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where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."
It is undoubtedly true that many of the controversies arising between a shipper and a common carrier, which are to be decided by the Inter-State Commerce Commission, were, before the passage of that Act, the subject of common-law proceeding, and of investigation by a petit jury. For instance, actions against a common carrier for violation of contract, or for breach of duty, in the transportation of passengers or property, were, before the Inter-State Commerce Act, the subjects of common-law actions, in which juries were regularly empanelled. All of these matters are now cognizable by the Commission, at the instance, not only of persons who are actually aggrieved, but of any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization, that chooses to take the initiative-whether aggrieved or not. (Sec. 13)
No provision is made in the Act for trial by jury in any case, and this right, instead of being preserved, as demanded by the Constitution, seems to be utterly destroyed and set at naught, by vesting jurisdiction in the Commission.
(d) Upon the question of costs the Act is entirely one-sided. By the eighth section the common carrier is made liable to the person injured for the full amount of damages sustained, "together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs of the case." It is thus made the duty of the court to award an attorney's fee in every case in which damages are recovered, no matter how trivial the controversy may be. And there is no limit whatever to the amount which the court may grant. Each court is the sole judge of what is "reasonable," and there is no appeal from its decision.
On the other hand, there is no provision made for the payment of costs or attorney's fees to the common carrier in case it is successful. No matter how groundless the complaint; no matter how utterly devoid of merit the
action or suit may be, the common carrier is awarded no costs of any kind.
Whether this inequality infringes the Constitutional prerogatives of the common carriers is another of the questions which the courts must decide.
(e) The next question that will arise in considering the effect of the Inter-State Commerce Act is, whether it does not conflict with paragraph 5 of Section 9 of Article I. of the Constitution of the United States, which provides that : "No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another."
While the Act in question does not, in express terms, give any preference to the ports of one State over those of another, it would be sufficient, so far as the objects of this provision of the Constitution is concerned, if it could be demonstrated that the effect of the legislative measure would accomplish the result prohibited by the Constitution.
We do not intend to examine the question of fact raised by persons interested in this Act, whether its effect will be to create a preference in favor of some ports over those of others, but it is sufficient for our purposes to refer to the sec
tion of the Constitution which may cover such an argument if it should be made.
(f) Finally, the question will arise whether the effect and consequence of the Inter-State Commerce Act is to violate the Fifth Amendment to the Constitution, which provides, inter alia, that no person shall "be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation."
Without venturing into a detailed discussion upon these subjects, we have endeavored to impartially present the salient points which arise from a consideration of this important Act. It is the first attempt on the part of Congress to concentrate into the hands of a Commission powers that are at once judicial, commercial, and inquisitorial, and the decision of the Supreme Court of the United States upon this important subject will be awaited with the most intense anxiety and interest by the people of the United States.
* See as to abrogation of contracts, ante pp. 27, 28.
SALARY OF COMMISSIONERS, PRINCIPAL OFFICE AND REPORTS OF COMMISSION, AND MISCELLANEOUS PROVISIONS.
Salary of Commissioners.
ACH Commissioner shall receive an annual salary of $7,500, payable in the same manner as the salaries of judges of the courts of the United States. (Sec. 18.)
Secretary of Commission.
The Commission shall appoint a secretary, who shall receive an annual salary of $3,500, payable in like manner. (Sec. 18.)
The Commission shall have authority to employ and fix the compensation of such other employees as it may find necessary to the proper performance of its duties, subject to the approval of the Secretary of the Interior.