The Railway Library, 1909 / A Collection of Noteworthy Chapters, Addresses, and Papers Relating to Railways, Mostly Published During the Year

by Unknown

To leave no doubt of the true construction of this section, an examination of the order required to be entered by the commission is conclusive of the meaning and intention of Congress in the enactment of this portion of the fifteenth section. It provides:

"And to make an order that the carrier shall cease and desist from such violation to the extent to which the commission finds the same to exist, and shall not thereafter publish, demand, or collect any rate or charge for such transportation in excess of the maximum rate or charge so prescribed."

An analysis of this order of the commission which requires it to provide "that the carrier shall cease and desist from such violation, to the extent to which the commission finds the same to exist," recognizes the fact that the rate is an existing rate, is an effective rate, is a rate in full operation, and cannot, therefore, be applied under the provisions of the amendment suggested to the sixth section, as no rate has gone into effect and become operative.

The subject we are considering as affected by the proposed amendment and the provisions of the fifteenth section, do not rest upon any principle of the common law, but are purely statutory enactments to carry out a policy in reference to interstate commerce deemed wise by Congress. The construction, therefore, of the statute in this respect cannot be aided by any principles of the common law, and the conclusion as to its meaning must rest entirely upon the intention of the legislature as expressed by the language of the act.

If this view of the fifteenth section is correct, the adoption of the amendment to the sixth section would change one of the most effective provisions of the act of June 29, 1906, and which was contended for with such earnestness in its passage through Congress.

Under the amendment to the sixth section, if adopted, and a protest was made to the advanced rate, or the commission under a protest was authorized in its discretion to suspend the advanced rate, until hearing as to its reasonableness, the only decision that could be made under that amendment would be, that the rate proposed to be advanced was either reasonable or unreasonable, but there would exist no power in the commission, if they found the rate unreasonable, to fix what in its judgment would be a reasonable rate. The committee does not believe that it is the desire of Congress, in view of the sentiment of the country as expressed in the press and before it, to pass additional legislation which would invite and suggest such confusion and legal difficulties in the construction of an act which has not yet been put in full operation by the tribunal charged with that duty.

COULD THE DECISION OF THE COMMISSION, CONDEMNING AN ADVANCE OF RATES, BE REVIEWED BY THE COURTS?

4. It was suggested to the committee that the incorporation of this amendment to the sixth section of the act of June 29, 1906, would deprive the carrier of the right to review by a bill in equity a decision of the commission which denied to the carrier the right to advance a rate. This contention is based upon the ruling of the courts, that the making of a future rate is a legislative act, and not a question for judicial review, and that until the rate is fixed and becomes effective it is purely one within the legislative function, and presents no subject cognizable by the court.

Under the amendment proposed a carrier would file a schedule of advanced rates; a shipper enters a protest to the rate taking effect; either by operation of the statute or the exercise of discretion by the commission, the rate is suspended until final hearing; subsequently there is a notice of the hearing and a decision rendered adverse to the contention of the carrier seeking an advance of the rate. Under these circumstances there is no remedy of review of that act of the commission provided for by existing law or under the principles of equity.

Existing law, providing for a review of a decision of the commission, does not by its terms enlarge the subject of equitable jurisdiction. The provision of the statute confers upon the court the right to take jurisdiction of a case against the commission and to review its decision when based upon an existing rate. There is no provision of the statute that contemplates the exercise of a jurisdiction by the courts in a case arising under a provision of law similar to the amendment sought to the sixth section of the act of June 29, 1906. In the decision rendered by the commission denying the right to advance the rate, the question of the reasonableness of the former rate or of any existing rate is not involved in the order to be entered by the commission. Under this proposed amendment the carrier submits a proposition to advance the rate, which has never become effective. The order of the commission would simply approve the proposition or deny the advance of the rate. This, under the proposed amendment, would be the extent of the authority and act of the commission.