of our own history the Interstate Commerce Commission proposes to establish in this country a dispensing power under bureaucratic rule, its most objectionable form.

Certain general observations suggest themselves in this connection:

(a) Opposition to adherence to the fixed policy of the country, frequently finds expression in the declaration that new conditions demand new governmental expedients. This is freely admitted. That constitutions and laws and public policies should respond to the evolution of society may be regarded as an axiom of our aggressive civilization. But the admission does not justify the adoption of antiquated bureaucratic methods, involving a dispensing power, which belongs to the dead past, which more than twohundred years ago became archaic under constitutional government in Great Britain, which for more than a thousand years has been the political antithesis of the judicial function, and which in every age has been a concomitant of tyranny and oppression.

The use of the word dispensing, as here employed in its political sense, like the words forestalling, regretting and engrossing, has so fallen into disuse that its original significance in that sense is almost forgotten. The revival of the expedient as an expression of the spirit of populism and of state-socialism justifies the revival of the designation.

(b) The idea is advanced by advocates of Commission rate making, that in addition to the power to condemn a particular rate on the ground of unreasonableness (which power the Commission now possesses) it should also be

authorized to declare what that rate shall be, or its maximum limit, in the future. Whether the Commission does or does not now possess that power or may or may not constitutionally be endowed with that power, subject to judicial approval, need not here be discussed. But the advocates of Commission rate making go further and assume that such judicial sanction of a particular rate ordered by the Commission would carry with it the determination of all other like charges-in a word that it would, or that by some statutory provision or legal process, not yet fully explained, it might be made to project that rate to the entire schedule of which it is a part. The assumption is clearly hypothetical. A fatal objection to such exercise of the judicial power arises. A particular rate prescribed by a railroad company in a schedule applies to commodities and localities under a great variety of circumstances and conditions. Such application is discretionary with the company. It is in the nature of a levelling process, not only justified, but enforced by commercial and economic conditions, and is highly promotive of the material interests of the country. But considerations of this sort cannot possibly control judicial procedure, for that would involve the exercise of the legislative function by the courts, which is inadmissible under our form of government. Any unjust discrimination which might arise from the discretion exercised by the railroad companies can be corrected readily under provisions of the Act to Regulate Commerce which are strictly in accord with the rules of the common law.

THE MAGNITUDE OF THE WORK WHICH WOULD
BE INVOLVED IN THE EXERCISE OF THE

PROPOSED DISPENSING POWER IN THE
UNITED STATES.

The magnitude of the work which would devolve upon the proposed dispensing power in the United States is a consideration of the highest importance. It would be enormous. In its seventh annual report (1893) the Commission declared at pages 10 and 11, that it ought to be invested not only with the power to determine rates, but also with the power to determine the relative commercial status of the various towns, cities, sections and industries of this vast country. This was expressed as follows:

'To give each community the rightful benefit 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.'

This evidently would be an enormous power.

In its eleventh annual report (1897) the Commision declared that it ought to possess the power "to determine" rates, fares, charges and classifications, privileges, facilities or regulations," and to "order schedules in accordance with the decision of the Commission."

In the same report (1897) at page 26, the Commission said in regard to the magnitude of the proposed work:

"The amount of money involved would be much greater than that involved in the decision of any trial court in the United States. The results would usually be of more consequence to the litigants than those of any such court."

There can be no doubt as to the correctness of this statement. The value of the property thus exposed to autocratic appraisement and determination in one year, might exceed the total value of all the property rights adjudicated by the Federal courts since the adoption of the Constitution.

In the Maximum Rate Case the Supreme Court of the United States characterized the single proposition of Commission rate making as "a power so vast and comprehensive, so largely affecting the rights of carrier and shipper, as well as indirectly all commercial transactions." The court also spoke of it as "the difficult problem of just and reasonable rates for all the various roads of the country."

In his recent address before the American Economic Association, Mr. Prouty stated that the organization invested with the dispensing power "would necessarily render very many decisions." This is undoubtedly true. He also proposed that it shall “deal with monopoly in other branches of interstate commerce," which signifies that it should have control of the general anti-monopoly movement which now engages the attention of the country.

Mr. Prouty also clearly indicated that the exercise of the proposed power would exclude the legislative, executive and judicial branches of the Government of the United States from any actual participation in the work of regulation, and that it would admit no limitation upon the exercise of its authority except the personal judgment of the men composing the two proposed "expert bodies" as to "conditions," unfettered by court or law or precedent. In a word, his proposed method of regulation would con

stitute an exclusive and inclusive autocratic dispensing power.

A dispensing power in the United States which should embrace the functions and the scope of authority already indicated would manifestly carry with it the enormous task of supervising and directing the entire internal commerce, the transportation interests and indirectly the industrial interests of the country.

The magnitude of the work of regulation thus involved would not be entirely discretionary with the exercise of the proposed dispensing power, but to a degree would be mandatory upon it; for the existence of the power would carry with it an inevitable duty. The correctness of this assumption is clearly indicated by the experience of the Interstate Commerce Commission during the first two months of its existence. The Commission was then for a brief period led to admit tacitly that it was invested with the power to determine, in advance, under what circumstances and conditions the right to charge more for the shorter than for the longer haul could be admitted. The demands upon the Commission for the determination of such questions proceeded almost entirely from railroad companies. It was assumed by certain attorneys that ne glect to secure in advance the permission of the Commission to make such changes would subject the companies to heavy penalties. These demands upon the time and attention of the Commission became exceedingly onerous. In denying the authority of the Commission to exercise. such power, Chairman Cooley, speaking for the Commission, declared on June 15, 1887, that the assumed duty