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terms is not granted." The Commission ignored that declaration. Rates thus made would be legislative rates, and therefore not reviewable by the courts as to their reasonableness.

The reasoning of the Commission in this matter was too inconsequential for serious consideration. Congress also did not fail to see that the real rate maker is he who makes the rates in the last instance and not in the first instance. The bill just mentioned also proposed to confer upon the Commission the power "to prepare and publish the rules, regulations, and conditions for freight transportation," a proposition which clearly involved the creation of a dispensing power. (See section 3 of the bill.)

Like its predecessors this bill gained no favor with the national legislators. Congress was not prepared to subordinate the Federal judiciary to the Interstate Commerce Commission. Nor was it prepared to institute in this country a bureaucratic imperialism endowed with what Lord Macaulay styled, "that great anomaly known as the dispensing power," which in all ages has been an attribute of tyranny and oppression. Such the proposed expedient was clearly perceived to be at the beginning by Judge Cooley and his associates, who repudiated it absolutely.

During the Fifty-seventh Congress-March 4, 1901, to March 4, 1903-the Commission stultified itself glaringly before Congress. Until March, 1902-fifteen years after its organization-the Commission had neglected to employ the civil remedy provided in section 16 of the interstate-commerce act. Early in that month, however, the Commission had recourse to that provision of the law for the prevention of rate cutting-a misdemeanor under the act to regulate commerce. On March 24, at the instance of the Commission, Judge Grosscup, of the northern district of Illinois, issued an order granting a temporary injunction in an important case pending at Chicago, and in so doing expressed the opinion that "the expedient might turn out to be the vitalizing of the act." That expectation was realized. The injunction proved effectual in greatly abating, if not entirely arresting, the evil complained of. But the successful application of this provision of the act to regulate commerce ran counter to the scheme of autocratic rule which for years the Commission had had in mind.

Within one month after Judge Grosscup's order was issued, the Commission stultified itself by appearing before the committees on Interstate Commerce of the Senate and House of Representatives in earnest advocacy of a bill providing for the repeal of so much of section 16 of the act to regulate commerce as embraces the effectual civil remedy just mentioned, and proposed to substitute in lieu thereof an amendment providing for obedience to the autocratic authority of the Commission. (S. 3575 and H. R. 8337, 57th Cong., 1st sess., the same being identical.) This attempt to emasculate the interstate commerce act was exposed and failed utterly.

8 DUTIES AND POWERS OF INTERSTATE COMMERCE COMMISSION.

Instead of repealing section 16 of the act to regulate commerce, Congress has since strengthened it and made it more effective in an act initiated by this committee. I refer to the act of Congress approved February 19, 1903, commonly known as the Elkins law.

WOULD THE FEDERAL JUDICIARY IN ANY EVENT PASS UPON A RATE FOR THE FUTURE PRESCRIBED BY AN ADMINISTRATIVE BOARD?

The proposition to confer upon the Interstate Commerce Commission the power to prescribe rates for the future is defended upon the ground that such rates would be submitted to the courts as to their reasonableness. But the question as to whether the Federal judiciary could in any event pass upon a rate for the future prescribed by an administrative board is one involved in great doubt. This is indicated as follows:

1. In deciding the Maximum Rate case (167 U. S. 479) the Supreme Court of the United States said:

It is one thing to inquire whether the rates which have been charged and collected are reasonable that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future-that is a legislative act.

2. At a hearing before the Senate Committee on Interstate Commerce on March 10, 1898-page 9 of the hearings-Hon. Martin A. Knapp, chairman of the Interstate Commerce Commission, said:

One doctrine is now settled-that, whereas the investigation of the question whether an existing rate is a reasonable and lawful one or not is a judicial question, the determination of what that rate shall be in the future is a legislative or administrative question with which the courts can have nothing to do.

3. At a hearing before the Senate Committee on Interstate Commerce on February 21, 1900, at page 118 of the hearings, Hon. Charles A. Prouty, Interstate Commerce Commissioner, said:

The prescribing of a rate is, under the decisions of the Supreme Court, a legislative not a judicial function, and for that reason the courts could not, even if Congress so elected, be invested with that authority.

I am strongly inclined to accept the view of Commissioners Knapp and Prouty that the courts could not have anything to do with rates for the future, and that Congress could not invest them with that authority.

In view of this difficulty, Commissioner Prouty devised a scheme for creating a practical bureaucracy in the United States which seems to have voiced the views of the Commission. As the plan which he has proposed constitutes the main feature of certain bills which have recently been introduced in Congress, I will briefly explain it.

In an address delivered before the American Economic Association in the year 1903, Mr. Prouty proposed to eliminate the legislative and judicial powers of government from any actual participation in the work of railroad regulation. This he explained as follows:

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It is earnestly insisted that the freight rate is a commercial proposition which must be left to the laws of commerce, with which the Government can not safely meddle. In this he seemed to have in mind a plan to supersede the present exercise of the powers of government. He recommended therefore that "the laws of commerce" shall be administered by means of a duplex autocratic dispensing power completely outside of our present system of government, and in effect constituting a fourth independent branch of the National Government.

Mr. Prouty explained the organic features of his plan as follows: It is to embrace first the Interstate Commerce Commission endowed with the autocratic power of prescribing all the interstate rates in the country. Referring to the "suggestion, to permit the Federal courts to review and set aside if found unreasonable the orders of the Commission," he said, "it is very doubtful whether any such system can ever give satisfactory results," and adds, "these questions are not of a judicial nature and can not be intelligently passed upon by courts." In this connection he says:

A court administers the law as it is laid down in statute or in precedent; the jury decides the fact upon the testimony of witnesses. Not so the Commission. Here is no precedent to be administered. No dispute generally arises as to the facts. The question is, What under these admitted conditions shall be done? and this question is largely one of judgment.

And again:

Such a commission is an expert body, * * * its conclusion must still rest in the good judgment of its members. Its decision is the act of an expert body.

-а

Having excluded any sort of judicial interference with the work of the Commission, Mr. Prouty declared that the conclusions of the Commission ought to be subjected to some sort of review. He proposed, therefore, a tribunal "in the nature of a commerce court". tribunal fully endowed with judicial attributes, namely, the power "to make decrees and execute process," to "hold office for life, and to possess all the independence of judges," its decisions to be final. Mr. Prouty earnestly protested that his proposed commerce court shall not be in any manner subject to or related to the Federal judiciary, for he maintained that the matters to be reviewed by the proposed court are "not properly law questions," but "the judgment of a quasi legislative body," and, therefore, that "the review of such a judgment is not a judicial function," and that its proceedings "are not lawsuits," the question to be decided in each case being "largely one of judgment." Thus he proposes to create an administrative board, bearing the name of a court, and endowed with judicial attributes in the face of the constitutional provision that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." Evidently Mr. Prouty's proposed "commerce court" would be simply an administrative bureau endowed with autocratic dispensing power.

10 DUTIES AND POWERS OF INTERSTATE COMMERCE COMMISSION.

It is difficult to imagine a more glaring political solecism than the proposed commerce court endowed with judicial attributes, but without a judicial function or a legal duty to perform. Besides, the whole scheme is in a political sense revolutionary.

Referring particularly to the questions which will come before this non-judicial court, Mr. Prouty says:

These questions are not of a judicial nature, and can not be intelligently passed upon by courts.

Meaning the Federal courts.

He adds:

Federal judges are not selected for that purpose.

Most of them have absolutely

no experience in such matters. Their time is fully occupied with their proper duties, and the very nature of those duties in a measure unfits them to appreciate these questions.

The absurdity of this assumption is apparent. Commercial law— especially the law of the common carrier-has for centuries engaged the studious thought of the judicial mind. And yet it is gravely proposed by Mr. Prouty that all this knowledge which, by a process of evolution, has been incorporated into the very fiber of our civilization shall be set aside in favor of the emanations of the inner consciousness of a set of commissioners and of judges without judicial function, guided solely by their own introspections as to the fitness of things. In defense of his theory Mr. Prouty says:

As well might it be provided that (the Federal) courts shall enforce the laws enacted by Congress if such laws are in their judgment reasonable and just as to permit the Federal courts to review and set aside if found unreasonable the orders of the Commission.

In this he clearly suggests that the orders of the Commission should have the same authority and dignity as the laws of Congress. The Supreme Court has declared that public policy in certain cases is what the law directs, but presumably it will be a long time before the people of this country will consent that in any case public policy shall be what the Interstate Commerce Commission directs.

The scheme thus advanced by Mr. Prouty, at Philadelphia, in the year 1903, has acquired a degree of importance which it did not have at the beginning, from the fact that it has been made the basis of two classes of bills which have been introduced during the present Fiftyeighth Congress, namely, (1) bills which fully adopt Mr. Prouty's idea of a court which is not a part of the Federal judiciary, thus creating a double-headed bureaucratic power in the United States, and (2) bills which create a court which is to be a branch of the Federal judiciary, but deny to it the power to fix rates for the future, relying finally for execution upon the legislative power conferred upon the Interstate Commerce Commission, such court being in practice a judicial superfluity.

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The Hearst bill and the Townsend-Esch bill appear to be of the latter sort.

The pretense that it is necessary to confer autocratic powers upon the Commission in order to prevent exorbitant rates and unjustly discriminating rates is a delusion and a snare. Such manifestation of bureaucratic rule may have a laudable object in view. It may in particular instances be beneficent. But this much may be said of any form of despotic rule. The experiences of mankind clearly prove that the only plan for correcting abuses which arise in the course of commercial interaction compatible with the object of maintaining commercial liberty is through the determinations of an independent judiciary and by due process of law.

But the Interstate Commerce Commission appears since to have perceived certain inconveniences which might arise from the creation of the proposed interstate commerce court; at any rate it has returned to its original idea of conferring upon the Commission the absolute power of prescribing both absolute and relative rates, thus avoiding any inconvenience which might arise to its personnel from the creation of an interstate commerce court.

A DANGEROUS POLITICAL HERESY INVOLVED IN THE PROPOSITION TO CONFER AUTOCRATIC POWER UPON AN ADMINISTRATIVE BOARD.

During the last two thousand years there has been going on among the foremost nations of the globe a political struggle between the advocates of dispensing justice in the conduct of the interaction of commercial industrial forces through the exercise of the judicial power and the advocates of accomplishing that purpose through the exercise of autocratic administrative authority, the latter being usually performed by a bureau clothed with autocratic power or with delegated legislative authority. This autocratic governmental method-bureaucracy was the potential cause of the downfall of the Roman Empire. It was also the chief cause of the French Revolution of 1795. The only civilized nation in which it now prevails as an unrestrained expression of governmental authority is Russia, where the people are to-day clamoring for its suppression for the reason that it constitutes an intolerable form of oppression.

In the public discussion of the present political troubles in Russia the vital question at issue is referred to as the "bureaucracy" and as the "autocracy." The two terms are practically synonymous.

The framers of the Constitution were greatly influenced in their opposition to any sort of bureaucratic governmental power by the utterances of Montesquieu in Esprit des Lois, which Mr. Justice Holmes has characterized as "an epoch-making book." Therein the vital importance of an independent judiciary was clearly explained. This view was highly commended by Hamilton and by Judge Story,