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This correspondence has been printed for the purpose of such reference as will be likely to secure competent opinion in regard to legal and constitutional questions involved in the Cullom Bill.

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RELATIVE TO THE PROVISIONS OF THE CULLOM BILL, S. 1439, 56TH CONGRESS, IST SESSION.

JUNE 11TH TO JULY 21ST, 1900,

PRARY OF CONGRESS CARD A17-1484

PREFATORY NOTICE.

On June 11th I had an interview with Hon. Martin A. Knapp, Chairman of the Interstate Commerce Commission, upon the various provisions of law and questions of public policy involved in the Cullom Bill (S. 1439, 56th Congress, 1st Session). Speaking earnestly, Mr. Knapp said :

"Do you forget that the Cullom Bill provides that rates prescribed by the Commission are to be made subject to review by the Courts?"

I answered:

"Do you not know that the Supreme Court has declared that making rates for the future is a legislative act, and that it will not attempt to reverse an Act of Congress by judicial legislation? Furthermore, if Congress should authorize the Courts to set aside rates which the Commission had made in pursuance of the authority conferred upon it by law it would be a governmental solecism. If of any effect whatever, it would simply bring you back to the status which you hold under the Act to Regulate Commerce the present law."

On returning to my office I enclosed to Mr. Knapp copy of the statement found on pages 20 to 24 of my "Statement before the Senate Committee on April 13th, 1900," entitled "The Courts cannot and will not attempt to prevent the Political or the Commercial evils of Commission Rate-making." The following correspondence then took place.

JOSEPH NIMMO, JR.

HUNTINGTON, LONG ISLAND, N. Y.,

September 24, 1900.

[Hon. Martin A. Knapp to Joseph Nimmo, Jr.]

INTERSTATE COMMERCE COMMISSION,

WASHINGTON, D. C., June 12, 1900.

MR. JOSEPH NIMMO, JR.,

1831 F Street,

Washington, D. C.

DEAR SIR:

I have your note of yesterday with the printed copy of your statement before the Senate Committee.

Upon looking it over I am confirmed in the opinion I expressed yesterday, that most of your argument is addressed to questions which are not raised by the Cullom Bill and would not arise if that bill were enacted. The citations appearing on pages 20 to 24 of your statement are undoubtedly correct, but I do not concede that they justify the inferences you appear to draw from them.

You should bear in mind that the Cullom Bill gives the Commission no authority whatever to prescribe a rate for the future, except and until it has found upon investigation, on notice and hearing, that the existing rate is unlawful. In other words, the power to name a future rate is conditioned upon the determination that the past rate is illegal. The courts have undoubted jurisdiction to review the proceedings of the Commission so far as those proceedings relate to the existing or past rate, for that is clearly a judicial question. Now, if the court finds or holds that the Commission was mistaken, either in fact or in law or in both, in holding that the past rate was unlawful, it can stay or vacate a Commission order because the Commission had no power to make it. That is to say, if the Commission was in error in condemning the past rate its order pre

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