This view of the law as announced in 134 U. S. was affirmed by the Supreme Court in the case of Louisville and Nashville Co. against Kentucky, 183 U. S., 510.
It was further suggested that if this amendment was incorporated in the sixth section, that it was so fundamental in its character, that if the court should hold that it was an unconstitutional exercise of power by Congress, that it might have the effect of destroying the entire value of this remedial legislation, as it would be impossible to separate the clause from those provisions of the law directly controlling the subject of rates.
The committee, without expressing any opinion upon the constitutional questions suggested, feels that it is of sufficient importance and gravity to cause it to hesitate to incorporate such amendment into the sixth section, especially in view of the other objections to such legislation.
COULD THE COMMISSION, UNDER THE AMENDMENT, FIX A REASONABLE RATE, IF IT HELD THE PROPOSED ADVANCE RATE UNREASONABLE?
3. One of the most serious objections to this measure, if the contentions of those who oppose it are well founded, is the assertion that the adoption of this amendment would, in reference to advanced rates that were protested, deprive the commission of the power conferred upon it by the fifteenth section of the act of June 29, 1906, empowering it, if on protest and hearing it found a rate to be unreasonable, to fix a reasonable rate.
The authority to the commission proposed in the amendment "to hear and determine the matter in all respects as it was required to do by sections 13 and 15 of this act," can only be construed to refer to the procedure as provided in the thirteenth and fifteenth sections of the interstate commerce law. There is no attempt to amend the provisions of section 15, which confers upon the commission the right to declare a rate unreasonable, and when so declared to fix a reasonable rate. There are no provisions found in the amendment suggested to the sixth section conferring upon the commission the power, when it finds a rate proposed to be advanced unreasonable, that it may then proceed to fix a reasonable rate.
An examination of section 15 in reference to the power of the commission to fix a rate depends upon a condition precedent that is clearly set forth in said section. It is, that before the commission has the authority to fix a rate it must first reach the opinion that—
"The rates, or charges whatsoever, demanded, charged, or collected by any common carrier or carriers, * * * or that any regulation or practice whatsoever of such carrier or carriers affecting such rates, are unreasonable, or unjustly discriminatory, or are unduly preferential or prejudicial, or otherwise in violation of the provisions of this act."
When this conclusion has been reached as to existing rates the section then authorizes the commission—
"to determine and prescribe what will be the just and reasonable rate or rates, charge or charges, to be thereafter observed in such cases as the maximum to be charged; and what regulations or practice in respect to such transportation is just, fair and reasonable to be thereafter followed."