effect, not for the purpose of making that action a part of a decree that would be carried out as a decree, but simply for the purpose of stating a fact; and then the law comes in and says that that rate which they have thus named shall be the future rate to be charged. I am afraid that you did not get the idea that I had in this suggestion. I have not any doubt myself about our power to do that, and I think that is the solution of this constitutional difficulty.

Mr. KYLE. Would not that be in effect the same as if the Commission then established that rate?

The CHAIRMAN. No; it would not be the same, because it then becomes the direct act of the Congress.

Mr. ADAMSON. The witness is now right at the point where I had him when I asked him my last question, and I would like to go on from there if you have finished.

The CHAIRMAN. I am through with this, if Mr. Hearst gets my idea. Mr. HEARST. I think I do; but I do not see the advantage of a doubtful method of fixing a rate by a court when the clearly constitutional method of fixing the rate by a commission is available.

The CHAIRMAN. Have you thought of this matter, and have you an opinion as to whether this method would be operative and would overcome that constitutional difficulty?

Mr. HEARST. Of course I did think of the various difficulties, and doubtless that, or something like that, occurred to me; and in framing the bill in this way it seemed to me the possible difficulties-all possible difficulties that might arise would be avoided, because there is no question of the powers as given to the Commission and as given to the court, as herein set forth. And the delay is inconsiderable compared with the delays that occur now. The greatest saving of time and machinery and expense is provided for in this bill. And it insures, I think, beyond question the procedure of the Commission and the court being constitutional and being supported by the Supreme Court.

Mr. ADAMSON. Now, Mr. Chairman, this matter that I want to pursue will not disturb your line of questions. It is entirely in line with yours.

I was asking you, Mr. Hearst, a few minutes ago, what reason you could give why, in constituting a court for review of the finding of the Commission with authority to judge the rates fixed by that Commission, and to adjudge what its rates should be, it could not be empowered by us, endowed with the authority, to declare what would be a just and proper rate, and why we should not then, in the same act, legislate that that should be the future rate.

Mr. HEARST. Yes, sir.

Mr. ADAMSON. And you said in answer to Mr. Mann that perhaps you could not do that. You did not fully answer that. Now, I want to know, when this court is constituted by us with power to say what a just and proper rate would be, if we could not by enactment, the same act, provide that that rate so found by them should be the future rate? There has never been any decision to the effect that that could not be done, has there?

Mr. HEARST. There has never been any decision of the Supreme Court as to this court, because this court has not yet been established; but it has been decided to be unconstitutional to give that authority to

a court.

Mr. ADAMSON. What provision of the Constitution says that?

Mr. HEARST. The clause of the Constitution separating the executive, legislative, and judiciary.

Mr. ADAMSON. I am trying to get your views, now.

I notice that Judge Lamar made a suggestion to you which I did not hear. He is a good lawyer, of course

Mr. HEARST. You may be equally confident that I am not, and I am very willing to hear a suggestion, because I suppose you are more anxious to get the real facts of the case than you are to get my views. Mr. LAMAR. I suggested the fact of the broad distinction between the legislative and judicial functions.

Mr. ADAMSON. I asked him if he knew of any other reason except that distinction.

Mr. LAMAR. That is broad enough.

Mr. HEARST. I can only repeat what I have said, that under this phraseology

Mr. ADAMSON. I am not asking you with reference to any bill. I have no idea that any bill now before Congress will become a law. We are trying to find out what is right, and to make and report a bill, which I believe will be done. I am asking you the abstract question as to doing or not doing the particular thing. Now, you do not think that the provision as to the integrity and keeping separate of the three departments of the Government would prohibit the legislation suggested to you by the chairman?

Mr. HEARST. I think that it might, and I think that if it did prevent it, my bill would stand, and if it did not prevent it, they would be able to proceed under the word "modify," as you wish them to proceed, and it does not seem to me advantageous to go the length of putting in a clause which might be considered unconstitutional, when they have the privilege, under the phraseology that exists in this bill, of doing the very thing that you desire them to do.

Mr. ADAMSON. Can you tell me how it would be mixing the two departments under the Constitution, under the law we are going to pass, to declare that whatever rate the court shall declare would be or would have been a just and reasonable rate, shall become the law? The court has not a thing to do with making the law. This Congress makes the law, and it seems to me that it provides for the judicial interpretation.

Mr. HEARST. All right if it can do that; it can do it under this bill. The CHAIRMAN. Taking this act of yours, and leaving the word "modify" just as it is, and all of that sentence just as it is, would it strengthen it to add, in the appropriate place I do not know just where it would come-a provision that the rate so approved or so modified by the court should be the lawful rate thereafter to be charged by the carriers? Would that strengthen it?

Mr. HEARST. That assumes that the court may modify a rate?
The CHAIRMAN. Yes.

Mr. HEARST. I have not assumed that.

The CHAIRMAN. What is the office, then, of the word "modify?" That relates to some other proceeding in your mind other than the

Mr. HEARST. Any orders of the Commission that the court can modify. Now, it obviously can modify certain orders of the Commission, and it can possibly modify all orders of the Commission, and if it can not it will be confined to those which it can constitutionally modify. If it can modify the rate it will go ahead and modify, and

state a definite rate and fix a rate; but I repeat I do not think the court can fix a rate.

Mr. TOWNSEND. As I understand it, your bill makes provision for the Interstate Commerce Commission to take testimony necessary, and if a rate shall be found unreasonable should determine what is a reasonable rate. Now, if that is not satisfactory to the defendent, he takes an appeal to this interstate court that you have provided? Mr. HEARST. Yes, sir.

Mr. TOWNSEND. And that interstate court passes upon the lawfulness, if I may use that word, to cover all cases in which an appeal may be taken the lawfulness of the order of the Commission. And if that court finds that the Commission has made a lawful rate, then that rate immediately stands, does it not?

Mr. HEARST. Yes, sir.

Mr. TOWNSEND. If it finds it has not made a lawful rate, then it is remanded for further hearing?

Mr. HEARST. Yes, sir.

Mr. SHACKLEFORD. Unless modified?

Mr. TOWNSEND. No; I do not want to say "modified." Now, I am talking on the supposition, as I agree with Mr. Mann on that, that it seems to me that the Supreme Court would hold that the court could not make that rate. As I understand from your bill here, a rate does stand, if it is decided by the Supreme Court that the Commission made a lawful rate?

Mr. HEARST. Yes, sir.

Mr. STEVENS. Let me ask one concrete question, to get it in such shape that we can find the distinction. Suppose that the railroad was charging 12 cents a hundred, and that rate was challenged on the ground that it was unreasonable, and the Commission made an order fixing it at 8 cents a hundred; then suppose that an appeal for review was taken, and the case went to this court on that. The person who challenged that rate demanded reparation for the injustice done in the difference between 8 cents and 12 cents a hundred, and demanded that no greater rate in the future should be charged than the just and reasonable rate. Now, the rate fixed by the Commission was 8 cents a hundred, and it was brought to this court, and the court said that 8 cents a hundred was too low, and that 10 cents a hundred was a just and reasonable rate, and ordered reparation for the past and enjoined them from charging more than 10 cents in the future. That is constitutional. That is a perfect exercise of judicial authority up to that point, is it not? Your bill would give the court authority to do that in that kind of a case?

Mr. HEARST. May I have that question read to me?

Mr. STEVENS. I think I can probably restate it more plainly. Suppose that a rate of 12 cents a hundred is charged by a railroad company, and that rate is challenged by the Commission on the ground that it is unfair and unjust and unreasonable, and the man who brings the complaint demands reparation due to him on account of that unjust charge. The Interstate Commerce Commission hears the case, as provided by your bill, and fixes the rate at 8 cents a hundred as a just, fair, and reasonable rate, and grants him reparation. A review is then taken to the court provided for in your bill. On that review the court makes this decree, that the rate of 8 cents is confiscatory-too low-and that a rate of 10 cents is just, fair, and reasonable, and grants

him reparation for the past, and enjoins the railroad against charging more than 10 cents for the future. Is not that a perfect exercise of judicial authority authorized by the Constitution in such cases?

Mr. HEARST. It seems to me that that is merely a more complicated way of stating the previous proposition-that the court has a right to fix the rate?

Mr. STEVENS. I am just asking your opinion on that subject. Does that confer upon the court that equitable authority to enjoin for the future the exercise of an illegal rate, up to a certain point?

Mr. HEARST. I have endeavored to frame this bill so that the court would have authority to act up to its constitutional right.

Mr. STEVENS. If it should be held that that was an exercise of judicial authority, that the court would be obliged to declare, in view of that provision, what was a reasonable rate for the past years, and to compel reparation, it would exercise its equitable functions and forbid charging any more than an equitable rate for the future, which it seems to me it has a right to do now, has not Congress a right, then, to declare that a rate for that class of business, under those circumstances, is a fair, just, and reasonable rate, and should be the rate for the future for everybody? Has not Congress a right to do that? Mr. HEARST. Yes, sir.

Mr. SHACKLEFORD. If Congress has the right to do that, is not that right given in the words authorizing the court to modify the orders of the Commission?

The CHAIRMAN. No, sir.

Mr. MANN. I think you will agree the Supreme Court has decided that the judicial authority has not the power of determining what is a reasonable rate for the future. We understand the decisions to be that way; that it has always declared that the judicial authority has the power to declare what is a reasonable rate for to-day, or what was a reasonable rate when their service was rendered in the past. Mr. HEARST. Yes, sir.

Mr. MANN. Now, would it not be entirely competent, in accordance with the suggestion made by the chairman, for us to require the court to decide in a certain case what is the reasonable rate at the time of the hearing; that the rate in existence, not a future rate, is reasonable, and then to legislatively say, when that has been adjudicated, when the court has decided what is a reasonable rate at the time of the hearing, that that rate shall be the reasonable rate and enforced by the courts for the future, that being a legislative act?

Mr. HEARST. I doubt it, but possibly it can do that.

Mr. MANN. Can there be any question about it? It is not the court declaring what is a reasonable rate for the future. It is the court exercising its common-law jurisdiction.

Mr. LAMAR. The rate that you speak of is the rate already in litigation and pending before the court to be passed upon, or is it a sup posititious rate?

Mr. MANN. Suppose that we provide that a complaint shall be made as to an existing rate, any shipper would have the authority to bring a common-law suit. We may provide a different form of action, requiring the court or Commission to determine what is the reasonable rate at the time. That is the common-law duty of the court. And when that is adjudicated, why can not we legislatively say that that shall be considered and be the reasonable rate for the future?

Mr. TOWNSEND. Does any other bill have any other object in view than that?

Mr. MANN. Every other bill, and everything else, except what I have just heard here in the way of suggestion by the chairman, is to the effect that the court shall determine what is a reasonable rate for the future.

Mr. SHACKLEFORD. Let me ask you a question. If the court should do what you say, would it not take the form of a judgment, and being in the form of a judgment, would the Commission have any right thereafter, under changed conditions, to regulate that rate again until it had proceeded to have that judgment vacated and set aside?

Mr. MANN. Any bill covering that question will of course provide a method for reviewing the rates fixed in that manner, just as any other rate may be reviewed.

Mr. RICHARDSON. May I ask a question?

Mr. SHACKLEFORD. Mr. Hearst has not yet answered Mr. Mann's question.

Mr. RICHARDSON. Excuse me; I did not know he had not answered Mr. Mann's question.

Mr. HEARST. I simply wanted to repeat what I have said, that there is no doubt of the right of Congress to delegate its legislative function to the Commission, and there is no doubt of its right to constitute a court to review the decisions of the Commission, and there is no doubt, first, that it is an entirely legal system of procedure, and that it is also an extremely prompt system of procedure.

Mr. RICHARDSON. Under your bill the Commission have power to raise rates when they find them discriminative?

Mr. HEARST. Yes, sir; they have.

Mr. RICHARDSON. To raise a rate when it is too low?

Mr. HEARST. Yes, sir; the Commission has that power here, if it has fixed a rate that becomes too low.

Mr. RICHARDSON. Suppose that the rate is fixed originally for the purpose of discrimination, does your bill give the Commission the power to raise it if it is too low?

Mr. HEARST. Yes, sir; it gives it the right to fix a rate, and if it has the power to fix a rate, I suppose it would unquestionably have the right to raise a rate.

Mr. RICHARDSON. You know that often occurs in the matter of discrimination; that is what makes discrimination, often, locally. Mr. HEARST. Yes, sir.

Mr. SHACKLEFORD. It has that right already under the power to regulate.

Mr. HEARST. Yes, sir.

The CHAIRMAN. I would like to pursue this matter further. In calling your attention to the authority given on page 10, line 2, "it shall modify, set aside, or annul the same by appropriate decree or remand the cause to the Interstate Commerce Commission for a new or further hearing," in your judgment, would that authority to remand for further hearing permit the court to determine the lines on which that rehearing would be had? as, for instance, they might say that the rate fixed by the Commission as just and reasonable was, in their judg ment, either too high or too low, and they not having the power to fix the rate themselves, they chose to remand it to the Commission with