When the Commerce Court was created, fears were entertained that there would not be enough business to employ its time. This prediction was far from being realized, judging by the record of the first year.[712] Including thirty-six cases transferred to it from the various Federal circuit courts, a total of fifty-seven suits were placed upon its docket up to December 20, 1911. Fifty-four of these cases directly concerned orders of the Interstate Commerce Commission, the large majority—forty-four—being suits brought by carriers to set aside such orders. The Commission appealed to the court but once for enforcement of its mandates, the remaining nine cases being appeals of shippers for relief. But a number of these suits were withdrawn or dismissed, or else lay outside the class of what may fairly be called contested cases. Only thirty-eight of them were in reality of significance as throwing light upon the function of the court as an appellate tribunal, standing between the Interstate Commerce Commission and the Supreme Court of the United States. Thirty of these were disposed of up to December 20, 1911. That the court took itself seriously as a check upon, rather than a coördinate body with the Commission, was evidenced by the fact that restraining orders or final decrees in favor of the railroads and against the shippers and the Commission were issued in all but three really important cases out of the entire thirty. And even of these three cases the Commerce Court held two to be outside its jurisdiction, while in the third the carriers had already joined in the view of the Commission, so that there was really no contest.[713]
A bitter campaign for the abolition of the Commerce Court, as a result of the tendency of its decisions, was waged in Congress during the session of 1911-1912. The House of Representatives, in response to popular feeling, promptly passed a bill abolishing it forthwith, the vote standing 120 to 49, with many Republicans joining the Democrats in its condemnation. A sharp contest was precipitated in the Senate over "the legislative recall of judges," as the matter was not inaptly termed. The Administration, through the Attorney-General, ably defended the imperilled court.[714] Evidence was adduced to show that the Commission had been sustained in a larger proportion of cases than under the old circuit court system;[715] that injunctions had not issued with greater freedom than formerly and that none of them turned upon questions of fact; and, finally, that the Administration plan had been very much more expeditious. But so far as Congress was concerned this evidence seems not to have been convincing. The Senate soon followed the House of Representatives, by a vote of thirty-six to twenty-three defeating an amendment to the Legislative, Executive and Judicial Appropriation Bill that made provision for further maintenance of the court. So strong was the feeling that only by a close vote was an amendment prevented which sought to legislate the justices out of office as well as out of the Commerce Court. For without such provision, of course, they would, under the law of 1910, be reassigned to service in the circuit courts, from which most of them were drawn. The final conference agreement between the two houses, appended to the appropriation bill above mentioned, definitely abolished the court, but followed the House plan of reassignment of the justices to duty in the circuit courts. This bill was twice vetoed by the President; but the second time, it failed of re-passage in the Senate over his veto by a narrow margin. In the House the popular view was expressed by re-passing the abolition measure by a vote of 149 to 53. These details are highly significant as indicating the impatience of Congress with any attempt at interference with the positive program of administrative control of railroads decreed in 1906-1910. The fate of the court then rested in the hands of the President, its original sponsor. A delicate situation, concerning the relations between Congress and the executive in the matter of legislative "riders" to appropriation bills, resulted. Whether such summary proceedings as those initiated by Congress were warranted by the facts, depended upon the final disposition of the contested cases by the Supreme Court, before which tribunal most of them were then pending on appeal. If it appeared that the court had in reality, as alleged, sought to usurp powers legitimately exercised by the Commission, the case for abolition would be greatly strengthened. But in any event, the certainty of a presidential veto of any law affecting this pet project of the Administration rendered the attack upon the Commerce Court for the time being abortive. As the matter was finally left, Congress acceded to the President's wishes, continuing the appropriation for maintenance of the court until March 4, 1913. What will happen in the meantime after Congress reassembles, remains to be seen.
The determination of the proper scope and function of judicial review was substantially forwarded by several decisions of the Supreme Court of the United States in June, 1912. The general effect of these was substantially to curtail the overweening ambition of the Commerce Court as an intermediate judicial body. Following the Goodrich Transit Company opinion[716] which first reversed the Commerce Court, all three of these latest opinions on appeal again favored the Interstate Commerce Commission as against its judicial reviewer. In two instances, the assumed jurisdiction of the new court was denied; while in the third, although jurisdiction was recognized, its decision was reversed. Because of their bearing upon subsequent developments, a brief review of these cases may not be out of place.
The Proctor and Gamble Company, well-known soap manufacturers, had complained of certain regulations concerning demurrage upon their tank cars. The Commission upheld the carriers, affirming that their rules were proper and lawful. The complainants thereupon appealed to the Commerce Court, which claimed jurisdiction to award pecuniary relief, although in this instance it declined so to do, on the ground that the Commission had rightfully decided the matter in the first instance. Appeal then followed to the Supreme Court, with the odd circumstance that the Commission and the railways joined issue against the shippers. The question was largely a legal one, involving definition of the jurisdiction of the new tribunal. The Supreme Court in this instance,[717]—and, it may be added, in the Cincinnati Freight Bureau case,[718] which similarly involved the relative powers of the court and the Commission,—unanimously affirmed the right of the Commission to decide such matters of fact finally.
To recognize the existence in the court below [the Commerce Court] of the power which it deemed it possessed, would result in frustrating the legislative public policy which led to the adoption of the act. The act creating the Commerce Court was intended to be but a part of the existing system for the regulation of interstate commerce.... It was not intended to destroy the existing machinery or method of regulation, but to cause it to be more efficient.... Wholly irrespective of the general considerations stated, we think the conclusion of the [Commerce] Court, as to its possession of jurisdiction over the subject referred to, was clearly repugnant in other respects to the express terms of the act.
Such a pronouncement, following the line of decisions headed by the Illinois Central Car Distribution case,[719] must make for concentration of responsibility and more effective regulation in the years to come.
The third decision of the Supreme Court, above referred to, was known as the "Restrictive Rate case."[720] Might railway companies—the Baltimore & Ohio and others—charge a different rate for the carriage of coal to railways than to other shippers, the coal being intended for the use of the railways as fuel? In this instance the Commission forbade the practice. Its order was then promptly enjoined by the Commerce Court. Jurisdiction of the Commerce Court was conceded by the Supreme Court in this instance also, but its opinion was again flatly reversed. The issue at bottom was really one of value of service as against cost of service in the determination of reasonable rates. Obviously the cost of carrying railway-fuel coal between two given points is practically the same as that of carrying commercial coal. The Commission, supported now by the Supreme Court in frowning upon any difference in the charge, was thus according priority to this consideration of cost. The view of the Commerce Court, which was here reversed, tended, on the other hand, to emphasize such facts as that the two sorts of coal were intended for different purposes and did not come in competition with one another as to price. In other words, value of service—what the traffic would bear—was given greater weight than mere considerations of cost. The Supreme Court declined to accept this view, preferring to regard transportation as a matter of physical carriage of goods, rather than to look beyond this essential service "to the greater or less inducement to seek the service"—that is to say, to regard its commercial aspects.