REPUBLICAN REFORM RETROGRADING, (CONTINUED)
Chandler, William E.
REPUBLICAN REFORM RETROGRADING ( Continued.) Courts Given Broad Review of Railroad Rates Fixed by Interstate Commerce Commission. Congress Abandoned the Long Amendment Defining Extent to which...
...and in defense in these proceedings against the railroads every possible right of the latter could be set up and protected...
...And so this fourth invitation to long lawsuits paralyzing the power of the Commission is added to the three others contained in the act as it stood before, namely, mandamus proceedings (Sec...
...and the judicial branch of the government had been admonished to use its utmost efforts to prevent any forceu tions of fares and freight rates on the railroads and to protect the perpetuation of any wrongs deemed necessary to the maintenance of rates fixed by the railroads, if such wrongs on the whole the judges might, at the end of the expensive lawsuits, deem to be reasonable...
...For months, therefore, the contest went on—substantially the only issue being whether such judicial interference should be expressly provided for or left to take care of itself...
...Senator Bailey had drawn an amendment enforcing every fixing of rates by the Commission unless suspended or set aside by an order of court in a suit alleging the order to the carrier "to be beyond the authority of the Commission or in violation of the rights secured by the constitution...
...40, page 3162...
...Section 16 provides that "The venue of suits brought in any of the circuit courts of the United States against the Commission to enjoin, set aside, annul, or suspend any order or requirement of the Commission shall be in the district where the carrier against whom such order or requirement may have been made has its principal operating office and may be brought at any time after such order is promulgated...
...Record, Vol...
...It should not be allowed by the legislatures of the people...
...It should not require a revolution in political parties to arouse the will and make the way...
...No rates of fares or freights fixed by the Commission could be put in force except by going to law...
...CONGRESS must define the extent to which the courts may interfere with railroad rates duly fixed by the Interstate Commerce Commission...
...Senator Spooner succeeded in convincing...
...Collier's Weekly, March 24, 1906...
...Senator Knox insisted that the courts' right to review the Commission's decisions should be expressly recognized...
...Record, Vol...
...The premature demand that the judges shall hasten to paralyze the administrative branch of the government when the latter is fixing rates is as obnoxious as it would be to insist that the judges shall take part in the original proceeding of assessing taxes...
...Finding themselves by the abandonment of the Long amendment in full possession of the Senate, the railroads had not been content to take the provisions for broad court review as they came from the House...
...6), damage suits (Sec...
...Seeks to disguise that compromise amendment represents complete surrender to the Broad Court Review Railroad Senators...
...The people and the Commission were powerless against defiant railroads except after themselves invoking the aid of the courts...
...that Congress might create courts but not one without an unmodified right to issue injunctions...
...The government fixes the fares and the railroad collects no more...
...When the amount of the taxes, or of the property taken, or of the railroad rates is fixed, the assistance of the Court may be asked to enforce it as the lawful sum, and will be given or refused as the Court may determine...
...To make sure of an affirmative provision there were added in the Senate as to suits to stop any Commission's order, the above words: "and may be brought at any time after such order is promulgated...
...12987) had in Section 15 treated the right of court review by a new law providing that orders of the Commission fixing rates should take effect and continue in force "unless the same shall be suspended or modified or set aside by the Commission or be suspended or set aside by a court of competent jurisdiction...
...Record, Vol...
...Bear in mind that no "court review" question arises as to the rates of fare upon street railways...
...When there is a will there is a way...
...2) an express enactment that such interference should not extend beyond the ascertainment of two facts, one, that the Commission had not gone beyond the authority given to it by that very statute itself, and the other, that it had not violated any right of the carriers given by the constitution of the United States...
...The King of France went up the hill With twenty thousand men...
...In none of the three governmental functions is there any constitutional obligation to invoke the assistance of the courts...
...March 28, 1906...
...Attorney-General Moody's draft of the amendment provided for enforcing an order of the Commission unless set aside by a court—"and if upon the hearing the court shall find that the order complained of was beyond the authority of the Commission or in violation of the rights of the carrier secured by the constitution it shall enjoin the enforcement of the same, provided however that no order of the Commission shall be set aside or suspended by any preliminary or interlocutory decree or order of the court...
...The remedial legal proceedings were three, (1) application for mandamus, (2) suits for damages and (3) prosecutions for penalties...
...Section 16 provides further that "The venue of suits brought in any of the circuit courts of the United States against the Commission to enjoin, set aside, annul or suspend any order or requirement of the Ccmmission shall be in the district where the carrier against whom such order or requirement may have been made has its principal operating office...
...No passenger could ride in a car without first paying his fare...
...This was done by Senator Long's abandoned amendment prohibiting court interference except where the Commission should exceed the statutory powers conferred on it by Congress or should violate the constitutional rights of the railroads...
...There was incidentally the question whether the courts' light to issue injunctions should be limited and no injunction issued without notice and hearing...
...The same rule can be applied to the steam-railroad companies...
...40, pages 5887, 5945, April 26, 27, 1906...
...Clear Duly of the Party THIS grievous failure and betrayal of 1906 should be reversed...
...The railroad lawyers were in a hurry when they made the change.] See the New York Tribune, May 4, 1906: "Amendment approved by President and Senate Leaders...
...If they were to become a law there was absolutely no need of any further legislation to enable the courts to paralye the Commission...
...The grammar is better here...
...The right to review in an unrestricted way...
...The legislatures create the corporations, and the creatures are not superior to their creators—although it seems so just now...
...New York Sun, May 4. "President Roosevelt has assented...
...29, 1906...
...Indeed it was decided to adopt the broadest possible court review and it finally appeared in the law of June 29, 1906, as follows: In Section 15 it is provided that orders of the Commission shall take effect and continue in force "Unless the same shall be suspended or modified or set aside by the Commission or be suspended or set aside by a court of competent jurisdiction...
...Substantially adopting legal opinions like these and influenced by the railroad desires, the House Bill (No...
...The result was a victory for the railroads on the final issue after a five months' struggle...
...and that there should be placed in the bill two provisions: (1) an express recognition of the court's right directly and at once to interfere with rates of fare and freight when fixed by the Commission...
...The word "Venue" is the nominative of this clause and not the word "Suits" but the bad grammar does not vitiate the railroad victory.] This provision was at first drawn by the skillful men who defeated the Long amendment in these words: "and jurisdiction to hear and determine such suits is hereby vested in such courts...
...Victory for the Railroads ABILL of this kind could have been made a law within thirty days after its passage in the House on February 8. The Railroads would have instantly consented...
...President Roosevelt led the movement for the assertion of sovereignty and at first opposed any recognition of the right of direct judicial interference with rates to be fixed by the Interstate Commerce Commission...
...Does anyone suppose because the railroads of the country are capitalized at sixteen billions of dollars when they are worth only eight billions, that the people are perpetually to pay six per cent...
...Senator Spooner made the same demand and argued that the right of a court to issue an injunction could not be limited...
...Railroad rates should be fixed by the creators of the corporations, and the railroads made to conform thereto or go out of business and have their property and franchises granted to corporations who will serve the people without demanding interest and dividends on the fictitious capitalization which is now oppressing the nation...
...Restricted Court Review Abandoned THE issue joined in the Senate on the Long amendment continued pending from April 2 to May 4. It was at all times certain of adoption by from 46 to 55 affirmative votes...
...The sovereignty of the people had been proclaimed, but any effective exercise of their asserted power by the legislative and executive branches of the government had been paralyzed...
...New York Press, May 5. "President pretends defeat on rate bill is a victory...
...The King of France came down the hill And ne'er went up again...
...The government has as much right to fix rates without calling in the judges as it has to assess and collect taxes and to take private property for public use...
...40, page 4376...
...It was, therefore, the general opinion of the wisest and truest popular advocates in Congress that there should be in the pending bill no special assertion or recognition of the right of the courts to review the orders of the Commission and for a long time during the session their policy was opposition to any reference in the bill to the right of court review...
...Yet they certainly were enough for any reasonable railroad demand...
...On the other hand naturally the opponents of any special provisions for court review believed that these House provisions should be stricken out or modified, for the simple reason that more than ample legal protection was given to the railroads by existing law...
...Senator Tillman, who was in charge of the bill, prepared the amendment in these words: "If such court shall find that the order was beyond the authority of the Commission or was a violation of the constitutional rights of the carrier it shall issue an injunction against the enforcement thereof, provided however that no such injunction shall be issued as a preliminary or interlocutory proceeding...
...Congress Abandoned the Long Amendment Defining Extent to which Courts May Interfere By WILLIAM E. CHANDLER Ex-United States Senator from New Hampshire...
...Senator Fcraker insisted that nothing could be done to force lower rates except by the courts...
...The Republican party if it is to remain in national power must repeal all laws which seem to urge the courts to take part in the fixing of railroad rates...
...Where the Fight Cantered IT should be noticed that neither of these clauses did anything more than impliedly recognize the right of the courts to interfere directly and immediately with any fixing of rates by the Commission...
...But on May 4 it was decided to abandon it and with it all attempts to enact a restricted court review...
...The session of Congress which produced the Interstate Commerce bill of June 29, 1906, gave the people of the country a great triumph in the assertion for the first time of their complete sovereignty over railroad rates, and simultaneously inflicted upon them a great blow by a careful proposition for the paralysis of their power by judicial interference ostentatiously invited...
...and jurisdiction is hereby conferred on the circuit courts of the United States to hear and determine in any such suit whether the order complained of was beyond the authority of the Commissioner or in violation of the rights of the carrier secured by the constitution...
...It is a distinct victory for Aldrich, Foraker, Spooner, Elkins and Knox...
...A Sudden Change of Tactics BUT suddenly, on the 31st of March, it was decided by paramount authority that the tactics should be changed...
...No shipper could get his goods delivered to him unless he paid the freight...
...8), suits for penalties (Sec 10...
...This decision was embodied in what came to be known as the Long amendment, drawn on March 31 and introduced by Senator Long on April 2. The Long amendment provided that every order of the Commission fixing rates should take effect unless suspended or set aside by a court...
...income on sixteen billions...
Vol. 1 • June 1909 • No. 25
