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power is a legislative power and necessarily implies a range of legislative expression. We do not sit as a board of revision to substitute our judgment for that of the Legislature or of the commission lawfully constituted by it as to matters within the province of either." It is also held in an early case of the Court of Appeals, State of New York, that the Legislature has no judicial authority and cannot bind the courts by declaratory law. So much the more then may it be held as a corollary that the Legislature has no power to delegate its legislative functions.

Now here we have in the State of New York, Public Service. Commissions which exercise judicial as well as legislative functions. If that be the case it might be just as well for us now and here in this Convention to make this body constitutional in structure and in power so as to leave without doubt their acts and in such shape that they cannot be questioned. The importance of the questions which are passed upon by these commissions, the amount involved, the plenary powers given to them all would seem to indicate that we ought to vest them with such recognition that there will never be in the future any danger of their determinations being upset upon the ground of lack of constitutional authority. But I have this objection to the bill proposed by the Committee, that these commissions invested with such plenary powers, should not in my opinion be the creatures of any executive. I think it is wrong to make them appointive. I believe that they should be elective, and for a very good reason. They have powers which are legislative in their nature. It appeals to reason and analogy that the Legislature which vests them with this power ought to have some control over the body which exercises its functions and that the same power in the State which elects the Legislature ought to reserve to itself the power to elect an organization of such tremendous and gigantic influence. For that reason I am going to propose to amend it. First on page 1, line 6, after the word "be" strike out the words" appointed by the Governor by and with the advice and consent of the Senate," and insert the words "elected by the electors of the respective districts at the general election immediately preceding the date of expiration of their several terms." Now, I am by no means wedded to that proposition. In fact, I believe more strongly in the amendment which was proposed by General Wickersham and which was fortified by the statements of Mr. Clinton, except that I believe that that body ought to be elected instead of appointed. I think, perhaps, it is a mistake to freeze into the Constitution now these bodies in their present form. I prefer the form of the Wickersham amendment as to giv ing the Legislature the right to diminish the size of these commissions or the number of districts where the commissions may

have jurisdiction. I think the Wickersham form as an amendment would be preferable, but I believe that, and I hope that the Convention may apply the same principle with respect to these officers, for I believe that the concensus of opinion of this Convention now stands for their election and that it applies the same as it will to judicial officers. The Public Service Commission, or Commissions now have judicial powers. Is it not absurd to have the Court of Appeals elected and the Supreme Court judges elected and reserve to the Governor, or rather impose upon the Governor a duty and a responsibility so great as that of the appointment of bodies which have, not only judicial power but legislative power as well.

On page 2, my amendment proposes to strike out the words, "The senate on the recommendation of the governor stating the grounds on which removal is recommended," and inserting in place thereof, the following, "Concurrent resolution of both Houses of the Legislature if two-thirds of all the members elected to each House concur therein," making that section conform to Article VI, Section 11, of the Constitution, which provides for the removal of judges of the Court of Appeals and justices of the Supreme Court.

Now, the section as amended would read, "Any commissioner may be removed by concurrent resolution of both Houses of the Legislature, if two-thirds of all the members elected to each House concur therein." Now, the reason why I advocate that amendment is this: You have, as I said, provided for the appointment of two bodies of gigantic powers wielding tremendous influence. Now, these men are very often appointed, I have heard it said, and there is a general prevailing opinion that it is true- that they have been appointed because they have been agreeable to certain interests in the State. Now, if those powers baneful in their influence are exercised, they have to be exercised through the appointing power, namely: The Governor. Now, how absurd it is to expect that so long as they are the docile tools of the powers to which they owe their appointment, there will be any chance of their removal! Analogy, history, logic and common-sense all dietate that we ought to have a Constitution which is harmonious in all its parts, applying the same philosophy and the same reasoning to each separate section and article. If you vest the Public Service Commissions with this tremendous power, give them judicial powers and then subject them to the same method of removal that you do the judges of the Court of Appeals and the justices of the Supreme Court. It is quite reasonable that the Legislature should have this power of restraint upon a body or bodies which arrogate their functions. The Legislature gives to these bodies legislative

powers; ought not the Legislature to have the right to supervise the fair and just exercise of those powers? Why should not the Legislature have the right to determine whether those powers are properly exercised? It is absurd to think that a Public Service Commission appointed for certain private reasons is going to be disturbed in the tenure of its office by a Governor who has yielded to influences in their appointment. As long as they are docile and obedient, they are going to hold down their jobs to the end of their terms. The only possibility of removal proceedings being instituted by a Governor is perhaps on the change of an administration for partisan purposes, a Governor might then institute removal proceedings. Now, if we are going to treat this subject in a sensible and philosophical way, let us do it harmoniously and according to the rules of analogy, giving to them the powers of the Legislature and the powers of the courts and then subject them to two limitations: First of all, election by the people-make them responsible to the people and not to an instrument; secondly, if they fail to administer their duties properly, permit the body whose funetions they usurp and arrogate to initiate proceedings for their removal.

Mr. Chairman, I hand up the amendments I


The Secretary By Mr. Griffin. Page 1, line 6, strike out the word" appointed" and all of line 7 and insert in place thereof, the following: "elected by the electors of the respective districts at the general election immediately preceding the date of expiration of their several terms." Page 2, line 11, strike out the words" the Senate on the recommendation of the Governor stating the grounds on which such removal is recommended" and insert in place thereof the following: "concurrent resolution of both houses of the legislature if two-thirds of all the members elected to each house concur therewith."

Mr. Clearwater - Of all the propositions before the House, the suggested amendment of the gentleman from New York, Mr. Wickersham, strikes me as being far the most advisable for adoption by the committee and the Convention. I have, however, very grave doubt as to the wisdom of making the public service commissions constitutional bodies. Everybody admits that there must be some supervision of public utilities. It is absolutely imperative in this stage of our civilization that the State and the republic should supervise, to some extent at least, the action of these large public service corporations. It is unnecessary to discuss the Interstate Commerce Commission. If its actions were up for discussion, very much might be said in criticism of its actions. I have long doubted whether the experimental stage of the activities of public service commissions had so far passed that




it was wise to make them constitutional, irremovable bodies. As Mr. Hale, the chairman of the Public Utilities Committee, very well said, their duties are largely quasi-legislative; they are inquisitorial; they are investigative; they are executive and also they are judicial. Never in the history of our civilization have so many diverse and distinctive functions been united in any body as in these public service commissions. I think it very inadvisable, sir, to adopt the proposed amendment submitted by the Committee on Public Utilities, which provides: "The existing public service commissions are continued and the commissioners now in office shall hold their offices until the expiration of their Each commission shall have the jurisdiction, powers and duties it now has, but nothing herein contained shall prevent the Legislature from enacting laws not inconsistent with this section." If this amendment be adopted by the Convention and by the people, it would be entirely beyond the power of the Legislature to deprive the public service commissions of any of the functions which they now possess. As I have stated, and as I think must be apparent to every reasonable man, the exercise of those functions as they are now exercised is experimental and we have not as yet thoroughly tested their advisability and their necessity. If they are to be made a constitutional body or constitutional bodies, the amendment suggested by Mr. Wickersham is far more elastic, far more capable of adjustment to the demands for the necessities or exigencies of the future than is the one. suggested by the committee. Mr. Wickersham's amendment says, "There shall be one or more public service commissions." entirely agree with the gentleman from Erie, Mr. Clinton, and with Mr. Wickersham that there may be very grave doubt whether within the next twenty years we shall need more than one public service commission with these vast, encyclopedic powers that they now possess. Mr. Wickersham suggests that the commissioners shall be appointed by the Governor by and with the advice and consent of the Senate and shall hold office for five years. Here is the wise provision of the Wickersham amendment: Until the Legislature shall otherwise provide, the existing commissioners are continued with the jurisdiction and powers at present enjoyed by them." Now, if we make them constitutional officers, I suppose that we ought for the time being to continue the powers that they now possess, but I think it will be very hazardous to write into the Constitution beyond the peradventure of change by the Legislature that they shall possess those powers and exercise those functions for the next twenty years, because, mark you, sir, if the provision gets into the Constitution, to be adopted by the people at the coming election, it will never be removed during the twenty years of its probable existence.


The Wickersham amendment would authorize the Legislature, if it came to pass that some of the functions, some of the powers to-day exercised by the Commission if it were not for the restrictions of parliamentary usage I would say some of those usurped by the Commission — to change, to modify, to meet new conditions a most important thing in dealing with public service corporations. Why, sir, I am not at all certain but that we are upon the eve of a great change in the motive power which in the future will propel these furnish power for the operation of these large public service corporations which would require perhaps an entire change of function and of power. It might be difficult to procure, if the recommendation of the committee becomes a constitutional provision. I recommend to the very careful consideration of the delegate, not only the wisdom but the importance of making such constitutional provision as may be adopted flexible and elastic. We are really in a state of flux over all this matter. As Mr. Hale very truly said, only thirteen of the forty-eight States of this Union have public service commissionsMr. Wickersham-Oh, no. Mr. Chairman, will the gentleman yield? Twenty-six out of forty-eight, according to the last count. I think I am right, Judge Hale?

Mr. Clearwater I misunderstood.

Mr. Hale

All States but two. Forty-six States.

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Mr. Wickersham - There are commissions in forty-six States, and in twenty-six of them the commissions are appointed by the Governor or by some similar authority.

Mr. Clearwater Do I understand in the rest they are constitutional bodies?

Mr. Hale - In thirteen they are in the Constitution, but in forty-six they are in the law.

Mr. Clearwater-But they are in only thirteen States they are constitutional bodies?

Mr. Hale Yes. I would like to make my answer complete, Mr. Chairman. They are in the Constitution of every State that has had a constitutional convention in the last ten or twelve years. Mr. Clearwater-So I understand you, sir. So I understand you, sir. All the States in the Union have provisions for amending their Constitutions. Peradventure they see the necessity of making the public service commission a constitutional body. Therefore it is true, as I either stated or intended to state-perhaps owing to the imperfections of my English I did not clearly indicate what I had in my mind in only thirteen of the States, of the forty-eight States are public service commissions constitutional bodies. I suppose the inference which Judge Hale desires the Convention to draw from the fact that in all of the states which have held constitutional conventions since the organization of public service

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