be a finality even though their enforcement might require judicial aid.” (4. I. C. C. R., p. 13.) This the courts have positively denied.

A bill expressive of its peculiar ideas was then drawn by the commission and at its instance was introduced in the Senate on December 15, 1891. (Senate Bill 892, 52d Congress 1st Session.) At hearings before the Senate Committee on Interstate Commerce from February 3 to February 24, 1892, the proposition was strenuously opposed by eminent counsel, mainly upon the elementary principle of constitutional law and of rational government that it is absurd to attempt to invest a single governmental agency with the functions of detective, witness, party complainant, prosecutor and judge in the same proceeding. That savored too much of the Pooh Bah style of government.

The attempt of the commission to secure the desired power was disregarded by the Senate Committee on Interstate Commerce before which the hearings took place.

But in spite of this failure, in succeeding annual reports the commission has persistently maintained its right to exercise an important degree of judicial power.

Attempts of the Commission to Secure Legislative or Autocratic Powers.

Realizing its utter failure to secure independent judicial authority the commission soared to loftier heights of power. It assumed that its proper function is to direct the course of the commercial and industrial development of this vast country as well as to administer its transportation interests.

In its seventh annual report (page 10), submitted December 1, 1893, the commission declared that it ought to be endowed by Congress with the right "to investigate railroad tariffs, to require their correction and to determine what are just and reasonable rates for public carriage." But the commission far transcended even this claim to authority. In the same report it declared that it ought to

be invested with the right to determine the relative status of the commercial and industrial interests of this vast country. This appears on page 10 of its seventh annual report, submitted December 1, 1893, and reads as follows:

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"To give each community the rightful benefits of location to keep different commodities on an equal footing, so that each shall circulate freely and in natural volume, and to prescribe schedule rates which shall be reasonably just to both shipper and carrier is a task of vast magnitude and importance. In the performance of that task lies the great and permanent work of public regulation."

This was a clean-cut proposition to abandon the faith of the fathers in the conservatism which inheres in the interaction of forces and to have recourse to the experiment of an autocratic determination of the conduct of the commercial, industrial and transportation interests of the United States.

This wild thought was soon set in motion. The commission asserted its right by necessary implication under the Act to Regulate Commerce to prescribe maximum rates, minimum rates and absolute rates for the future. By an order dated May 29, 1894, it declared that the rates which prevailed from trade centres north of the Ohio River to points in the South Atlantic and Gulf States should bear a certain relation to the rates from trade centres of the North Atlantic States to the same Southern points; thus assuming the right to dictate the course of the commercial and industrial development of three great sections of this vast country. The most glaring vice of this assumption was that it was calculated to give rise to a fierce sectional struggle of a political character. The case ran the course of judicial procedure. It is known as the "Maximum Rate Case" and also as the "Cincinnati-Chicago Freight Bureau Case." (167 U. S., 479). The courts treated the attempted usurpation of power with contempt. In referring to certain assumptions of the commission the Supreme

Court of the United States used such language as the following: "Could anything be more absurd, &c., &c.," intimating also that the commission appeared to "evolve out of its own consciousness" the solution of the problems with which it was struggling. The decision of the court rendered May 24, 1897, was as follows:

"Our conclusion is that Congress has not conferred upon. the commission the legislative power of prescribing rates either.maximum or minimum or absolute."

A Constitutional Limitation.

In the same decision the Supreme Court announced the doctrine of constitutional law that the determination of the reasonableness of rates which have been charged and collected is a judicial act, but that prescribing rates which shall be charged in the future is a legislative act. This seemed to open up to the commission a new possibility for the acquisition of autocratic power. It resolved, if possible, to avail itself of the opportunity, exposed by the court, to cut loose from the judiciary through an attempt to acquire legislative authority. This would free it of all judicial restraint. Accordingly in its next annual report (the eleventh), submitted December 6, 1897, the commission recommended to Congress the following amendment to section 6, of the Act to Regulate Commerce (Pages 141-142):

"If the commission is of the opinion that the rates, fares or charges as filed and published in connection therewith are unreasonable or otherwise in violation of law, it shall determine what are and will be reasonable and otherwise lawful rates, fares, charges, classification, privileges, facilities or regulations, and shall prescribe the same, and shall order the carrier or carriers to file and publish, on or before a certain day, to take effect on a certain day, schedules in accordance with the decision of the commission."

About six weeks later, namely on January 22, 1898, there was introduced in the Senate a bill-Senate Bill

3354, 55th Congress 2d Session-drawn by the commission, which contained verbatim the provisions just stated. This bill in explicit terms provided that the commission shall have full authority

1. To prohibit a greater charge for the shorter than for the longer haul, unhampered by the consideration of "circumstances and conditions."

2. To prescribe actual rates, fares or charges, classifications, privileges, facilities, regulations, and to order the publication of "schedules in accordance with the decision of the commission."

3. To fix maximum rates and minimum rates.

4. To determine relative rates.

5. To determine the division of joint rates between carriers.

6. To make changes in classifications and to amend the rules and regulations under which traffic moves.

7. To issue self-executing administrative orders and final administrative orders-a strictly judicial function.

8. In the face of the opinion rendered by the Supreme Court in the Maximum Rate Case that "the power to prescribe a tariff of rates for carriage by a common carrier is a legislative, and not an administrative or judicial, function" the bill proposed to require the courts to review the rates, fares, classifications, &c., &c., prescribed by the commission.

9. It was provided in the bill that "the case as certified from the commission, together with any additional testimony taken as above, shall be the record upon which it shall be heard." This was also in direct violation of the clearly stated opinion of the Supreme Court of the United States that the commission cannot exercise judicial authority.

It would be difficult to imagine a more flagrant attempt to violate the fundamental principles of our organic law

as clearly expounded by the Supreme Court of the United States. It was essentially a proposition to use and then to eliminate the "judicial power of the United States" from the administration of justice in the broad domain of commercial regulation. As such it was a clean-cut proposition to establish in this country the bureaucratic form of government-the antithesis of that form of government which is prescribed by the Constitution of the United States.

In order to be entirely explicit, upon this point, I will state that by "bureaucratic form of government," 'I mean specifically the delegation of legislative powers to an administrative office of the government, freed from judicial restraint and subject to no adequate control by the chief executive authority of the nation. Such authority I have also characterized throughout this article as autocratic power.

So infatuated was the commission with the dream of power expected to be conferred upon it by Congress, that it betrayed in glowing terms the picture which its imagination had already painted in its own mind as to its expected triumphs over the Federal Judiciary. On page 26 of its eleventh annual report it said:

"If we have the power to entertain and decide them, these cases will necessarily be numerous and important. The amount of money involved will be much greater than that involved in the decision of any trial court in the United States. The results will usually be of more consequence to the litigants than those of any such court."

This was undoubtedly true. Not only would the commission have overshadowed the Federal Courts as to the magnitude and importance of its work, but it would have exercised over the property and the commercial and industrial interests of this country an authority vastly greater than that ever exercised by Congress or by the President of the United States, except in time of war.