THE ROLL CALL

...This was the first important measure which the President handed to Congress with peremptory orders to enact it into law...

...Interstate Commerce Commission Progressive THE INTERSTATE COMMERCE COMMISSION had shown from the beginning Progressive tendencies...

...Men of long experience in national politics opposed the bringing of all these cases to the national capital as unwise in further removing the judiciary, so far as this class of cases was concerned, from contact with the people...

...Upon the passage of the Commerce Court bill, the broad court review advocates again appeared with their amendments and again, in defining the jurisdiction of the Commerce Court, Congress refused to adopt the broad court review...

...It had advocated amendments to the act to regulate commerce, which would make regulation of interstate commerce effective...

...In the other two cases, the Commerce Court overruled the Commission and granted the restraining orders prayed for by the railroads...

...Wickersham or the White House ultimatum...

...It was the second stroke of statesmanship (counting the Payne-Aldrich tariff law as the first) of the present Administration...

...The Commerce Court, whether designedly or not, acted with reference to the order of the Commission in the fuel rate case precisely as would be expected of a hostile tribunal...

...Wickersham did what he could, and so far as he was concerned, the Republican representation in Congress from the Middle West was for most part kicked bodily out of the Republican party...

...That this is the scope ef court review intended by law has been assumed from the beginning by the Interstate Commerce Commission...

...The Reactionaries, the System Senators, urge a "broad court review"—a court review so broad that the court would practically try all over again each case appealed to them from the Interstate Commerce Commission...

...Commission's Orders Nullified IN THE FIRST NAMED CASE, which was of local importance only, the court denied the motion without, however, giving its reason or laying down any principle indicative of what it regarded as the scope of its jurisdiction...

...It was the Commerce Court bill, prepared by the Attorney General, with railroad and Wall Street support, which inaugurated the present era of Administrative interference with the course and conduct of Congress...

...Each of these cases were taken to the Commerce Court upon motion by the carriers for a preliminary injunction restricting the enforcement of the Commission's orders...

...Even as thus modified and shorn of its most pernicious features, there were members of Congress who feared it might be made an instrument for fastening railroad control still more securely upon the country...

...Let us take a glance backward at the creation of this court...

...Almost at once, the court has proceeded to do the unexpected and, it is felt in some quarters, to "do" the Commission...

...The White House would never have recognized it when it returned, except for the label "Commerce Court," which stuck up so prominently in the first section of the bill and which Congress had allowed to remain...

...Is it to be an aid or a hindrance to constructive progress...

...The First Cases THE COMMERCE COURT has only been in operation a few months...

...This "newest tribunal" of the government has been in operation long enough now to give the country some idea of the function it assumes to perform in our political life...

...The Commerce Court bill simply provided at the outset, "That a court of the United States is hereby created which shall be known as the Commerce Court and shall have the jurisdiction now possessed by circuit courts of the United States and the judges thereof over all cases of the following kinds:—" After enumerating the classes of cases over which the Commerce Court was to have jurisdiction, the act says: "Nothing contained in this act shall be construed as enlarging the jurisdiction now possessed by the circuit courts of the United States, or the judges thereof, that is hereby transferred to and vested in the Commerce Court...

...In the course of a few years, however, there accumulated a series of decisions of the Federal Court, which in their practical effect destroyed the effectiveness and usefulness of the act and made the Interstate Commerce Commission practically powerless...

...At the time of the enactment of the Hepburn bill, and even more noticeably since, there has been manifested in the courts an increasing tendency to restrict the scope of their review to the questions of jurisdiction, constitutional questions and the question whether the Commission, in making its order, abused its authority and discretion...

...In taking its appeal, the Commission is forced to deny every conceivable ground upon which the Commerce Court might validly have granted the restraining order...

...Practically, the courts were left to define for themselves the scope of their review of orders of the Interstate Commerce Commission, which should be appealed to them...

...The original interstate commerce act was in a measure the fruit of the Granger movement of the seventies...

...On the former occasion a discussion of proposed court review provisions occupied months of time in the Senate...

...Danger Feared THOSE WHO FEARED the creation of this Court believed that the concentration within the jurisdiction of a single body, composed of judges with life tenure, of all this great mass of important litigation would invite a concentration of corporate and railroad influence and pressure, first to control the appointment or selection of judges to the Commerce Court, and, second, to influence the conduct of the Court itself...

...A number of federal judges, however, adhered to the doctrine that upon appeal to their courts from an order of the Interstate Commerce Commission they have the authority and the duty to proceed and try anew all the questions of fact and of law presented to the Commission...

...The Commerce Court, in deciding in favor of the railroad, failed even to indicate upon what principle, upon what conception of the scope of its appellate jurisdiction in such a case, it had acted...

...The "Court Review" ONE POINT of serious contention, both during the consideration of the so-called Hepburn rate bill in 1906 and during the discussion of the Commerce Court bill in the halls of Congress, was the scope of court review of orders of the Interstate Commerce Commission...

...And there were those who viewed it complacently because no evil consequences from it were apparent, and because they felt that while some minor objections were obvious, still there were also some minor advantages to be derived from the consolidation in one court of all the commerce cases arising throughout the country...

...that it wouldn't make much difference, anyhow, whether commerce cases should be heard by Circuit judges sitting in the circuits throughout the country, or by circuit judges selected from among these and sitting only in Washington...

...A Hostile Tribunal AMONG THE GROUNDS urged by the carriers in their bill were many contentions and allegations which went upon the assumption that the appellate jurisdiction of the Commerce Court was as broad as the original jurisdiction of the Commission, that an appeal to the Commerce Court meant a trial of all the issues of the case de novo...

...The Commission has taken the animal by the horns, so to speak, and has taken its appeal to the Supreme Court in such a manner as to have defined by the tribunal the scope of review of the Commerce Court...

...These outcast gentlemen, who had long been fighting the battles of the Republican party, read Chicago despatches reporting Wickersham's speech, and smiled...

...In all of which it is well for you to be interested...

...Meanwhile, the carriers will seek to delay the final determination until two years shall have expired from the effective date of the Commission's order, when, the order being no longer in effect, the case will become a "moot case" and the Supreme Court will decline to decide the questions presented...

...Those who urged this form of court review did so because they believed that railroad interests and System interests would be safer in the hands of a judiciary with life tenure than in the hands of the Interstate Commerce Commission...

...Up to the date of this writing, there have been but three important cases decided by the Commerce Court upon appeals from the orders of the Interstate Commerce Commission...

...Some reactionary decisions of the circuit judges were pointed to and it was argued that a Commerce Court, even under Washington influence, could not do worse...

...The work of this body, right at the outset, makes it important for the people to recall the circumstances surrounding its establishment by Congress and to inspect with a critical eye its activities...

...The fact that the Commerce Court granted these restraining orders is not so significant in itself, is not the occasion for so much apprehension as the fact that, particularly in the restricted fuel rate cases the court overruled an important decision of the Commission, a decision in accord with precedents long established in the Commission and never heretofore overturned in the courts, and that the Commerce Court overruled this important decision of the Commission practically as a matter of-course upon the motion by the carriers and without stating the ground upon which the court acted in the premises...

...Also this form of decision lends itself very readily to the aid of railroad whose interest lies in protracted litigation...

...Broad Review" Rejected IN THE ENACTMENT of the Hepburn bill, the various "broad court review" amendments and provisions were finally rejected...

...The pressure ©f public opinion at the time of its enactment forced Congress to write into it provisions which, for the state of public information at the time of its enactment, made it in terms a fairly progressive and efficient measure...

...The effect of this is practically to nullify the Commission's orders, for the reason that the effective life of the Commission's order is limited by the statute to two years, and the railroad lawyer who, having once obtained a preliminary injunction against an order of the Commission, is not able to keep the case in court for two years from the date of the Commission's order, is not counted as "up" in railroad law and tactics...

...These three cases were what were known as the "Winston-Salem Case," the "Restricted Rates Fuel Case," and the "Sugar Lighterage Case...

...It was argued in the debates and it was pretty generally conceded in Congress that the more restricted scope of court review was, by virtue of the decisions of the stronger of the inferior courts and expressions of the Supreme Court, to be accepted as a proper construction of "the jurisdiction now possessed by circuit courts of the United States and the judges thereof" upon appeals from the Interstate Commerce Commission...

...What Happened in the Senate WHEN THE COMMERCE COURT bill came to the Senate, Republican Senators, now more definitely classified as Progressives, made answer to the Administration's ultimatum by proceeding to legislate upon the Commerce Court bill precisely as though they had never heard of Mr...

...The country at large read the speech and smiled...

...The finish will perhaps help answer more definitely than it has hitherto been answered, the query, Why is the Commerce Court...

...This, of course, makes it so much easier for the railroads and so much harder for the Interstate Commerce Commission...

...It will be remembered that the President sent the Attorney General to Chicago to deliver the Administration ultimatum, making party outcasts and outlaws of all who dared question a single line of "the President's Commerce Court Bill...

...Its action and the manner thereof put the Commission in the most disadvantageous position possible for an appeal to the Supreme Court...

...So the Commerce Court provision was allowed to stay in the bill after some consideration in Congress, largely upon the grounds that the White House had staked its dignity and its authority in public affairs upon the passage by Congress of a "Commerce Court Bill...

...They cut out the stock-watering schemes, the provisions designed to make the government in effect a guarantor of interest and dividends on watered railway securities, and they struck out of the bill so many other things of a kindred nature and forced into it so many provisions really strengthening the interstate commerce act that, when they finished with it, the measure in its more important provisions was practically a new bill...