expedient, and even essential, and such regulation should embrace every form of public activity which is monopolistic, and in its nature and practice noncompetitive. Not only carriers of freight and passengers, but light, traction, heating, pipe line, power, storage, irrigation, telegraph and telephone agencies should be subject to direct and effective supervision by the State and the Nation. The Federal Constitution and the Federal Courts have afforded in the past and will in the future afford every guarantee that such control will be reasonable and just, and that the power to control is not the power to destroy. The economic waste of useless litigation, bad feeling and distrust on the part of the public will be thereby greatly diminished, with the resultant benefits of better service to the patron and greater profits to the serving company. Hence, our Arkansas laws are deficient in that our Commission is confined in its powers to the regulation of railroads, sleeping cars and express companies, and its jurisdiction is not further extended to cover every form and variety of public service utilities. LEGISLATIVE AND JUDICIAL FUNCTIONS AS TO RATES. The right to fix the amount of compensation which a particular public service agency may receive belongs exclusively to the Legislature acting either directly or indirectly through one of its administrative creations. And the Legislature can not empower a court to exercise it. When the Legislature has acted it then becomes the exclusive function of the courts to say whether or not the rates so fixed are reasonable and compensatory. "It is not within the power of a Court to fix or regulate the tariff of rates for services to be rendered by a public service corporation; this is a purely legislative function. But a Court has power to decide whether certain rates fixed by law or by the corporation are unreasonable either as to the corporation or as to the persons served by the corporation. Express Cases, 111 U. S. 1. Osborne v. San Diego Land Co., 178 U. S. 22. Reagen v Farmers L. & T. Co., 154 U. S. 362. "And the courts may not only declare certain rates unreasonable, but may decide what rate is reasonable in the particular controversy, and may go to the extent of enjoining the corporation from charging more than a reasonable rate in the immediate future. But they may not fix a general schedule of rates which shall be effective against persons not in any way interested in the particular controversy. In re Janorm, 174 Mass. 514, 55 N. E. 381." STATE AND INTERSTATE CONTROL. When the short and apparently simple little commerce clause was written into the Federal Constitution in 1787, interstate trade was too small and trifling to cause any anxiety as to its control, and hence, the clause was adopted without a dissenting vote. It was then a little cloud no bigger than a man's hand, and its vast import did not begin to be realized until 1824, when Chief Justice Marshall, in the celebrated case of Gibbons v. Ogden, held that the inland rivers are as much under National control as regards interstate trade, as are the high seas in the matter of foreign commerce. That decision made what might otherwise have been a loose and impotent confederation into a vitalized and effective nationality, and the epoch-making case of In re Debs, of some 70 years later, affirmed and extended its doctrines to cover every agency of interstate commerce, from railroads to aeroplanes. As the National trade now stands to the State in the ratio of about eight to one, so the power of the one is to the power of the other. One is consantly advancing, and the other as rapidly receding. The citation of a few cases will be sufficient to show the relative powers of the two sovereignties, and to illustrate the narrow limitations of the police power of the State as compared with the wide extent of National authority over commerce. Cala. v. Cent. P. Ry., 127 U. S. 1. (Holding that Congress might authorize persons to build railroads across the States and Territories.) Champion v. Ames, 188 U. S. 321. (The lottery case.) Ludwig, Secy. of State of Ark. v. West. Union T. Co., 216 U. S. 146. Ex parte Young, 209 U. S. 124. Smyth v. Ames, 169 U. S. 526. Robbins v. Taxing Dist., 120 U. S. 489. (Illegal tax on drummers.) U. S. v. U. S. Exp. Co., Fed. Rep. (Decided by Judge Rogers in 1911.) REASONABLENESS OF RATES. Every contest over a regulation by a State or a National Commission resolves itself usually into a question of dollars and cents. Whether it involves the extension of service at the same rate, or the giving of the same service at a less rate, the inquiry finally is, "Will this new demand work a deprivation of property without adequate compensation?" In other words, can the service be given and a fair return still be made on the property devoted to the public use? Necessarily, then, a satisfactory and accurate solution of the problem presented can not be given unless the value of the property devoted to the public use has first been, at least, approximately ascertained. In the absence of such knowledge the decision must be largely a guess upon a guess. When to that difficulty, you add the riddle of the relative value of that public property devoted to State as against interstate commerce, and the Chinese puzzle of the relative amount of revenue derived from the two kinds of traffic, State and interstate, you have abundant excuse for brainstorm and nervous prostration, and may perhaps conceive dimly the troubles of Judge Trieber in the Arkansas case, and of Judge Sanborn in the Minnesota case. To lessen these perplexities somewhat, has led some of the States to attempt the valuation of public service properties, and will induce, no doubt, the United States Congress to confer this power upon the Interstate Commerce Commission. Dual control by the State and by the Nation of the same utility, unquestionably prevents uniformity and causes many inequalities, but is perhaps unavoidable under our form of government. The right to this time never denied by the United States Supreme Court, of each State to fix rates for a service entirely within its own boundaries, unquestionably affects materially the interstate rate. But, ita lex scripta est, or so it seems, at this present writing. Yet, it would be no more surprising for this same august Court to change its mind and hold that the State-fixed rate was a direct interference with interstate commerce than was its recession from prior decisions in the income tax cases, and from the decision of Chief Justice Waite, in the Peik case, that a State-made rate could only be set aside by the Legislature which enacted it. Congress now has seen fit to prescribe the safety appliances on railroad trains; the hours of labor of trainmen on trains engaged in interstate commerce, which means practically all trains. Logically, then, it can prescribe the weight of the rails; the character of the ties; the speed of the trains; the size of depots and freighthouses, and so on. It is even contended by many respectable authorities, notably by Judge Clements, a Georgia Democrat, and now Chairman of the Interstate Commerce Commission, that Congress may regulate the issuance of stocks and bonds by all agencies engaged in foreign and interstate trade. Who, then, can measure the extent to which National control may go, and the corresponding disappearance of State regulation? RECOMMENDATIONS. What has already been said may furnish the reason and the apology for suggesting certain matters to the attention of our own Legislature: I. The Railroad Commission should be converted into a Public Service Commission, modeled after those of New York and Wisconsin, with powers co-extensive with the added responsibilities. And the Commissioners should be given a longer tenure of office, not less than six years each, with salaries sufficient to attract the ablest and most competent men, so arranged that the term of one commissioner only will expire at the end of two years. They should be appointed by the Governor, and thus be relieved from the necessity of becoming politicians, and spared the expense of long and arduous campaigns, when defeat at the polls may be the price of their efficiency and integrity. 2. The issuance of stocks and bonds by public service corporations should be regulated by law and placed under the control of the Commission, for the protection of investors and stockholders, and for the good of the corporations and the public at large. 3. The granting of franchises should be guarded by law, and not made so short in time as to deter capital from honest and profitable investments, nor so long as to be permanent. Attention is called to the indeterminate permit, now becoming popular, which apparently is fair and just to the corporations, and advantageous to the public as well. Those interested in the indeterminate permit as a satisfactory franchise may read an article thereon in "The Annals of the American Academy," for January, 1911, by Wm. O. Morgan, vice president and counsel for the Sheboygan & Electric Co., and may consult the 1908 report of the New York Public Service Commission. 4. The powers of the Commission being already sufficient for that purpose, special acts requiring the stopping of trains, and the building of stations, tracks and freight depots at particular places, should be discouraged. Such legislation is needlessly harrassing to the railroads, and is useless and expensive, and in the end, the people must pay the bills. Respectfully submitted, WM. A. FALCONER, Chairman, CODE OF ETHICS. [NOTE. The following Canons of Professional Ethics were adopted by the American Bar Association at its Thirty-first Annual Meeting at Seattle, Washington, on August 27, 1908, and by the Bar Association of Arkansas at Hot Springs, Ark., June 2, 1909.] I. PREAMBLE. In America, where the stability of courts and of all departments of government rests upon the approval of the people, it is peculiarly essential that the system for establishing and dispensing justice be developed to a high point of efficiency and so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the Republic, to a great extent, depends upon our maintenance of justice, pure and unsullied. It can not be so maintained unless the conduct and the motives of the members of our profession are such as to merit the approval of all just men. II. THE CANONS OF ETHICS. No code or set of rules can be framed, which will particularize all the duties of the lawyer in the varying phases of litigation or in all the relations of professional life. The following Canons of Ethics are adopted by the American Bar Association as a general guide, yet the enumeration of particular duties should not be construed as a denial of the existence of others equally imperative, though not specifically mentioned: I. The Duty of a Lawyer to the Courts. It is the duty of the lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges, not being wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor. Whenever there is proper ground for serious complaint of a judicial officer, it is the right and duty of the lawyer to submit his grievances to the proper authorities. In such cases, but not otherwise, such charges should be encouraged and the person making them should be protected. |