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been no contests in this state involving the reasonableness of the Commission's schedule or amendments made thereto from time to time. Of course, future events may change the opinions expressed in this matter, but from the experience of this Board up to the present time, the Commissioners could hardly suggest any change in the conditions in this state that would be more equitable and just to all interests involved."

A more astonishing statement, however, was received from a commission which a number of years ago was most vigorously contesting the doctrine of judicial review. One sentence of its letter reads:

"This Commission rather invites a review of their work by the Courts, and we do not feel that it in any way embarrasses us or causes us to hesitate in making an order fixing what we deem to be reasonable rates."

And the closing sentence of the letter is almost pathetic in its ingenuousness:

The length of time required to get a final decision in matters of this kind is the only feature of the law that causes any embarrassment.

Thus has judicial review not only fettered the hands of the commission: it has tended to destroy their will as well. It has, moreover, in many quarters corrupted the very idea of public control, perverting the views and distorting the vision of those upon whose soundness of judgment and keenness of insight the public is relying for its protection and welfare.

It is desired, in concluding this branch of the subject. to make a practical application of the general ideas involved in judicial review to the attitude which railroad companies habitually assume toward proposals for rate control. All movements in Congress to endow the Interstate Commerce Commission with power to regulate rates have been vigorously resisted by the railroad lobby, which has never been more strenuous in its opposition than it is at the present time. So also the introduction

of a bill providing for rate control in any state legislature -as in Wiscinsin during the recent legislative sessionhas always been a signal for sturdy and stubborn resistance on the part of the companies. Now how is this conduct to be explained? In view of the guarantee which judicial review offers the railroads, that rates must always yield a reasonable income, and especially in view of the definition which the courts have given to the term reasonable, and of the judicial methods employed in rate casesa definition and methods exceedingly favorable to the corporate interests-what possible interpretation can be placed on the railroads' conduct except this: that it is a confession that rates are now unreasonably high-unreasonably high even according to judicial standards of reasonableness—and that, moreover, the companies desire to maintain them where they are? What else can explain the determined opposition of the roads? If rates are now reasonable, and if the railroads intend to maintain them on a reasonable basis, surely they have nothing to fear from governmental regulation. If their schedules are fair, even according to the liberal theories of the courts. the government cannot touch them. Why, then, this resistance?

It may, indeed, be pointed out that the corporate opposition is always directed with special force against a provision often inserted in rate laws to the effect that the rates shall be in full force and effect pending a review by the courts. Under such a provision, it may be claimed. the roads, even if they could ultimately prove the unreasonableness of the commission's rates, would have to suffer the loss due to operating the rates while the suit was in the courts. But the discussion offered above shows clearly enough that there is no force in this contention The railroads have nothing to fear from a statutory provision of this sort. For in rate cases they repose on their

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constitutional rights, and to these rights statutes must always yield. Under the Constitution their property cannot be taken by the public without just compensation; consequently rates so low as to deprive of property are, in the absence of compensation, invalid. But now the courts have held that a railroad is entitled to immediate relief, by injunction, from rates which seem calculated to deprive of property, for,—such is the judicial argument— were it to be compelled to operate the rates pending judicial investigation, it would have no adequate remedy at law for the injury it had suffered, should the rates finally be found to be unreasonably low. Beyond a doubt the right of the road to equitable relief is fully established. For a legislature, therefore, to enact that rates shall be in force until found invalid by the courts, is an attempt to deprive the railroad of its constitutional right, and such an enactment must consequently be unconstitutional. If the only effective means of enforcing a constitutional right is through a suit for immediate suspension of rates. a statute forbidding immediate suspension must certainly be a denial of the right, and hence must be repugnant to the Constitution. Accordingly the federal courts have never hesitated to grant injunctions even when the state statutes provided that rates should be effective pending judicial review, and there is no reason to doubt that the same policy would be pursued in regard to federal legislation, should occasion arise. Under the law as it now stands, therefore, the railroads have no reason to fear a Congressional enactment of the kind under discussion.

From all of which we conclude that under the doctrine of judicial review a railroad cannot be compelled to operate, either temporarily or permanently, a rate which does not conform to judicial standards of fairness, standards which, we repeat, tend decidedly to the advantage of the railroads as against the public. What else, then, can

railroad opposition to the creation of rate-making commissions mean, other than an admission of a desire to charge unreasonably high rates, or a denial of the obligations which railroads owe to the public?

CHAPTER VII.

REMEDIES.

Our study so far has attempted to disclose the nature of judicial review, and its effect upon the efficiency of railroad rate control. It remains now to inquire what means may be suggested to overcome the difficulties which the doctrine has raised. Those difficulties, as has been shown, are chiefly two-the inability of a commission to reduce rates, and its lack of power to enforce them. Accordingly this chapter will consider three classes of expedients those suggested to relieve both difficulties, those designed to permit greater freedom in reducing rates, and those proposed to make enforcement possible.

I. First, then, as to suggestions for correcting both of the difficulties. Perhaps the most obvious measure is a constitutional amendment. Conceivably a provision might be added to the Constitution which would affect the Fifth and Fourteenth Amendments insofar as their relation to railroad control is concerned, and this could doubtless be so framed as to restore to the legislative department of government the power which it possessed under the decision in Munn v. Illinois. The exact form which such an amendment should take, however, it would be fruitless to consider at the present time, for the project is without a shred of feasibility. A constitutional amendment is a modern miracle, and it would be folly to rely upon it. The suggestion may therefore be dismissed with mere mention.

It will be observed that the above plan is designed to remove from the railroad the protection of the Constitu

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