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About Morning Oregonian. (Portland, Or.) 1861-1937 | View Entire Issue (May 6, 1905)
It VOL. XLV. 2sO. 13,856. POBTLA2JD, OREGON, SATURDAY, MAY 6, 1905. PBIOE FIVE CENT. COURTS CANNOT I S Moody's Opinion. Railroad Issue. on IS NOT JUDICIAL FUNCTION Congress May Give Commis sion That Power. EQUALITY AMONG . PORTS Attorney-General Defines "What It Jlcans Xo Doubt Congress Can Authorize Interstate Com mission to Make Rates. TOTTEB OF CONGRESS OVER .RATES. First There is a Governmental power to fix the maximum future charges of carriers by railroad, vested in the- Leg islatures of the etatcs with regard to transportation exclusively within the atates; and verted in Congress with re gard to all other transportation. Second Although legislative fowcr, properly speaking, cannot be delegated, the lawmaking body having enacted Into law the standard of charges wljich shall control, may intrust to ail administra tive body not exercising In the true enje Judicial power the duty to fix rates in conformity -with that standard. Third The rate-making power Is not a judicial function and cannot be con ferred constitutionally upon the courts of the .United States, either by way of original or -appellate Jurisdiction. Fourth The courts, however, have the power to investigate any rate -or rates fixed by legislative authority and to de termine whether theyx arc such as would be confiscatory of the projcrty f the carrier, and If they ate Judicially found to be confiscatory in their ef fect, to restrain their enforcement. Fifth Any Jaw which attempts to deprive- the courts of this power is un constitutional. Sixth Any regulation of land transi portatlon, however exercised, would seem to be, o indirect Jn Its effect upon the ports that it could, not constitute a pref erence between thi ports of different suites within the meaning of article 1, section 0, paragraph 0, of the Consti tution. Seventh Reasonable, Juit and impar tial rates determined by legislative au thority are not within the prohibition of article 1, (section 9, paragraph 6, .of the Constitution, even though they re sult in a varying charge per ton per mile to and from the ports of the dif ferent states. WASHINGTON, May 3. In an opinion presented to the Senate Committee on in terrt?.te Commerce today, Attorney-General William H. Moody defines some very important constitutional limitations on the power of Congress to regulate rail road rates. He holds that Congress has power to fix minimum rates for Inter state commerce, as have the several states to fix such rates within their boundaries. He also holds that Oils power can be delegated to an administrative body,, but that It is not a judicial function, and therefore cannot be conferred on a court. He finds that the courts have power to restrain the enforcement of rates paid by legislative power,, if they are confisca tory and that Consress cannot deprive courts of this power. He holds that rates to various ports may vary without being in conflict with the Constitution. Legislative Power Over Rates. Mr, Moody begins by citing the deci sions of the UnMod States Supreme Court In what arc called the Granger cases as showing: - That ther Is a Governmental power to reg ulate the operations of railroads acting ae common carrier,' and, as, a part of such reg ulation, to prescribe the maximum, rates which they may charge in the future for the services which "they -shall render to those who resort to them, and that the power Is vestetd In. and maybe exercised by, the legislative' branch of the Government. These- cases related to regulation by states of rates within the states. The principle laid down is now accepted as the settled law of the land and the United fctates Supreme Court has recognized the division of power on this subject be tween the states and the United States Government. The authority to delegate the rate making power Ik then discussed. Mr. Moody tells how State Legislatures found It necessary to create state railroad com missions to exercise this power and how their authority to thus delegate It was questioned In the courts. He then says: But the courts have held that where the legislature ha enacted that railway rates shall .be impartial and reasonable, the duty of executing this law and determining the rates for the future in detail in conformity with I -nay be conferred constitutionally upon an administrative body, and that a grant of -such power Is not a delegation of the legislative authority. It is sufficient to refer to a few only of the caeca which support thus view and to eay that no case which opposes it has come to my knowledge. Power Xot Given Commission. He cites several cases In point and .con tlnues: These cases affirm the tight of a State Leg Mature-to confer the power in question upon a state commission. No reason baa been ad vanced and none can be -perceived why the earn' principle wo&ld not control la the cue of a grant by CoagreM of a like power to a comas lele over Interstate traaepertatia. The Supreme Court in many- cases has ree alsc impropriety e Um luxe dckffaUua M RATE of powers of regulation over Interstate rail roads conferred upon the interstate Com merce Commission by the act of February 4, 1867. The right of Congress to confer upon a commission the rate-making power was dii tinctly presented to the court In the case of the Interstate Commerce Commission vs. Cin cinnati. New Orleans & Texas Pacific Rail way Company (107 U.S-.-TP). "In this case the commtHfilon had fixed a &roup of rates on certain railroads and ordered the railroads to readjust tbelr tariffs that from and after day named they should conform to the rates thus fixed. The railroads failed to obey this order and the commission instituted a suit in the Circuit Court to compel obedience. The bill w&3 dismissed after hearing, and on appeal to the" Circuit Court of Appeals that court certified to the Supreme Court the fol lowing question: "Had the Interstate Commerce Commission Jurisdictional power to make the order herein before set forth all proceedings preceding said order being due and regular, so far as pro cedure Is concerned V Commission May Be Given Power. This question -ruisoj two Umios: First Could Congress confer upon the Inter- etate Commerce Commission the power to fix rates which should control In the future? Second If Congress had the owcr to .do this, did the act under consideration confer upon the commUrion the authority to fix rates which should control in the future? The opinion of the Supreme Court was given in the affirmative on the first question, in the negative on the second. In that opinion, delivered by Justice Brewer, it was said: There were three obvious and dissimilar courses open for consideration. Cbngreta might lteclf prescribe the rates: or It Slight commit to some subordinate -tribunal thic duty; or it might leave with the companies the right to fix rates, subject to regulations and re strictions, as well a to that rule which Is as old as the existence of common carriers. to-wlt, that rates must be reasonable. The question debated is whether It vested in the commission tho power and the duty to fix rates; and the fact that this Is a debatable question, and has been moat strenuously and earnestly debated, is very persuasive that it did not. The grant of such a power Is never to be Implied. The power Itself is eo vatt and comprehensive, so largely affecting the rights of carrier and shipper, as well as in directly all commercial transactions, the lan guage by which tho power is given had been so often used and was so familiar to the leg islative mind and is capable of such definite and exact statement, that no Jut-t rule ot construction would tolerate a grant of such power by mere implication. Mr. Moody then says: The foregoing carea . dealing with the right of State Legislatures to establish a rate making commission, the clear analogy In this respect between their authority and that of Congress, and the case of the Interstate Com merce Commission ve. Cincinnati, New Or leans & Texas Pacific Railway Company, es tablish beyond doubt the right of Congress to confer upon an administrative body the power to fix and determine maximum railway rates which shall control in the future, by the exe cution In detail of a general rule enacted Into law, as, for example, that the rates shall be just, reasonable and without discrimination. But it does not follow that Congress has the right to confer the rate-making jwwer -upon a court. A body exercising the administra tive power which I have described might "be denominated loosely a court, and the law would not be held unconstitutional merely on account of the name of the administrative body -which it created if care were taken to exclude from Its functions the powers which are described properly as Judicial. In the dis cussion which ollows, however, I shall use the word "court" aa describing a body exer cising the Judicial power of the United Mates. Courts Can't Fix Hales. Mr. MooJy then reiterates that rate making Is a purely legislative func tion, the details of which it may 'dele gate to an administrative body. He then cites the opinion of Justice Brew er In Reagan vs. Farmers Loan & Trust Company, as follows: It is doubtless true, as a general proposl- (Concluded on Fourth Page.) ffl MAKES SURE ESTIMATE Figures of Ail Candidates for the Mayoralty at Primary Today. EVERY ONE IS CONFIDENT . 5; Albee, Glafkc, Merrill, Howe and . VHliams All Give Statistics to Show That They Arc Sure -of the Nomination. ESTIMATES BIT THE CANDIDATES. -"Vote la today's primaries as predicted by prophets of the- several Republican candidates: O t a 3: '? E S ? 5" ' ? 2 : r : 3 - Albee 1 3,0001 1,000 1.6001 1.S00J 2.Q00 Cooper ..... 2,101 250 200 100 100 Glafke i l.MKM 3.S50 1.200 1,3001 1.500 Merrill ..... 7.-V0I 1.000 3.000 1.0001 1.000 Rowe ...... I 1.200! 1.000 J.-iOO 2,000 J 1,500 Williams ... 2.0001 1.500 2.000 2.000; 3.800 Total .....j S.7001 S.6001 0.450110.1501 0.600 "Wide gaps exist between the figures predicted of today's primaries by -proph ets In the Albee. Glafkc. Merrill. Rowe and Williams camps. They all agree that between 2300 and 5000 votes will 'nominate the Republican candidate for Mayor, but each says that only his man will get that number, fe' And the prophets in the Lane and the Thomas camps on the Democratic side are far apart, too. In their opinion, per haps 1200 votes will be cast In the Demo cratic primaries. A majority of that number will name the .nominee, and the Lane boomers and the Thomas boomers, each set on its own side, avers that Its man will get the majority.- The chief fights for nomination are the following, named in the order of their intensity: Republican Mayor, Municipal Judge, five Councilmen-at-Large, Treasurer, City Attorney and one Councilman from each of nine wards. In one ward there Is no contest, Robert A. Preston being the only candidate, nor is there any contest for Auditor, for T. C Devlin is the only can didate who will be voted for. Democratic Mayor, Councilman from the Tenth Ward, all other places on the primary ticket having only one candidate or none. m All neaJqocn'ters Thronged: Tho political headquarters of tho sev eral candidates were thronged yesterday, those of Albee.. in -the McKay building, and of the liquor cohorts one floor below: of Glafke, at his Front-street office, and of Rowe, In the Brecdcn building, while His Honor Mayor Williams received many callers in tho City Hall. One of the noteworthy events of the day was the Indorsement of Otto J. Krae mcr by the Municipal Association as an antidote to the indorsement of George J. Cameron by the liquor forces. Aaother was the appearance of two email cards from the liquor headquarters, printed In red ink. one announcing tia liquor slate X candidates, the other- making known that, the slate was approved bytbe whole sale liquor dealers -ami-the brewers', the retail dealers, the Knights of the Royal Arch, the , Cigarrnakfrs' - Union ana" the Beer-Bottlers' and Beer-Drivers' Unions. An episode of, mDVlntcrest rs theat tempt ol PVed T. Merrill to issue a red ink imitation of the'liquor slate, with his own -name substituted for Mayor, thus to confuee the liquor forces and win votes to himself. This ruse of Merrill's was de tected and he promised not to carry out his scheme. Still another episode of the day was tho appearance last" night of a brass band parading the etrcets with mu sic and setting Itself off' with Rowe ban ners. Guesses on the" Vote. . Most of the guesses of today's Re publican vote place the number 'of Dai lots at-9030 or less.' The prophecy most startling to political gossips Is -that of Edwa- Newbcgln, one of the.- chief men or Glafke's staff of workers, 'who predicts that bis man will get Use nom ination with 3S50 votes, the nearest tjorapetltor being Williams with-1000. Mr. Ncwbegin said yesterday that 4700 Republicans had signed an agreement to vote for Glafke. In Mr. Newbegln's opinion, the nomination of Glafke was as sure as today's sunrise, and had al ready been made and the only function of the primaries is the formality of 'demonstrating that Glafke Is the choice of the Republican party. A-pccullarlty of Mr. Newbegln's figures was the fact that he allowed Albee and Rowe only 1000 each and Merrill ..as much as either. It was the boast yesterday In the Glafke camp that that candidate would receive more votes than any other two candidates combined. This confidence' did not -alarm the Williams boomers, however. Their es timates of today's vote for Williams ranges from 3200 to 4000 votes. In betting-circles last night four to.l waa offered on Williams and even money ..-that Merrill would not receive 1000 votes. Liquor Element for "Williams. Strenuous efforts were made yester day, by the Rowe, Glafkc and. Merrill workers to break Into the liquor forces which were lined up for WIll!ams,-but apparently1 without success. At a late hour last night it seemed that the liquor element was -practically solid for Williams. An effort was made, how ever to pry the retail dealers away from the wholesalers, who took the in itiative in Indorsing Williams. John Kelly, president of the Retail Liquor Dealers' Association of 287 members, TOLLS OrKN' AT NOON. CLOSE AT 7 P. M. A complete new city government Is to be elected next June, and the Re publican and the Democratic nominees are to be picked out today by direct primary vote. The polls will open at noon asd close at 7 P. M. gnltl that his organization had not lined up behind the so-calleH. liquor 'Jate and would not do no, out Icsllilodttiiat at least 70 to "75 per cent of the lrquor men would vote for Williams. "Not," said he "because It Is ncccssary to the liquor clement to support hlra, but because he has been maligned and pur sued on their account." Mr. Kelly said that he would support Williams, and that pther liquor men should do the same under the circum stances. That the retail liquor forces are united (Concluded on Fourth Page.) THE EDUCATED -ELEPHANT IS ABOUT TCSELECT A CARD BRiTT WINS IN TWENTY ROUNDS In Last Seconds of Fight Cali: . fornian Earns Victory With Championship-Blows. WHITE. A SPLENDID ' BOXER America Holds Lightweight- Honors After a Contest Whlch.BcIongcd to Xobody Until Time AVas About -Up. J WOODWARD'S PAVILION. San Fran cisco. May 5. James E. Brltt, of Califor nia, became lightweight champion of the world tonight when he knocked out Jabcz White, of England, at the' closo of a magnificent 20-round battle. With just 20 seconds to go, Brltt hooked- the English man with a left on the Jaw and the for eigner went to the mat. where he lay flat on his back for eight seconda He stag gered to his feet, but was powerless to defend himself and Brltt swung right and left on his Jaw. The referee, to save the plucky Englishman from needless pun ishment, stopped the cqntest. although White was still on his feet, leaning up against the ropes In a helpless condition. White was carried to his corner and In a few minutes revived sufficiently to make a little speech In which he said: "I fought the best. I knew how. I re ceived fair play, but Brltt Is evidently the better man." Brltt's victory was. of course, loudly acclaimed by the people of his home town, but White, though a defeated man, was cheered just as vociferously for the magnificent fight he made. AU through the battle White showed that he was entitled to compete for championship honors. He is a clever boxer, an experi enced ring general and has a cool hesfd that carried him out of difficulty many times. He seemed to lack, however, one requisite for a champion a knockout blow. He landed on Rritt's jaw many a time with both, right and left, but ap parently did not hurt the little San Francisco bulldog. Battle Waxes Hot. In the twelfth round it looked as If ' White had a chance. He landed a vicious straight right on Brltt's jaw, and a? the latter was off his balance, he went to the floor and rolled under the ropes He was not hurt, however, and came back fighting faster than ever. Brltt forced matters all through the fight. He niM nnY-tlfitlnr- attention tn -VVilt' stomach, occasionally swinging for the Jaw. Tho Englishman's cleverness en abled him during jnost of the fight to block Brltt's wicked punches for the stomach and to duck the swings for the head. During the latter part of the fight Britt used only his left, and persistent care of his right led the spectators to fear that .he had damaged It. But his right was In good order and he turned It loose In the nineteenth round, when he swung for White's stomach and Jaw. Brltt paid a tribute to White by saying he Is the. cleverest boxer in the world. "He stalled and blocked and kept rae away in a man ner that was never done before," said the champion. "Had he come at me and led I could have finished him sooner, as he Would 'have left more opening." The fight tonight was by long odds the cleverest exhibition that has been glven- In recent years In San Francisco. Britt demonstrated what his admirers have al ways claimed, that although he Is not a showy boxer, he 13 a hard man to hit. When the men came up for the last round Britt jumped at his man and kept, right on top of him. It was hit .and clinch and hit and clinch again. The Californian had .cut loose with, his right and waded in. swinging both hands. He took White's punches eagerly and anded harder ones In return. The ,furyk of his attack was unresistible. White's guard Tas beaten down and then came that dreadful swing to the face that ended the fight and kept the championship of the world in America. Cleverest Fight in Years. George Harding; the veteran timekeeper and, expert on matters pertaining to the ring, stated that it was the most clever and scientific fight he had ever seen. "White Is a marvel of skill and ring gen eralship," he said, "but all of his ex perience was of no evail against persistent attacks ot Britt." Britt, after the fight, declared his wil lingness to meet Battling Nelson, and It Is probable that the next important con test to bo given here will be between the two men. Referee Eddie Smith said: "Tho fight was the cleanest and fairest I have. seen. Brltt, who has been known to make mistakes, was very careful this time, and White's claim of foul was not allowed, as I saw none committed, and if any blow did happen to be low, Brltt certainly did not deliver it purposely. In any veent White was not Injured in the slightest and I decided to proceed. THE TOWX TURNS OUT. Immense Crowd Attends Britt-TVhite Encounter at Pavilion. WOODWARD'S PAVILION, San Fran cisco, May 5. San Francisco tonight wit nessed the first international champion ship pugilistic contest to be held In this country for .& decade, when Jimmy Britt, the Californian, and Jabez White, Eng land's premier lightweight, met In the ring at Woodward's Pavilion to settle'the question of fistic supremacy. The enthusiasm which usually prevails in this city when men of Brltt's and White's caliber are brought together was wanting tonight, due most likely to the unfavorable Influences which have at tended the matching of these two modern exponents of Queensberry. The date for the battle had previously been set for April 23 last, but the failure of the Board of Supervisors to issue a permit to enable the promoters to hold the contest on that night necessitated & postponement. An other circumstance which In a great meas ure tempered the Interest was the prohi bition by the grand jury of all public wagering in this city on events of this kind, and as a result of these restrictions speculation was limited to private bets between individuals. Immediately at the conclusion of the preliminaries the ring was cleared and the principals for the International battle 'wended thcit way Into the ring. B'rttt entered first, closely followed' hi' While. Announcer Jordan then introduced to the spectators "Young" Corbett and Eddie Hanlon. The latter delivered a neat speech in response to-calls from the crowd and was cheered to the echo. A telegram was read at the ringside from "Twin" Sullivan, challenging the winner of tonight's contest. Telegrams challenging the winner were read from Joe: Gans and Abe Attell. The outcome of Gans' challenge was the signal for a vol- (Concluded on Pace Slx.l CRISIS IN STRIKE EST IfSheriff Cannot Protect Chi Ncago Teams, He Will Call for State Troops, . ' RIOTING ON THE DECREASE Merchanis "Will Hesnmc Deliveries, and If They Go Safely Sheriff Says Strike "Will Be Broken. Employers Defy TJnlon. CHICAGO, May 5. The crisis in-thi teamsters' strike 13 expected to como tomorrow. The State-street merchants have decided to send out all wagons to make deliveries in all parts of the city. As far as possible these wagons will be guarded by Deputy Sheriffs and in some cases by the local police. It is tho in tention to place two men on eacn wagon, so far as the number of depu ties "already sworn in will permit. " , Sheriff Barrett had 200 'deputies in service tonight and said "taat he thought this number would be ample for the work outlined tomorrow. If it is not, it is said he will conclude that the Sheriff's office and the local police are not able to control the situation and a request will be made for the State Militia. Governor Deneen has said that he will order out the troops if the request is made, by Sheriff Barrett, and upon the failure or success of the at tempt at retail deliveries to be made tomorrow depends the coming of the troops. Fifteen wagons were sent out today by the large dry goods and department stores, and all of them made deliveries without Interruption. On each of these wagons rode two Deputy Sheriffs. It was the success of this attempt at de livering goods that prompted the stores to cjecidc to send out tomorrow prac tically their full force of wagons. Either because of threatened appear ance of the troops or because of the addition to the police force in the shape of Deputy Sheriffs, there was much less rioting .and fighting in the- dawn-town streets, today than on any- day this week. The wagons of the express com panies hav4 all carried a gttard araaed with a rifle or double-barreled shot gun and went between the depots and express offices without serious Inter ruption. An order Issued early In the day by Chief of Police O'Neil 'directing that all persons should be prevented from following up wagons as they went through the streets had much to do with the absence of rioting. Assaults in Hcmoto Sections. While there was less rioting in the down-town streets, numerous assaults were committed in all parts of the city remote from the principal business sec tions. Three coal wagons were attacked at (Concluded on Third Pase.) CONTENTS TODAY'S PAPER The Weather. TE3TERDATS Maximum temperature. 71 deg.; minimum. '44. Precipitation, none. . TODAT'S Cloudy with showers, cooler; winds becoming southerly. The War la the Far East. Rojestvensky noes to meet Nebogatoffa squadron. Page 3. Russian torpedo-boats seen off Japaneas port. Page 3. NebosatofC dodged Japanese ships by chang ing route. Page 3. Japan renews complaint to France and Rus sia may protest to Holland. Page 3. Ferelga. All great men of Britain attend farewell banquet to Ambassador Choate. Page 8. Germany anxious for reciprocity treaty with America. Page 5. Cuba refuses to favor Britain lest she offend United States. Page 8. Zemstvo Congress meets in St. Petersburg. Page S. ' '. . National. Plans for Celilo Canal approved and con tracts soon to be let. Page . Attorney-General Moody gives opinion oa power of Congress over railroad Tat es. Page . Governor Davis recalled from Panama. Page 2. Domestic Union Pacific stockholders vote-to tares $100,000,000 of preferred stock. Page S. Final effort to break teamsters' strike to day will decide whether troops shall' called out. Page 1. Railroad Commission bill in Wisconsin. Page S. Fat Crowe turns up In Omaha asd tells story of wanderings. Page 3. Sport. Britt knocks out White in 20th round ia San Francisco and is given decision la lightweight championship. Page 1. PacMe Coat. Gugllelmo Is hanged- at Salem, showing a brave fr6nt at the end. Page 6. Trolley system af Tacoma' naay be ex tended to Portland. Page 6. Jtailrcad contracted 'for to open up Idaho forests; Page 6. ' Commercial and Mariae. Possibility ot local condensed milk war. Page 15. Four .hundred boxes of' California, berriea re ceived. Page 15. Irregular weather checks genera! trads throughout country. Page 15. Stock market relieved frora pressure.. Page -15. Chicago, wheat-tradera afraid- of crep" -report. Page 13. Activity la Ean Francisco grain market. Page 15. Young Tachtemaa sails small schooner lata Columbia from Gray's Harbor. Page 5. Pertltfd asd YleteKy. Councilman Sherrett's tale of bribery told the grand jury. Page 18. TVoa-aa oa trial for marker. Page 14. Orcgoa coaatlea are after Ekpositlea prisea. Page 14. Deschutes Land Company declares It will cemlte Its irrlgatioa project. Page M Tweatr-talrd street paving bWs worry Scecu- tive Board. Page 11. All ts.eaad(4at6a fr the Mayoralty am'(aaua tedsy Itave flgures to their thty, are mre T-Innnw Page X COM I 1 . I i A 4 A