state
It was subject only to national regu-
lation. Neither power could invade
the territory Of the other. But as
another decade progressed the United
States courts developed this theory:
The states could not regulate rates
30 as to have a "confscatory" effect,
and confiscation was defined to mean
the reduction that brings the profits
OF the railroads below what the courts
deemed to be a reasonable return on
the capital. The practical effect.
therefore, was that the right Of the
states to regulate was subject to a
judicial veto, IL the expected or esti-
mated profit did not come up to what
the courts considered right. In the
New York gas case this position wa
modified by the supreme courts hold
ing that the trial courts should, in
case Of doubt, leave to the test Of
experience whether the contested rate
would be profitable or moi.
But the Minnesota case presents a
ruling by the district and circuit
courts that goes still further. Not
only is the Minnesota regulation over
thrown. on the ground that the intra-
state rates do not yield a sufficient
profit but. in addition, It is held that
II the prescribed rates exercise an in
direct or possible effect on interstate
rates. it Is an unconstitutional en-
croachment on the national power.
For instance. II North Dakota regula-
lion should prescribe q rate over the
Grea. Northern railroad between Far
go and Leeds that would affect the
rate by the Northern Pacific route
between the same points. and would
be interfering with Interstate COM
MERGE and consequently invalid. This
alleged principle might easily be ex-
tended to deprive the states Of prac-
tically all their power over their in
tcrnal commerce. Regulation of pure
food. trusts. insurance. corporate
charters and banking might indirectly
affect interstate commerce. More.
ever. a. n Of the governors remark
ed. this enlarges the twilight zone"
where neither national nor state reg