QUESTIONS OF THE DA Y. — XXXVIII. THE Inter -State Commerce Act AN ANALYSIS OF ITS PROVISIONS BY JOHN R. DOS PASSOS OF THE NEW YORK BAR AUTHOR OF THE LAW OF STOCK BROKERS AND STOCK EXCHANGES," ETC. :UHI7BRSIT7] NEW YORK & LONDON G. P. PUTNAM'S SONS 8i^c ^nitkcrbothct ^riss 1 88 7 w 6- ! i COPYRIGHT BY JOHN R. DOS PASSOS 1887 Press of G. P. Putnam's Sons New York SYNOPSIS OF CONTENTS. PAGB Introduction . . . . . . . xi CHAPTER I. History of Inter-State Commerce Legislation . i Containing review of decisions of Supreme Court of the United States upon inter-State com- merce. CHAPTER 11. To WHAT Common Carriers the Inter-State Commerce Act Applies .... 9 First : Common carriers by land ... 9 Second : Common carriers partly by railroad and partly by water . . . . .10 Third : Terms " railroad " and " transportation " defined . . . . . . .11 Fourth : Internal State commerce not affected . 1 2 CHAPTER III. Rates, Charges, and Fares which Common Car- riers may Collect . . . . .14 First : Power of Congress to fix charges con- sidered 15 Munn vs. Illinois, 94 U. S., 113, examined . 15 iv Synopsis of Contents. PAGB Second : Meaning of " reasonable and just " . 17 In what ways the carrier's charges may be investigated ...... 20 CHAPTER IV. The Acts which the Common Carrier is Pro- hibited FROM Doing by the Inter-State Commerce Act 21 First: " Unjust discrimination " . . .21 I. — Does the Act regulate services rendered before its passage . . . . .22 II. — '' Unjust discrimination," how estab- lished ....... 22 III. — " Unjust discrimination " a question for courts or Inter-State Commission . 23 IV. — Exceptions under second section . . 24 V. — Remedies under second section . . 24 Second : Giving undue or unreasonable prefer- ence, or subjecting any person, etc., to un- due or unreasonable prejudice, prohibited . 24 The different acts which are unlawful under this section 25 Carriers dealing with each other . . . 26 To afford facilities, etc., to each other . . 26 Franchises and contracts abrogated by Inter- State Commerce Act . . . .27 Third : " Long- and short-haul " section dis- cussed ....... 28 I. Argument of Hon. Shelby M. Cullom in U. S. Senate on this section (?iote^ . . 33 II. Editorial of N. V. Times, Jan. 15, 1887, on same subject (hoU) . . . .40 Synopsis of Contents. PAGE Resume of first, second, third, and fourth sections ....... 41 Fourth : Pools and division of earnings pro- hibited ....... 45 Fifth : Combinations not to make carriage of freight continuous, prohibited . . .46 Sixth: Exceptions from the operation of the Act, 47 CHAPTER V. Duty of Common Carriers to Prepare, Print, AND Publish Schedules of Rates, Fares, AND Charges 49 Schedules of freight rates and passenger fares, how to be kept ...... 49 Preparing schedules and contents thereof . . 49 Advance in rates . . . . . '51 Reduction in rates . . . . . -52 Carrier not to demand, etc., greater or less compensation than published rates . -52 Filing schedules, contracts, etc., with Com- mission . . . . . . -52 Publishing joint rates, etc. . . . -53 Remedies against carrier for refusing, etc., to file and publish schedules, etc. . . 54 Comments on sixth section . . . -55 CHAPTER VI. Penalties and Remedies for Violating Act . 58 First : Carrier liable for full amount of dam- ages and attorney's fee to party injured . 58 vi Synopsis of Contents. PAGE Second : Remedy of party injured — either Com- mission or courts . . . . -59 Third : Carrier violating, etc., any provision of Act guilty of misdemeanor and liable to fine of $5,000 for each offence . . . .60 Fourth : Each day's continuance of illegal pool- ing of freights a separate offence . .61 Fifth : Carrier receiving freight for foreign country neglecting to keep schedules, liable to penalty ....... 61 Sixth : Carrier failing to obey mandamus, pun- ishable as for contempt . . . .61 Seventh : Failure to obey order of Circuit Court, a contempt . . . . . .61 Eighth : General penalties for disobeying, etc., lawful orders, etc., of Commission . .61 Ninth : Existing remedies by statute and at common law, preserved . . . -63 Comments upon preceding sections . . •63. I. — Criminal remedy against carrier . . 63 II. — Civil remedies of party injured . . 64 III. — Remedies of complainants whether dam- aged or not . . . '. . '65 CHAPTER VII. The Inter-State Commerce Commission . . 67 Title of Commission . . . . '67 Number of Commissioners and manner of ap- pointment ....... 67 Term of office ....... 68 Removal ........ 68- Synopsis of Contents. vli Political complexion and qualification of Com missioners ...... Powers of Commission .... First : To inquire into management of busi- ness, etc. ..... Second : To keep informed as to method etc., of business .... Third : Right of Commission to obtain full and complete information Fourth : Power to require attendance of wit nesses, production of books, etc. Fifth : May invoke aid of U. S. courts . Duty of U. S. courts in premises . Sixth : Any one of Commissioners may insti tute proceedings, etc. Seventh : Commission may require annual re- ports Rules of, and practice before. Commission First : How Commission is to conduct pro- ceedings ...... Second : Majority to constitute quorum Third : Commission may make and amend general orders Fourth : Any party may appear in person or by attorney ..... Fifth : Votes and official acts of Commission to be recorded .... Sixth : Commission to have seal . Seventh : Either Commissioner may adminis- ter oaths ..... Method of procedure before Commission . Who may make complaint 68 69 69 69 69 69 70 70 70 71 73 73 73 73 73 73 73 74 74 74 vili Synopsis of Co7itents. PAGE First : Any person, etc., complaining of any- thing done, etc., or omitted, etc. . . 74 Second : Complaint forwarded by Railroad Commission or Railroad Commissioner of any State, etc. . . . . '74 Third : Commission may institute inquiry of its own motion . . . . -75 Proceedings, how begun . . . -75 Contents of petition . . . . '75 Answer of carrier . . . . '75 Reparation or satisfaction by carrier . . 76 Trial, etc., by Commission . . . -76 When complaint not to be dismissed . . 76 Form of report of Commission . . .76 Recording reports of investigation . -77 Decision of Commission and proceedings thereunder ...... 77 Failure of carrier to obey judgment . . 79 Appeal ....... 82 Petition to Circuit Court presented by Dis- trict Attorney, etc. . . . .82 Comments upon sections creating Commission, 83 First : Powers of Commission analyzed. . 84 Second : Commission's method of investiga- tion examined . » . . . . > ^S Third : Consideration of question of enforc- ing the judgment of Commission . . 86 Fourth : Constitutional questions — {a) Power of Congress to " regulate " com- merce . . . . . . -91 (b) Power of Congress to delegate its au- thority . . . . . .93 Synopsis of Coritents. ix I'AGK [c) Right to trial by jury under seventh amendment to Constitution of U. S. . 95 (^) Question of costs considered . . 97 {e) No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of an- other ....... 98 (/) Private property cannot be taken for public use without compensation . 99 CHAPTER VIII. Salary of Commissioners, Principal Office, and Reports of Commission, and Miscellane- ous Provisions 100 Salary of Commissioners ..... 100 Secretary of Commission ..... 100 Other employees ...... 100 Offices of Commission ..... loi Fees of witnesses ...... loi Expenses of Commission ..... loi Principal office of Commission .... loi Reports of Commission to Secretary of Interior, 102 Appropriations ....... 103 Act takes effect April 5, 1887 .... 103 APPENDIX. Containing Certified Copy of Inter-State Com- merce Act in full 105 INTRODUCTION. PERHAPS no measure that ever passed Congress equals In importance the law which has now become famous under the name of the Inter-State Commerce Act. It is the first attempt on the part of the National Gov- ernment to regulate, if not to control, a private commercial business ; for, although the trans- portation of passengers and property is regard- ed as one in which the public has an interest, it Is, In Its main features, not different from any- other private commercial occupation. The capital invested in such enterprises is generally furnished by individuals, and the business, in Its financial features, is conducted purely for private gain. For the past few years, however, public attention has been steadily concentrating around the subject of the government of rail- road corporations, and, step by step, the Legis- latures of the different States have encroached upon the prerogatives of these bodies, and XI xii Introduction. interested themselves by various means in their affairs. Finally, by one bold and single leap, the Congress of the United States has, through the Inter-State Commerce Act, sought to ab- solutely direct all of the business of railroad transportation in the United States. This piece of legislation, although not new in thought, as we shall hereafter see, is entirely novel in the history of the United States Gov- ernment ; and when it passes through the ordeal of the courts, and its constitutionality is challenged, it will be found that outside of some disjected dicta of judges, there is no precedent for it in the decisions of the United States courts. What its effect will be, assuming the perfect constitutionality of the Act, upon the prosperity or progress of the country, and upon the busi- ness and financial interests of the railroad corporations, no one can foretell ; but that it will be a factor of the most vital importance, in the management of railroads, will be readily conceded. Whether the Act will be injurious to the financial condition of all the railroad corporations, or favorable to some and detri- • mental to others, it is impossible to predict. Introdiictiolu x i i i But this is certain : So much power is lodged in the hands of the Inter-State Commerce Com- missioners, that it lies mainly with those officials to determine whether the law will be salutary or hurtful, either to the railroads or the public ; because there can be no question that if the Act is broadly and wisely interpreted, and prudently administered, by the Inter-State Commerce Commissioners, all interests may be subserved, if not benefited. This move of the National Legislature is one strongly towards the direction of centralization of power in the hands of the Federal Govern- ment. Strangely enough, its chief promoters and advocates are representatives from the South. The next natural step must be the purchase and absolute control, by the same power, of all this vast railroad property. The subjects involved in the Inter-State Commerce Act are so interesting, and the peo- ple of the country are so deeply involved in its results, that no apology need be made for this little treatise, which embraces a history of the law, an analysis of its different provisions, as well as other matters generally connected with the subject. CHAPTER I. HISTORY OF INTER-STATE COMMERCE LEGISLA- TION. ATTEMPTS to regulate the business of common carriers, and to prescribe rates of charges for transporting persons and prop- erty, and for storing or handHng the latter, date back at least to 1870, when the people of Illinois incorporated in their constitution sev- eral sections relative to elevators or store- houses, where grain or other property was stored for a compensation ; and on April 25, 1 87 1, to carry out the purposes of this consti- tutional provision, an act of the General Assembly of Illinois was passed, which was sustained as constitutional by the Supreme Court of the United States. (Munn z'. Illinois, 94 United States, 113.) In that case the Court held : '' That where warehouses are situated and their business is carried on exclusively within a State, she may, as a matter of domestic concern, prescribe reg- 2 The Inter- State Commerce Act. ulatlons for them, notwithstanding they are used as instruments by those engaged in inter- State, as well as in State, commerce ;/and, until Congress acts in reference to their inter-State relations, such regulations can be enforced, even though they may indirectly operate upon com- merce beyond her immediate jurisdiction." At the same term of the Supreme Court of the United States (October, 1876), an act of the General Assembly of the State of Iowa, entitled '' An act to establish reasonable max- imum rates of charges for the transportation of freight and passengers on the different roads of this State," approved March 23, 1874, was also sustained as constitutional, and held not to be a regulation of inter-State commerce. (Chicago, Burlington, & Ouincy R. R. Co. v. Iowa, 94 United States, 155.) A similar statute of Wisconsin, prescribing a maximum of charges, to be made by the Chicago & Northwestern R. R. Co., for trans- porting persons or property within the State, or taken up outside of the State and brought within it, or taken up inside and carried with- out, was also upheld as constitutional. (Peik V. Chicago & Northwestern R. R. Co., 94 United States, 164.) TJie Inter- Stale Commerce Act. 3 The Supreme Court of the United States, in these cases, held that the various States of the Union had the power to pass laws limiting the amount of charges by railroad companies for fares and freights, and prescribing rules for the operation of the business of carriers, unless re- strained by some contract in the charter of the corporation ; and it was further held that the States had such right, even though the income of the corporations may have been pledged as security for the payment of obligations incurred upon the faith of the charter. In reply to the argument made, and forcibly pressed upon the Supreme Court, that these various statutes of the States of Illinois, Iowa, and Wisconsin violated that part of the Con- stitution of the United States which confers upon Congress power to regulate commerce among the several States, the Court in sub- stance answered, that until Congress acts in reference to the relations of common carriers to inter-State commerce, it was within the power of the different States to regulate the fares, etc., of such common carriers, so far as they are of domestic concern, even though such legislation might indirectly affect personi^ or thincrs without the State. 4 The Inter- State Commerce Act, The above cases would seem to have settled the question in favor of the rights of the States to prescribe the charges, fares, etc., of common carriers, operating or conducting their business within the States, even if the conse- quences were to affect persons or things outside of the State. But such was not the fact ; for in October, 1886, the Supreme Court of the United States re-examined the whole subject in a controversy arising between the Wabash, St. Louis, and Pacific Railway Company and the State of Il- linois (118 U. S. Rep., 557). In that case it appeared that the Wabash Railway Company had violated a statute of Illinois, enacting that if any railroad company shall, within that State, charge or receive for transporting passengers or freight of the same class, the same or a greater sum for any distance than it does for a longer distance, it shall be liable to a penalty for ttnjust discrmiination. The Wabash Rail- way Company made such discrimination in regard to goods transported over the same road or roads, from Peoria in Illinois, and from Gil- rrian in Illinois, to New York, charging more for the same class of goods carried from Gil- man than from Peoria, the former being eighty- The Iiita'- Stale Commerce Act. 5 six miles nearer to New York than the latter, this difference being in the length of the line within the State of Illinois. The Supreme Court of the United States decided, through Mr. Justice Miller, that this statute of Illinois was unconstitutional, as infrinorinof the clause of the Constitution of the United States, divine to Congress power to regulate commerce be- tween the States. The Court said : '' It cannot be too strongly insisted upon, that the right of continuous transportation, from one end of the country to the other, is essential, in modern times, to that freedom of commerce from the restraints which the State might choose to impose upon it, that the com- merce clause was intended to secure. This clause, giving to Congress the power to regu- late commerce amoni^ the States and with for- eign nations, as this Court has said before, was among the most important of the subjects which prompted the formation of the Constitu- tion. (Cook V, Pennsylvania, 97 U. S., 556, 574; Brown v. Maryland, 12, Wheat/, 419, 446.) '' And it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among tlic IVE 6 The Inter- State Co7nmerce Act. States, which was deemed essential to a more perfect union by the framers of the Con- stitution, if, at every stage of the transport- ation of goods and chattels through the country, the State, within whose limits a part of this transportation must be done, could impose regulations concerning the price, com- pensation, or taxation, or any other restrict- ive regulation interfering with and seriously embarrassing this commerce. . . . As re- ^ stricted to a transportation which begins and ends within the limits of the State, it (the law of Illinois) may be very just and equitable, and it certainly is the province of the State Legislature to determine that question. But when it is attempted to apply to transportation through an entire series of States a principle of this kind, and each pne of the States shall attempt to establish its own rates of transpor- tation, its own methods to 'prevent discrimina- tion in rates, or to permit it, the deleterious influence upon the freedom o/ commerce among the States, upon the transit of goods through those States, cannot be overestimated. TJiat this species of regulation is one which must be, if established at all, of a general and national character, and cannot be safely and wisely re- The Inter- State Commerce Act. 7 mtitted to local rules and local regulations, we tlmik is clear, Jroni what has already been said. And if it be a regiclation of commerce, as we think we have demonstrated it is, and as the Illinois Court concedes it to be, it vucst be of that national character, and the regulation can only appropriately exist by general rttles and principles, which dema}id that it should be done by the Congress of the United States 2inder the commerce clause of the Constit2ction'' This last decision of the Supreme Court of the United States furnishes the " motive and the cue" for the Inter-State Commerce Act, which was approved on the 4th day of February, 1887, and which was the result of a compro- mise agreed on by Conference Committees of the Senate and House of Representatives. The power of Congress to pass a measure of this kind arises out of the third subdivision of Sec. 8, Art. I., of the Constitution of the United States, which provides that it shall have power '' to regulate commerce zuith for- eign nations, and among the several States, and with the Indian tribes!' The Supreme Court of the United States, as we have shown by reference to the Wabash ■case, held, that the various States of the Union 8 The Inter- State Commerce Act. had no right to regulate the traffic and business, of raihoads running through their respective boundaries into other jurisdictions, and that such power existed solely in the Congress of the United States. But it must be remarked, that the language of Mr. Justice Miller, which is quoted above, so far as the Inter-State Commerce Act is con- cerned, the provisions of which were not before the Court, should be regarded as obiter dictum.y and used only in a most general sense. When the Act, therefore, creating the Inter- State Commerce Commission comes before the Supreme Court for interpretation, it will be treated and reo^arded as a new and orlgrinal question, to be determined upon general prin- ciples, and without a precedent to guide the judges in their decision. It is not necessary for the purposes of this work, indeed it woqld be fruitless to endeavor to attempt, to predict what the result may be when this Act comes before the Federal courts for interpretation. Our purpose will be sub- served in laying before the readers, indepen- dently, and without bias, briefly and generally, the main ?nd striking arguments which occur to us in our analysis of the different sections of this important law. CHAPTER II. TO WHAT COMMON CARRIERS THE INTER-STATE COMMERCE ACT APPLIES. THE first section of the Inter-State Com- merce Act, by the most general and comprehensive language, undertakes to include within its provisions two descriptions of car- riers. Common Carriers Wholly by Railroad. First : The Act applies to any common car- rier or carriers engaged in the transportation of passengers or property, wholly by railroad, from one State or territory of the United States, or the District of Columbia, to any other State or territory of the United States, or the Dis- trict of Columbia, or from any place in the United States to an adjacent foreign countr}^ or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any 9 lo The Inter- State Comvterce Act. place in the United States to a foreign country and carried from such place to a port of trans- shipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or in an adjacent foreign country. (Sec. I.) Cofnmou Carriers Partly by Railroad and Partly by Water. Second : It also applies to any common car- rier or carriers engaged in the transportation of passengers or property partly by railroad and partly by water when both are used, under (i) a common control, (2) inanage7nent, (3) or arrangement, for a continuous carriage or ship- ment from one State or territory of the United States, or the District of Columbia, to any other State or territory of the United States, or the District of Columbia, or from any place in the United States to an adjacent foreign country, or. from any place in the United States through a foreign country to any other place in the United States, and also to the transportation, in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of trans- The Inter- State Commerce Act. 1 1 shipment, or shipped from a foreign country to any place in the United States and carried to such place from a port of entry either in the United States or in an adjacent foreign country. (Sec. I.) Term ''Railroad'' Defined. Third: The term ''railroad," as used in this first section, is also defined to include all bridges and ferries used or operated in con- nection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease ; and the term "■ transporta- tion" shall include all instrumentalit]es~of~ship= ment or-ea^ riage . (Seci.) It will thus be seen, by a perusal of the first section of the law, that its language embraces all common carriers of passengers or property, doing business with more than one State, whether such carriers are natural persons, or corporations ; whether they are aliens, or citi- zens, or foreign or domestic corporations. Under the broad language of the first sec- tion. Express and T ranspo rtation companies are likewise included in the law, when their busi- ness runs into different States. 12 The Inter- State Commerce Act. And Warehousemen and Storage-keepers are perhaps also embraced within the meaning of the law, where property is intrusted to their care, and they undertake to deliver it in another State, because the concluding language of the first section prescribes that all charges made *' for the receiving, delivering, storage, or hand- ling of such property " shall be reasonable and just. Internal State Commerce Not Affected, Fourth : It is expressly provided in the Act, that its provisions shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or territory as aforesaid. (Sec. i.) This exception was undoubtedly incorporated in the Act, in deference to the decisions of the Supreme Court of the United Stsrtes, which hold that the power of Congress does not extend to regulating commerce completely in- y ternal. (Gibbons v. Ogden, 9 Wheat, i.) A common carrier, accordingly, may transact two classes of business, viz., one wholly within any State — in which case the business is un- The Inter- State Co7iimerce Act, ^3 affected by the Act ; and the other between the different States, territories or foreign countries, where he is bound to comply with the terms of the Statute. CHAPTER III. RATES, CHARGES, AND FARES WHICH COMMON CARRIERS MAY COLLECT. BY the last paragraph of Section i. the compensation of common carriers is fixed, and it is there declared that '' all charges made for any service rendered or to be rendered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiving, delivering, storage, or handling of such property, shall be reasonable and just ; and every unjust and unreasonable charge for such service is prohibited and declared to be ti7i- lawfuir (Sec. i.) And the fourth section of the Act makes it unlawful for the carrier to charge or receiv.e any greater compensation for a shorter than for a longer haul, irrespective of the question as to whether such compensation is '* reasonable and just." It is an absolute prohibition. (Sec. 4.) First : The first question which naturally 14 TJie Intci^- State Commerce Act. i 5 arises under this section is as to the power of Congress to fix the charges of common carriers. Is this a ''regulation of commerce'' within the meaning of the Constitution ? Some Hght is thrown upon this matter by the opinion of the Supreme Court of the United States (Munn v. Ihinois, 94 U. S., 113), where the general subject is fully examined, and where the court held, that, under the powers inherent in every sovereignty, a government may regulate the conduct of its citizens towards each other, and, when necessary for the public good, the manner in which each shall use his own property. It has in the exercise of these powers been customary in England from time immemorial, and in this country from its first colonization, to regulate ferries, common car- riers, hackmen, bakers, millers, wharfingers, inn-keepers, etc., and in so doing to fix a maxi- mum of charge, to be made for services rendered, accommodations ficrnisJied, and articles sold. When the owner of property devotes it to a use, in which the public has an interest, he, in effect, grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public for the common crood as lono^ as he maintains the usc^ 1 6 The Inter- State Commerce Act, He may withdraw his grants by discontinuing the use. The Supreme Court, in the same case, held that common carriers exercise a sort of pubhc office, and have duties to perform in which the pubHc is interested. Their business is therefore affected with a pubHc interest. Mr. Chief-Justice Waite, who deHvered the opinion of the court in that case, said : '* In countries where the common law prevails, it has been customary from time immemorial for the Legislature to declare what shall be a reasojiable conipensatio7i mider such circumstances, or, per- haps more properly speaki7ig, to fix a maxi- 7num, beyo7id which any charge made would be ttnreasonable. Undoubtedly, in mere private contracts relating to matters in which the pub- lic has no interest, what is reasonable must be ascertained judicially, but this is because the Legislature has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that ex- ists, the ri^ht to establish the maximum of charge, as one of the means of regulation, is The Inter- State Commerce Act, 1 7 implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms or forego the use." (See also Chicago, Burlington, and Ouincy R. R. Co. V. Iowa, 94 U. S., 155 ; Peik v. Chicago, etc., Ry. Co., 94 U. S., 164.) But the reasoninof of these cases does not cover, it seems, the fourth section of the law which we are considering, because Congress does not attempt to fix therein any limit or price of compensation for the carrier ; but arbitrarily declares that a common carrier shall not re- ceive a greater or as great a compensation for a short as for a long haul, entirely irrespective of the merits of the service, and what it is reasonably and justly worth. Second : The next point that will arise, assum- ing the power of Congress to fix the charges, is as to what constitutes a " reasonable and just " charge. As the law stood before the Inter-State Com- merce Act passed — at common law — if the par- ties to a contract did not stipulate the amount to be paid for any given service, the sum rccovera- 1 8 The Liter- State Commerce Act. ble, by the person furnishing the service, was a just and reasonable sum. In the absence of special contract, this rule applied to common carriers as well as other persons. But as the law now is, under the Inter-State Commerce Act, the parties are no longer al- lowed to make absolute contracts, for the ren- dering of a service in the transportation of passengers or property, or in the receiving, delivering, storage, or handling of the same. The common carrier and shipper are no longer permitted to deal with each other as they please, because, so far as the amount to be re- ceived for the services is concerned, if they con- tract for a sum not '' reasonable and just," such contract is void, because it is prohibited. For- merly the shipper could say to the common carrier : "■ If you will transport certain goods from Chicago to New York, I will pay you one dollar per hundred weight " ; and such a con- tract was good, and could be enforced by the common carrier, regardless of the fact that such charge was excessive or unreasonable, because, in the absence of fraud, the law would not in- terfere with the private bargains of suitors. It allows its subjects to make their own bargains. But now it is otherwise ; no contract can be The Inter- State Commerce Act. 1 9 enforced between the shipper and the carrier, where the amount claimed for the service is not just and reasonable. The question as to what is a " reasonable and just" charge is to be determined by the courts, as intimated by the Supreme Court of the United States in the cases to which we have heretofore alluded (Munn v. Illinois, 94 U. S., p. 1 1 3 ; Chicago, Burlington, & Ouincy R. R. Co. V, Iowa, 94 U. S., 155; Peik (7. Chicago, etc., Ry. Co., 94 U. S., 164) ; and evidence would be admitted on the part of both the shipper and the common carrier to show what was a reason- able and just charge. What the nature of such evidence will be, depends upon each individual case. The ultimate decision of the question would, in an ordinary action at common law, be left to a jury to determine ; but under the 13th, 14th, and 15th sections of the Inter-State Commerce Act, this question, of what is a reasonable and just charge, may also be determined by the Inter-State Commerce Commission. But as under the 9th section of the Act, any person claiming to be damaged by a common carrier may bring suit In his name, and on his own behalf, in any District or Circuit Court of 20 The Intel— State Commerce Act. the United States of competent jurisdiction, it follows that the compensation of common car- riers will hereafter be largely regulated by the decision of a jury ; and that practically the rates, fares, and charges for the transportation of pas- sengers and property will be placed by the In- ter-State Commerce Act in the hands of that uncertain and capricious body. The question, whether a charge for service made by a common carrier is reasonable and just, can arise in two ways : I. If the sum claimed for the service by the carrier has not been paid, if it be not reasona- ble and just, it cannot be recovered from the shipper. II. If such amount has been paid, the ship- per may recover the excess back from the car- rier, either in an action at law under the 8th and 9th sections of the Act, or by appeal to the Inter- State Commerce Commissioners under the 9th and 15th sections thereof. But the injured party cannot invoke or pursue both remedies. (Sec. 9.) III. In addition to these civil remedies, the common carrier may be prosecuted, for taking unreasonable and unjust charges, by indictment as for a misdemeanor. (Sec. 10.) CHAPTER IV. THE ACTS WHICH THE COMMON CARRIER IS PRO- HIBITED FROM DOING BY THE INTER-STATE COMMERCE ACT. THE Inter-State Commerce Act enumerates a great many acts on the part of com- mon carriers which are specifically prohibited. We shall proceed to enumerate them in their order, with such comments as each section sug- gests. Uiijtcst Discriiiiination. First : The second section declares that if any common carrier subject to the provisions of the Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensa- tion for any service rendered, or to be ren- dered, in the transportation of passengers or property, subject to the provisions of this Act, 2 2 The Inter -Slate Commerce Act. than it charges, demajids, collects, or receives from any other person or perso7zs for doing FOR HIM OR THEM A LIKE AND CONTEMPORANE- OUS SERVICE IN the tra7isportation of a like kind of traffic under substantially similar CIRCUMSTANCES and CONDITIONS, such common carrier shall be deemed guilty of unjust dis- crimination, which is hereby prohibited and declared to be unlawful. I. A literal reading of this section of the Act would seem to make it apply to services rendered by a carrier before the passage of the Act ; because the language is : '' That if any com- mon carrier subject to the provisions of this Act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation y^r any service rendered,'' etc., it shall be guilty of un- just discrimination. But the obvious intent and spirit of the law were to make it apply to cases occurring after it went into effect. II. The offence of ''unjust discrimination" is made up of two distinct branches, — viz., frst, the mere charging or demanding a greater or less compensation for any service rendered, or to be rendered, than that charged or demanded The Liter- State Commerce Act, 23 from other persons for doing a like and con- temporaneous service, constitutes the offence ; second, the act of collectzno- or receivino-th.^ com- pensation is also a misdemeanor. III. The question, as to what is the " char- ging," ''demanding," ''collecting," or "re- ceiving " of 3. greater or less compensation than that charged, demanded, collected, or received from any other person or persons, for doing for him or them " a like and contemporaiieoics service in the transportation of a like kind of traffic, tender stibstantially similar circum- stances and conditions^' is one for the courts or for the Inter-State Commerce Commission, as the case may be, to determine. We consider it more fully in connection with the "fourth" section of the Act. The lano^uac^e is ambiguous and indecfeive, and this section of the law was the subject of much criticism in Cons^ress wh^n.the Bill was discussed. (See debates of Congress, January, 1887.) But be that as- it may, the evident object of the framers of the law was to seek to establish a uniform and unvarying rate of compensation for services of the same or a similar description rendered in the transportation of passengers or property. 24 The Inter -State Co7ninerce Act, IV. It will be observed, however, that the language of this second section does not apply- to the receiving, delivering, storage, or hand- ling of property. V. The remedies of the party injured under the second section are the same as those fur- nished for a violation of the first section, and are to be found by reference to Sections 8, 9, and 10 of the law. Ufidue Preference ; Unreaso7iable Prejudice. Second : The third section provides that it shall be unlawful for any common carrier sub- ject to the provisions of this Act to make or give any ttndtte or ttnreasonable preferejice or advantage to any particiilar person, company. Jinn, corporation, or locality, or any particular description of traffic, in any respect whatsoever,, or to subject any particular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or 2cnreason- able prejudice ^r disadva^ttage in any respect whatsoever. Every common carrier subject to the pro- visions of this Act shall, according to their re- spective powers, afford all reasonable, proper y The Inter- Slate Commerce Act. 25 and equal facilities for the interchange of t^^affic between their respective lines ^ and for the re- ceiving.forwar dingy and delivering of passengers and property to and from their several lilies and those connecting therewith, and shall not dis- criminate in their rates and charo-es betweeri siich con7iecting lilies ; but this shall not be con- strued as requiring any such common carrier to give the* use of its tracks or terminal facilities to another carrier engaged in like business. (Sec. 3.) The first paragraph of this section declares as unlawful six distinct acts, viz. : 1st. To make or give any undue or un- reasonable preference or advantage to any par- ticular person, company, firm, or corporatio7i. 2nd. To make or give any such preference to ^iViy particular locality. 3d. To make or give any such preference to 2.xiy pa7'ticular description of traffic in any respect whatsoever. 4th. Or, to SUBJECT any particiLlar person, company, firm, or corporation, to any undue or tcnreasojtable prej'tidicc or disadvantage, in any respect iv hat soever. 5th. Or to subject 2Lwy partictclar locality to such prejudice ; 26 TJie Inter- State Commerce Act. 6th. Or to subject any particular descrip- tion of traffic to such prejudice or disadvan- tage. This section involves two distinct issues of fact, viz. : first, as to what is the making or giv- ing of an undue or unreasonable preference or advantage ; or, second, what is the subjecting of any person, etc., to any tutdue or u7ireasonable prejudice or disadvantage in any respect what- soever. These questions of fact must be determined by the United States courts, or the Inter-State Commerce Commission, as the case may be. Carriers Deali7ig with Each Other. The second paragraph of this third section enjoins upon each common carrier three distinct duties in its dealings with other carriers, viz. : 1st. To afford all reasonable, proper, a7td eqzial facilities for the inter chafige of traffic be- tween their respective lines. 2d. Afford such facilities for the receiv- i'Jigy forwarding, and deliveri7ig of passengers and property, to and from their several lines, and those connecting therewith ; and 3d. Shall not discriminate in their rates and charges betwee^i stcch connecting lines. The hiter-State ComTnerce Act. 27 The performance of these duties are all ques- tions of fact, to be determined by the courts of the United States, or the Inter-State Commerce Commission, as in the cases arising under the pre- ceding paragraph of the same section. They all involve important and delicate issues of fact. Abrogation of Franchises a?id Contracts. Of course, if this legislation is sustained, it results in practically abrogating a great many of the important privileges and franchises now enjoyed by different common carriers, either existing by virtue of grants to them from different States ; or by virtue of private con- tracts entered into between such carriers and private persons, or by carriers with each other. I. All grants of franchises by States to com- mon carriers, subject to the provisions of this Act, authorizing them to levy or collect a cer- tain rate for mileage upon passengers, or a cer- tain rate upon freight, or grant of any other description of special right, prerogative or fran- chise, inconsistent with the Inter-State Com- merce Act, are vitiated and rendered nugatory ; because, under the second subdivision of Article VI. of the Constitution of the United States, the 28 The Inter -State Co^nmerce Act. laws of the United States shall be the supreme law of the land. II. So all 2^nvate contracts, between carriers and individuals, relating to the transportation of persons or property, which are inconsistent with the terms of this Act, are likewise vitiated and rendered nugatory. III. And all traffic, freight, or other agree- ments between common carriers subject to this law, relating to the transportation of passengers or freight, are likewise vitiated. IV. The question will accordingly occur in this connection, whether the Act in this respect is not contrary to the Fifth Amendment to the Constitution of the United States, which pro- vides that no person shall be deprived of his property without due process of law, '' nor shall private property be taken for public use with- out just compensation." Long- and SJioid-'' HatiV Provision. Third : The fourth section of the Act deals with the '' short-haul " subject, and provides that it shall be unlawful for any common carrier subject to the provisions of this Act to charge or receive any greater compensation in the ag- gregate for the transportation of passengers or of The hiter- State Commerce Act. 29 like kind of property, render sitbstantially simi- lar circumstances and conditio7is, for a shorter tha7i for a longer distance over the same line i7i the same direction, the shorter beine included within the longer distance ; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge and receive 2S great compensation for a shorter as for a longer distance : provided, however, that upon applica- tion to the Commission appointed under the provisions of this Act, such common carrier may, in special cases, aftc7^ investigation by the Com- Tnission, be authorized to cha^^ge less for a longer than for shorter distances for the trans- portation of passengers or property ; and the Commission may from time to time prescribe the extent to which such desio^nated common o carriers may be relieved from the operation of this section of the Act. (Sec. 4.) I. This section creates a very unusual pre- cedent in American legislation, for the principle that underlies the making of all laws, especially of a penal character, viz., that they are fixed and immutable rules for the government of the subjects of a country, is here departed from, and the law is relaxed at the will of the Com- m,issio7i named in the Act. 30 The Inter- State Commerce Act. Until the Commission acts, however, it is a misdemeanor for a common carrier to charge a greater compensation for a shorter than for a longer distance. (See Sec. lo.) The Commission is clothed with the extra- ordinary power of rendering nugatory this penal act, by prescribing the extent to which a common carrier may be relieved from its operation. Whether the Congress of the United States has the right to delegate its powers under the Constitution, in the respect here adverted to — to suspend the operation of a law — is one of the questions which the courts must decide. It is very evident that Congress was firmly convinced that, in many instances, the common carrier was, and would be, justified in charging a greater or as great a compensation for a shorter than for a longer haul, or the unusual power of rendering nugatory the effects and penalties of the Act would not have been con- ferred upon this quasi-judicial body — the Inter- State Commerce Commission. II. The exact meaning and effect of this fourth section were conceded to be ambiguous and doubtful in the debates in Congress when this law was discussed. (See debates of Con- The Inter- State Commerce Act. 31 gress, January, 1887.) It will, accordingly, not be regarded as remarkable, if the courts should find it impossible to interpret language which apparently presented no definite mean- ing to the minds of the legislators who framed and passed the Act. III. '' It shall be unlawful for any common carrier ... to charge or receive 2Siy greater compensation in the aggregate for the trans- portation of passengers, or of like kind of property tender substantially similar circum- stances and conditions for a shorter than for a lono'er distance . . . but this shall not be construed as authorizing any common car- rier ... to charge and receive as great compensation for a shorter as for a longer dis- tance . There are two distinct inhibitions in this section : first, the carrier is prohibited from charging a greater compensation for a shorter than for a longer haul ; and, second, then the Act goes on to declare that it shall not be con- strued as authorizing the carrier to charge " as GREAT compensation for a shorter as for a longer distance." The Act says to the carrier : "You shall not charge a greater compensation for a shorter 32 The Inter- State Commerce Act. than for a longer haul under substantially simi- lar circumstances, etc. — nay, you shall not even charge as great a compensation for a shorter as for a longfer distance — whether the same circumstances exist or not." The meaning is badly expressed, but it seems to us that this is the only interpretation that can be put upon this branch of the section. IV. Considered together, the language of the entire section presents the same difficulty ; and it may absolutely fail for indefiniteness or want of meaning. '' It shall be unlawful . . . to charge . . . any greater compensation in the aggregate for . . . transportation ^lnder substantially similar circum- stances and conditions f 07'' a shorter than for a longer distance T This is a prohibition to the carrier that he shall not charge a greater compensation in the aecfreofate for a shorter haul made under sttb- stantially si^nilar circumstances and conditions. Here is a qualification. Suppose the qualifica- tion does not exist ? Suppose the '' shorter haul " to be made under substantially dissimi- lar circumstances and conditions ? Can the carrier charge or receive a greater compensa- tion for the '' shorter haul " ? It would seem TJie Inter- State Commerce Act. 33 not ; for the remaining language of the para- graph says most emphatically : '' but this shall not be construed as authorizing any common carrier within the terms of this Act to charge or receive as great compensation for a shorter as for a longer distance." And this subsequent language seems to wipe out the preceding qualification altogether. If this view be cor- rect, the remedy of the carrier is to apply to the Inter-State Commerce Commission for a suspension of the prohibition. But, as we have said, the language is faulty, ambiguous, and per- haps so confused as to be incapable of inter- pretation. V. But assuming that the clause of this section (which contains the words, '' but this shall not be construed as authorizing . . . any . . . carrier ... to charge . . . as great compensation for a shorter as for a longer distance ") does not destroy the qualifi- cation, and this is the view adopted by all of the advocates of the Act, as is seen in the notes herewith,' the question occurs as to ' Remarks of Hon. Shelby M. Cullom in the Senate of the United States, on tlie tenth day of January, 18S7. Mr. Cullom addressed the Senate in favor of the conference re- port, confining his remarks principally to the fourth section as to the long and short haul. The bill, he said, had stood remarkal'ly well the test of tlie general and particular scrutiny to which it had been 34 ^^^ Inter- State Cor}i7nerce Act. the meaning of the words "■ under substantially similar circnvistances and conditions, over the same line, in the same direction, the subjected. Its general provisions had, for the most part, met with approval, while the feature most strongly objected to (the fourth section) was misunderstood if not misrepresented. He said : " The objection made to this section as it now stands, which, if it were well founded, I should regard as the most serious, is that it is indefinite and ambiguous, that it is open to more than one con- struction. Of course, we cannot undertake to say positively what construction will be put upon the language used by the courts if they shall be called upon to determine the meaning of the section. It seems to me, however, that but one construction can be reason- ably and properly placed upon this section, especially when it is considered, as it must be, in connection with the other provisions of the bill, and that its meaning is perfectly clear. But in view of the erroneous construction that seems to have been put upon this section in some quarters, I deem it proper to state that there seems to be no difference of opinion as to its meaning among the conferrees on the part of the Senate. ... I think the Senator from Connecticut (Mr, Piatt) and the Senator from Tennessee (Mr. Harris) understand the section as I do, and I think I am justified in saying that we would not approve it if w^e supposed or- believed it to mean what some complain that it does mean or may be made to mean. The short-haul section simply undertakes to lay down in specific terms a rule or principle which, as I have always contended, is already in effect contained in other provisions of the bill. The first requirement of the bill on the subject of rates is found in the first section, and is that all rates shall be ' reasonable and just.' This is in effect a declaration that, under similar circum- stances and conditions, a greater sum shall not be charged for a shorter than a longer distance, because under such circumstances it would not be ' reasonable and just ' to make such a charge. The next requirement of the bill that afifects this question is found in the first part of the third section, which (quoting the first part of the third section) forbids giving an undue or unreasonable preference or TJie Inter- State Conimerce Act. 35 shorter belnof Included within the loncrer dis- cs t> tance." This Is language of the most general and advantage to any particular locality. This is likewise a declaration that a greater sum shall not be charged for a shorter than for a longer haul under similar circumstances and conditions, because such a charge would be the making or giving of an ' undue or un- reasonable preference or advantage' to one particular 'locality,' or would subject some other particular ' locality 'to an * undue or un- reasonable prejudice or disadvantage.'" Mr. Cullom then recited section four, and said : "As I understand it, this section, as it now stands, simply pro- hibits a railroad corporation from charging a greater aggregate sum — not a higher rate — for a shorter than for a longer distance over the same line, in the same direction, and under substantially similar circumstances and conditions, when the shorter is included within the longer distance. There is no other prohibition made in positive terms. The declaration, that ' this shall not be construed as author- izing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance,' does not in terms prohibit the charging as much for a shorter as for a longer distance, but simply withholds the legislative sanction from the making of such a charge. This qualifying clause negatives the inference that might possibly be drawn from the language of the sec- tion without these words, namely, that an equal charge for a shorter distance is authorized by inference, because only a greater charge is prohibited. This qualification, therefore, leaves the question cf wheth^ an equal amount can be charged for the shorter distance to be determined by the provisions of the bill to which I have already referred, requiring all charges to be reasonal)le, and forbidding the giving of an unreasonable preference or advantage to any particular locality. . . . The recjuirement of the fourth section, then, is that as between shipments of the same kind, in tlie same direction, over the same line, and made under substantially similar circumstances and conditions, a greater sum shall not be charged for a shorter than for a longer haul when the shorter comprises part of the longer haul — 36 The Inter- State Com^nerce Act. comprehensive character. It refers to all of the circtwistances and co7iditions existing at the time of the transportation. It is useless to un- not that a higher rate shall not be charged per mile, but that a greater aggregate sum shall not be charged. . . . The limitations placed upon the prohibition that is made are very significant, and they must not be overlooked. They require that in determining the sum that may be charged for a shorter as compared with a longer distance the requirement must be made : " I. Between shipments ' of like kind of property.' " II. ' Under substantially similar circumstances and conditions.' " III. * Over the same lines.' " IV. In the same direction. " V. When the shorter is ' included within the longer distance.' " When the act is to be applied in any given case to measure the charge that may be made for any distance, as compared with the longer distance, all of these limitations must be taken into account, and they must all apply to the case — not three or four of them, but all of them. The first, fourth, and fifth of these limitations do not ap- pear to call for any explanation, but the meaning of the second and third may need some explanation. As I understand them, the words * circumstances and conditions ' mean the conditions that govern railway traffic and the circumstances under which it is transported. To my mind these words are full of meaning. They comprehend all the circumstances and conditions that may justify differences in rates, such as competition with other railroads and with water routes, the volume and character of business at different points, the difference in terminal expenses, and the cost of service in each case. If the words used were ' the same circumstances and conditions,' in- genious railway gentlemen would be able to show that the circum- stances and conditions were never exactly the same in any two cases. And they might also be able to show that they were not ' similar,' if that was the word used. But the words ' substantially similar ' impart enough latitude to the comparison to enable the courts to exercise a sound discretion and common-sense in passing upon cases that may arise. So far as any one railroad company is concerned, The Inter- State Commerce Act. 37 dertake to specify what these " circumstances and conditions " may be ; because each case must be judged by its individual facts. therefore, the sum which it may charge for a haul from one end of its railroad to the other end becomes the maximum amount it can charge for any shorter haul over that road in the same direction and under substantially similar circumstances and conditions when the shorter distance is included within the longer. " But the question that seems to trouble those who object to the section as it stands is, whether the maximum thus fixed is the sum which a railroad company charges upon shipments originating at and destined to points upon its own road, or whether the maximum is the sum which it accepts as its share of a through rate upon ship- ments passing over its road which originate at or are destined to points upon another road. It seems clear to me that there can be but one answer to that question. In the first place, the measure of the charge that may be made for the shorter distance is the sum that is charged for a longer distance over the same line and under substantially similar circumstances and conditions. The rates fixed by a railroad company between points upon its own road are clearly rates upon one line, or, in the terms of the bill, ' the same line.' A railroad company can make and control the rates upon its own road, and the section says that in making such rates the short-haul principle shall be observed. A railroad com- pany cannot control rates over the roads of another company. But when two or more companies unite in making joint rates over their respective roads, they become in the eye of this bill one line, and this section says that the short-haul principle must be observed in making rates over that line, the two or more roads composing it being, with- in the meaning of the section, the same line so far as such joint rates are concerned. The word railroad is used throughout the bill, and the word line is used only in tliis section. The courts will be bound to assume that the word line means something different from the word railroad, or it would not have been used in this one instance when the word railroad would naturally have been used if somctliing different had not been intended. The wt)rd line means a railro.id 38 The Inter- State Commerce Act. It also exclusively refers to a transportation over the same line (does this mean the same company? Is the word "line" synonymous or a combination of railroads. It means a route. Section 7 of the bill requires the carriage of freights to be ' treated as one continuous carriage from the place of shipment to the place of destination,' and this could not be done in the case of shipments over connecting Toads, if the word used in this section was ' railroad, ' instead of line. . . . The joint through rates which are made by two or more railroad -companies, between points upon their respective roads, are made over an entirely different and distinct line from that over which any one of the companies individually makes rates. And they are also made •under different * circumstances and conditions ' from those which govern and determine rates made over a single railroad. The two transactions are separate and distinct, neither being necessarily gov- erned by the other. Furthermore, the making of joint through rates is specifically recognized by the bill in the section requiring publicity of rates, and nowhere in the bill can any thing be found in relation to the division of a joint rate by connecting roads. I am satisfied, therefore, that the only construction that is warranted by the lan- guage of the section is the one I have given it, and that, instead of requiring rates to be measured by the percentage of a through rate which a road accepts, or of requiring through rates over connecting roads to be an aggregation of the local rates over each road, as some have claimed, the section as it stands simply requires that each rail- road company shall observe the short-haul principle as to its own rates, and that the same principle shall also be observed by a com- bination of railroads as to the joint through rates between points upon their respective roads agreed upon by such a combination." Mr. Hoar asked Mr. Cullom whether the construction put upon the section by the Senate conf errees (that it only prohibited the char- ging of a larger gross sum for the shorter than for the longer haul, and did not prohibit a larger proportionate charge) was the sense in which the House conferrees construed it. Mr. Cullom in substance rephed that there was no question but that every meml^er of the conference committees of both houses un- The Liter- State Comme^xe Act. 39 with ''company"?), in the same direction, the shorter beinor included within the lonsrer dis- tance. qualifiedly understood that the fourth section was not to be construed as a pro rate per ton per mile law, but as a prohibition to charge in the aggregate the same amount for the short as for the long dis- tance, unless under certain circumstances. . . . One of the ele- ments in the objection to the bill was the misinterpretation of this fourth section. There has seemed to be a determination to construe this section as a pro rate per mile section. lie undertook to say that no member of the conference committees ever dreamed that the language of the fourth section could be so construed. Mr. Hoar suggested the case of the export trade of Boston (amounting to $125,000,000 a year), and on the materials of which the Massachusetts railroads were allowed a rebate of 5 per cent, on account of the ports of New York, Philadelphia, and Baltimore be- ing 250 miles nearer to Chicago than the port of Boston ; and he in- timated that, under the fourth section, the Massachusetts railroads would either have to cut down their local rates or Boston would lose its foreign trade. Mr. Cuilom thought that perhaps it was a little unfortunate that Boston was further from the centre of gravity than New York, but he did not think there was any thing in the bill which would prevent railroads carrying produce to Boston just as cheaply as the railroads carrying produce to New York from Chicago. Omaha, or San Francisco. Mr. Hoar, suggesting that Mr. Cuilom misapprehended his mean- ing, restated the proposition. Mr. Cuilom in substance replied that, so far as the fourtli sec- tion was concerned, there was nothing in it which would prohibit railroad companies taking these products at exactly the same rate to Boston as to New York. It was pretty difficult, he said, to pass any act providing any regulation whatever which woukl not appear to in- terfere harshly with what somebody was doing. He had no disposition to interfere with the foreign commerce of the countr)-. He would very much prefer to see the foreign commerce increase, if it could he done ii W iA 40 The Intc7^- State Comrnerce Act. VI. Finally, there is no doubt that '' the Commission may from time to time prescribe the extent to which such designated common consistently with the protection of the interests of the great mass of the people outside of the seaports. . . , They were met here with this condition of affairs, — unjust discrimination, extortion, secret rebates, and all manner of unjust practices, which had been going on for years by railroad corporations because there had been no regulation of them by the Government of the United States. Now they had before them a bill which undertakes, in a moderate degree, to apply to them some sort of regulation. The bill provided that there should be no secret rebate, no unjust discrimination, no extortion, and that there should be no greater charge for a short haul than for a longer haul (on the same line) under exactly similar- circumstances and conditions. He did not believe that the bill would interfere with the foreign trade of Boston. He did not believe that the Senator's constituents would be interrupted in tlieir foreign commerce in the slightest degree by this bill. But if Congress was going to regulate railroad corporations at all, and to stop the discriminations by which towns were built up and towns were destroyed, there must be something in the bill to do it,. or else the bill might as well be laid on the table. [From editorial in New York Times, January 15, 1887 : THE LONG AND SHORT HAUL. " The debate of the last two days in the Senate on the Inter-State Commerce bill has turned almost wholly upon the long- and short- haul provision of the fourth section. The explanations and argu- ments which have been made confirm us in our original opinion of the meaning and effect of this provision. Our confidence in the view first taken was somewhat unsettled by the protests of prominent, railroad men who ought to be capable of understanding the exact meaning of the bill, and who have exceptional knowledge of the facts and requirements of the railroad business. But we are con- vinced that their protests have been based either upon a misconcep- tion or a wilful perversion of the long- and short-haul section. Their obstinacy in adhering to an untenable ground was well illustrated ia * The Liter- State Commerce Act, 4 1 carrier may be relieved from the operation of this section of the Act." VII. It will thus be seen that the preceding the speech of the railroad Senator from California, Mr. Leland Stan- ford, on Monday. Almost immediately after Senator CuUom had made a clear exposition of the intent and meaning of the long- and short-haul provision, Mr. Stanford based his whole argument on an utter perversion of its fair construction. " Th^essence of this section is contained in the following words : ' It shall be unlawful for any common carrier subject to the provi- sions of this act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line in the same direction, the shorter being included in the longer distance.' As Senator Cullom said, the qualifying words and phrases are full of meaning, and they furnish all the elasticity to the provision that is necessary to enable railroads to conform to the requirements -of suc- cessful management. It was at first assumed by some of the object- ors that this would require the charges for long distances to be pro- portioned to those for shorter distances. But the expression ' in the aggregate ' plainly shows that it applies only to the total charge for the entire transportation. The same meaning is involved in the prohibition of unjust discrimination against localities. No one has yet shown that the obvious injustice of charging more for transporta- tion from a nearer point to the same destination than from a more remote point, where the circumstances and conditions of the traffic are substantially the same, is justified on any general principle. If it is justified in any case, it must be due to exceptional circum- stances, and then the prohibition would not apply. " It has been claimed that this provision would compel railroads either to reduce their local rates or to increase their through rates in many cases where it would be disastrous to their interests and those of the communities which they serve. But it lias nothing to do with the relations of through and local charges in the proper sense of the terms. The circumstances and conditions of through and local traf- 42 The Inter- State CoTntnerce Act, sections which we have analyzed, viz., the first, second, third, and fourth, deal with the question of the compensation of the common carrier, fie are substantially different. Under the bill a railroad engaged in inter-State commerce could not, in fixing its local rates, discriminate against localities by charging more for a shorter than for a longer distance for the same kind of freight transported under similar con- ditions ; neither could it make a like discrimination in through rates, and it is hard to see why it should be permitted to do so. In almost -any conceivable case it would be an unjust and unjustifiable discrimi- nation between localities. " It has been said that the bill would give an advantage to shorter lines over longer ones between the same points. But the prohibition applies only to charges over the same line, and would not prevent a long line from putting its rates as low as those of a rival short line. It has also been said that it would force a railroad company control- ling its own charges on its own road to conform them to its share of the compensation for a long haul over a line composed of several roads. But aside from the dissimilar circumstances and conditions in such cases the prohibition would only apply to the one line over which the traffic was carried, of however many different railroads it might be composed. " Again, it has been claimed that the act would prevent the reduc- tion of rates to meet the competition of water routes which serve the same points as the railroads. But the existence of such routes and the necessity of low rates to compete with them and do any business to and from the points which they reach, would constitute such a difference of circumstances and conditions that within the require- ments of business necessity the bill would undoubtedly allow the discriminination. ' ' Much stress has been laid upon the effect \\ hich would be produced upon the grain interests of the Northwest and the cotton, iron, and other interests of the South. It is said that in order to bring our great grain supplies to the seaboard and send the surplus to foreign markets through rates must be lower than the railroads can afford for intermediate traffic. But suppose the circumstances and conditions The Inter -State Co7Jiinerce Act. 43 and the circumstances and method of charo-Inc- o o and receiving the same. By the first section the common carrier is are substantially similar — that is to say, a carload or a trainload of grain is destined for the port of New York, either for the local mar- ket or for shipment abroad, what reason is there why a line of rail- roads bringing it here should be allowed to charge less in the aggre- gate from Dakota than from Minnesota, from Minnesota than from Illinois, from Illinois than from Ohio ? If it may charge as much for the shorter distance that is certainly as large a liberty as it can reasonably ask for. The restriction will have nothing to do with what may be charged for grain by the bushel or flour by the barrel between intermediate points. " Lov,' rates for cotton from the South to Northern distributing points are certainly an advantage, but it is no advantage to the South or the North that when it is to be transported under the same cir- cumstances and conditions a discrimination should be exercised against certain shipping points and in favor of others at a longer distance from its destination. The charge for transporting by the bale between local points would be in no way affected. So, it is said, the develop- ment of the coal and iron interests of the South depends on low rates of transportation to or beyond the Ohio River. But the bill would certainly not interfere with such rates. They could be made as low as the railroads could afford or were willing to make them. Rates for iron or coal would not be affected by those for any other kind of property. Coal or iron sent by the trainload over through lines would not be affected by the rates of transportation of the same ma- terials locally under different circumstances and conditions. Tlie simple fact would be that the same line taking coal or iron by the car or by the train from one point could not charge more for the same service from another point at a greater distance from the common destination, or more from the same point to a nearer destination than to one more remote, the circumstances and conditions of the traffic being substantially similar. " In short, we do not see how this prohilMtion as to the short and long haul, fairly construed and judii-iously apjilied, can injure cither 44 TJie Inter- State CoiuTncrce Act. prohibited from charging any more than a reaso7iable and just amount for its services ; by the second section the carrier is enjoined against tcnjustly discrnninating against any of its patrons, by charging a greater or less com- pensation for similar services — in other words, its rates must be uniform, the same to all, without any discrimination ; by the third sec- tion the carrier is prohibited from giving any undue or unreasonable preference to any indi- vidual, etc., or location, or particular descrip- tion of traffic, or subjecting such individual, etc., locality, or particular description of traffic, to any ttndue or unreasonable prejudice or dis- advantage ; and by the fourth section the car- rier is prevented from charging a greater or as great a compensation for a shorter than for a longer haul. By the foregoing sections it will be perceived that Congress has not only limited ox fixed the amount of compensation which a common car- the interests of the railroads, or those of the producers and shippers, or those of the business centres and seaports of the country. The outcry raised against it seems to have been partly the result of ig- norance or misunderstanding and partly the outcome of an objection of railroad managers to any regulation of the liberty which they have so often abused to the injury of the country and even to the proper- ties which they control."] The Intej'-State Commei^ce Act. 45 rier may hereafter receive, by making it '* rea- sonable and just," and leaving that question to be determined by the courts in the ordinary pro- cess of investigation ; but it has laid down rules which compel the carrier to make its rates uni- form and unvarlable, preventing all discrimina- tion and exception, save so far as the Inter-State Commerce Commission may prescribe. Pools and Division of Earnings Prohibited, Fourth : The fifth section of the Act deals with pools, and provides that it shall be unlaw- ful for any common carrier subject to the pro- visions of this Act to enter into any con- tract ^ agreement, or combi7iation with any other co7n7no7i carrier, or carriers for the pooling of freights of differe^it a?id competing railroads^ or to divide betwee7i them the aggregate or jict proceeds of the earnings of such railroads, or any portion thereof ; and in any case of an agreement for the 'pooling of freights as afore- said, each day of its continuance shall be deemed a separate offence. It is not within the scope of this treatise to discuss the very important and difficult ques- tions of the policy or public benefit grow- ing out of railroad frelLrht pools. Those 46 The Inter- State Commerce Act. subjects may give rise to very interesting phil- osophical discussions, but they are not now- germane because the Legislature has passed upon them, and by the section now involved has most emphatically condemned all railroad ''freight pools"; nay, more, it has prohibited the division of the aggregate or net proceeds of the earnings of different and competing rail- roads, or any portion thereof. Co7nbinatzo7is not to Make Carriage of Freight Continuotis, Prohibited, Fifth : The seventh section provides that it shall be unlawful for any common carrier sub- ject to the provisions of this Act to enter into any combination, contract, or agreement, ex- pressed or implied, to prevent, by change of time-schedule, carriage in different cars, or by other means or devices, the carriage of freights from being C07itintW2cs from the place of ship- 7nent to the place of destination ; and no break of bulk, stoppage, or interruption made by such common carrier shall prevent the carriage of freights from being and being treated as one continuous carriage from the place of ship- ment to the place of destination, unless such break, or stoppage, or interruption was made TJie litter- State Commerce Act. 47- in good faith for some necessary purpose, and without any intent to avoid or unnecessarily interrupt such continuous carriage or to evade any of the provisions of this Act. This section was evidently passed and should be read in connection with the first four sec- tions of the law, and especially of the third section, and properly comes after the fourth section, which relates to the short haul. Exceptions fro77i Operations of the Act. Sixth : By the twenty-second section of the Act it is provided : That nothing in this Act shall apply to : 1st. The carriage, storage, or handling of property free or at reduced rates for the United States, State, or municipal governments, 2d. Or for charitable purposes, 3d. Or to or from fairs and expositions for exhibition thereat, 4th. Or the issuance of mileage, excursion, or commutation passenger tickets ; 5th. Nothing in this Act shall be construed to prohibit any common carrier from giving re- duced rates to ministers of religion, 6th. Or to prevent railroads from giving free carriage to their own officers and employees. 48 The Inter- State Co77t7nerce Act. 7th. Or to prevent the principal officers of any railroad company or companies from ex- changing passes or tickets with other railroad companies for their officers and employees ; 8th. And nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies. Provided that no pending litigation shall in any way be affected by this Act. (Sec. -22.) CHAPTER V. DUTY OF COMMON CARRIERS TO PREPARE, PRINT, AND PUBLISH SCHEDULES OF RATES, FARES, AND CHARGES. ■Schedules of Freight Rates and Passenger Fares ^ How to be Kept. THE sixth section of the Act deals with the very important subject of schedules, which the common carriers, subject to its pro- visions, are enjoined to keep for the use of the public. By this clause it will be seen that the com- mon carriers are charged with the following duties. Preparing Schedtdes, I. Of printing and keeping for public inspec- tion schedules. n. These schedules must show the rates and fares and charges for transportation of passengers and property which such carrier 49 50 The Liter- State Co^nmerce Act, has established, and which are hi force at the- time upon its railroad, as defined by the first section of the Act. III. These printed schedules shall plainly state : 1st. The places upon its railroad between which property and passengers will be carried. 2d. The classificatiofi of freight in force upon such railroad. 3d. Shall also state separately the terminal charges, 4th. Any r2iles or ^regulations which in a?iy wise change, affect, or determine any part of the aggregate of such aforesaid rates, fares, and charges. IV. The schedules to be plainly printed in large type of at least the size of ordinary /^V^. V. Copies for the use of the public shall be kept in every depot or station upon any sucli railroad, in such places and in such form that they can be conveniently inspected. In addition to the above, common carriers receiving freight in the United States to be carried through a foreign country to any place in the United States shall also, VI. Print and keep for public inspection, at every depot where such freight is received for TJic Liter- State Commerce Act. 5 1 shzpme7it, schedules showing the through rates established and charged by such common car- rier to all points in the Uizited States beyond the foreig7i cou7ttry to which it accepts freight for shipment. Freight shipped as above, the through rate on which shall not have been made public, shall be subject to customs duties, as if said freight were of foreign production. (Sec. 6.) Advances in Rates. The section then deals with advance in rates, etc., and provides : I. That no advance in the rates, fares, and charges shall be made except after ten days public 7iotice. (Sec. 6.) II. This public notice shall state as fol- lows : 1st. The changes proposed to be made in the schedules then in force. 2d. The time when the increased rates, fares, or charores will iro into effect. III. These proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules i 71 force at the tir7ie and kept iox pitblic inspection. 52 TJic Inter- State Commerce Act, Reduction in Rates, Reduction in published rates, fares, or charges may be made withoitt previous public notice^ viz. : I. Notice of the reduction shall immedi- ately be ptiblicly posted. II. The changes made shall immediately be made public by printing new schedules ; or, III. Shall immediately be plainly indicated upon the schedules at the time in force. Carrier not to Charge, Demand, Collect, or Re- ceive Greater or Less Compensation than Published Rates, It shall be unlawful for the carrier to charge, demand, collect, or receive a greater or less compensation for the transportation of passen- gers or property, or for any services in connec- tion therewith, than is specified in such pub- lished schedules then in force. Filijig Schedules, Contracts, etc, with Commis- sion, The carrier must file with the Commission (within what time is not specified, but the in- The Inter- State Commerce Act, 53 tention seems to be that It should be done immediately). I. Copies (how many not stated) of its schedules of rates, fares, and charges established and published. II. Shall prornptly notify said Commission of all cha7iges made iji the saTne. III. Every carrier shall also fie with the Commission copies of all contracts, agree- ments, or arrangements with other common carriers in relation to any traffic affected by the provisions of the Act to which it may be a party. IV. In cases where passengers and freight pass over continuous lines or routes oper- ated by more than one common carrier, and the several common carriers operating such lines or routes establish joint tariffs of rates, or fares, or charges for such continuous lines or routes, copies of such joint tariffs shall also, in like manner, be fled with said Commission. Publishing Joint Rates, Fares, aiid Charges. Such joint rates, fares, and charges on such continuous lines so filed as aforesaid, shall be rcididQ public by the carriers — 54 T^Ji^ Inter- State Commerce Act. I. When directed by the CommisstoUy in so far as may, In the judgment of the Commis- sion, be deemed practicable. II. And the Commission shall from time to time prescribe the meastcre of ptcblicity which shall be given to such rates, fares, and charges, or to such part of them as it may deem it practicable for such common carriers to publish, and the places in which they shall be published. III. No common carrier, party to a joint tariff, shall be liable for the failure of any other carrier, party thereto, to observe and adhere to the rates, fares, or charges thus made and published. (Sec. 6.) Remedies against Carrier for Refusing or Neglecting to File and Publish Schedules or Tariffs. In addition to the penalties prescribed in the eighth, ninth, and tenth sections of this Act, if the carrier shall neglect or refuse to file ox pub- lish its schedules or tariffs of rates, fares, and charges, or any part of the same, such carrier shall be subject to a writ of mandamus — I. To be issued by any Circuit Court of the United States in the jtidicial distinct 7vherein iJie principal office of said common car- The hiter- State Couimcj-cc Act. 55 rier is situated ^ or wherever such offe7ice may be committed. II. And if such common carrier be 2^ foreign corporation, in the judicial circuit wherein such common carrier accepts traffic, and has a7t agent to perform such service, to compel compliance with the aforesaid provisions of this section. III. Such writ shall issue in the name of the people of the United States at the relation of the Commissio7ters appointed. IV. Failure to comply with its requirements shall be punishable as and for a contempt. V. The Commissioners, as complainants, may also apply, in any sucJi Circuit Court of the United States, for a writ of injunction against, and to restrain such carrieryr^;;/ receiv- ing or traiisporting property, within the places mentioned in the first section of the Act, 2cntil such common carrier shall have co7nplied with the aforesaid provisions of this sectioii of the Act. (Sec. 6.) Comments on Sixth Section. It will be observed by a careful reading of this important section of the Inter-State Com- merce Act, that the most stringent provisions are made for the preparation, publication, and filing of schedules, showing the rates, fares, and 56 The Inter- State Commerce Act. charges to be made by the carrier, for the transportation of passengers and property upon separate, or joint, or continuous roads. Not only that, but such carriers are compelled to file all joint-traffic agreements with the Inter- State Commerce Commission. A failure to do all or either of these require- ments subjects the offending carrier to an in- dictment for misdemeanor ; the carrier may also be enforced to perform its duties by the writ of mandamus ; and it may be restrained by injunction from transacting all of its business in the transportatiofi of property, as mentioned in the first section of the Act, until it complies with the law. It will also be observed that the jurisdiction of the Circuit Courts of the United States is enlarged for the purposes of the Act, and that a writ of mandamus may be issued against the carrier, not only in the judicial district '' wherein the principal office of said common carrier is situated," but in the district wherein S2ich offence may be committed. If the common carrier be a foreign corpora- tion, '' in the judicial circuit wherein such com- mon carrier accepts traffic, and has an agent to perform such service." Reading this section in connection with the The Inter- State Commerce Act. 57" other parts of the law, it is obvious that here- after the entire business of a carrier is in the hands of the pubHc. The charges of the com- mon carrier are not only fixed in advance by placing it in the power of a jury to specify what they shall be — '' reasonable and just," — but the carrier is compelled to print and publish them, with every detail, to expose its joint agreements with other roads, and to refrain from increasing its rates, no matter what the special circumstances may be, until it has given, in due form, a previous notice of ten days. No other business or occupation has ever been subjected to such an extraordinary control and espionage. But the whole issue is nar- rowed down to this proposition, viz. : Does this Act, in all of its parts, and considered as a whole, constitute a regulation of commerce by Congress ? If so, it is a valid act. But if !t be shown that the effect of an act is not to regulate but to destroy commerce, not to regulate but to interfere with commerce, to hamper or retard its growth, have the courts of the United States the power to inter- fere ? Have they the power to limit the legis- lative control of the subject ? CHAPTER VI. PENALTIES AND REMEDIES FOR VIOLATING ACT. THE general penalties of the Act are con- tained in the eighth, ninth, and tenth sections, but there are other special penalties provided for in the other sections, which we shall briefly allude to in this connection. First : Section 8 provides that in case any common carrier subject to the provisions of this Act shall do, cause to be done, or permit to be done any act, matter, or thing in this Act prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this Act required to be done, such common carrier shall be liable to the person or persons injured there- by for the full amount of damages sustained in consequence of any such violation of the pro- visions of this Act, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attor- ney's fee shall be taxed and collected as part of the costs in this case. Second : Sec. 9 — That any person or persons 5S The Inter- State Conivterce Act. 59 •claiming to be damaged by any common carrier subject to the provisions of this Act may eitJier make complaint to tJie Commission as herein- after provided for, or may bring suit in his or their ow7i behalf for the recovery of the dam- ages for which such common carrier may be Hable under the provisions of this Act in any District or Circuit Court of the United States of competent jurisdiction ; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt. In any such action brought for the recovery of damages the court before which the same shall be pend- ing may compel any director, officer, receiver, trustee, or agent of the corporation or com- pany defendant In such suit to attend, appear, and testify In such case, and may compel the production of the books and papers of such corporation or company party to any such suit ; the claim that any such testimony or evidence may tend to criminate the person giving such evidence shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person on tlie trial of any criminal i)roceeding. 6o The Inter- State Commerce Act. Third : Sec. lo. — That any common carrier subject to the provisions of this Act, or, when- ever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall wilfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this Act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall wilfully omit or fail to do any act, matter, or thing in this Act required to be done, or shall cause or willingly suffer or permit any act, matter, or thing so directed or required by this Act to be done not to be so done, or shall aid or abet any such omission or failure, or shall be guilty of any infraction of this Act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any District Court of the United States within the jurisdiction of which such offence was committed, be subject to a fine not to exceed five thousand dollars for each offence. To these penalties must be added some others, as follows : The Inter- State Commerce Act, 6i Fourth : Each day's continuance of an agree- ment between carriers to pool freight shall be deemed a separate offence. (Sec. 5.) Fifth : Where a common carrier, receiving freight in the United States to be carried through a foreign country, fails to print and keep for public inspection at the depot where such freight is received for shipment, schedules showing the through rates, such freight shall, before it is admitted into the United States from such foreign country, be subject to cus- toms duties. (Sec. 6.) Sixth : A failure to comply with the writ of mandamus issued to compel the performance of duties devolved on carrier by the sixth section, shall be punishable as and for a contempt. (Sec. 6.) Seventh : A failure to obey an order of the Circuit Court of the United States, requiring a carrier to appear before the Commission (and produce books if ordered) and give evidence, may be punished by the court as a contempt, (Sec. 12.) Eighth \ If It be made to appear to the Cir- 62 The Inter- State Coninierce Act. cuit Court, that the lawful order or require- ment of the Commission drawn in question has been violated or disobeyed, it shall be law- ful for such court to issue a writ of injunction or other proper process, mandatory or other- wise, to restrain such common carrier from further continuing such violation or disobedi- ence of such order or requirement of said Commission, and enjoining obedience to the same ; and in case of any disobedience of any such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other process incident to writs of injunction, against such common carrier, or persons fail- ing to obey such writ or process ; and said court may make an order directing such common carrier, or other person, so dis- obeying such writ of injunction or other pro- cess, to pay a sum of money not exceeding for each carrier or person in default the sum of five hundred dollars for every day after a day to be named in the order that such carrier or other person shall fail to obey such injunction or other process. Such money shall be payable as the court shall direct, either to the party complaining, or into court, or into the treasury; The Inter- State Commerce Act. 63 and payment thereof may, without prejudice to any other mode of recovering the same, be en- forced by attachment or order in the nature of a writ of execution, in Hke manner as if the same had been recovered by a final decree in personam in such court. (Sec. 16.) Ninth : Lastly, it is provided that nothing in this Act contained shall in any way abridge or alter the remedies now existing at com77ton law or by statute, but the provisions of this Act are in addition to such remedies : provided that no pending litigation shall in any way be affected by this Act. (Sec. 22.) Comments upon above Sections, It will thus be seen that the Act prescribes a full measure of remedies and penalties for a violation of its provisions, or any part thereof. We shall separate and briefly recapitulate them. Criminal Remedy. Under the tenth section of the Act an indictment lies in the following instances : First : Against any commoii carrier subject to the provisions of this Act, who, alone or with 64 The Inter- State Commerce Act. any other corporation, company, person, or party, shall wilfully do any matter or thing, etc., prohibited by the act, etc., etc., as enumerated in the said section. Second : Whenever such common carrter is a corporation, against any director or officer thereof, or any receiver, tricstee, lessee, agent, or person acting for or ei7tployed by such corporation, who, alone or with any other corporation, com- pany, person, or party, shall wilfully do, any matter or thing prohibited by the said Act, etc., etc., as enumerated in said section. This criminal remedy would be invoked in the District Court by indictment, precisely the same as it would be for the infraction of any other offence against the United States. Civil Remedies for Party Injured, The Act provides two distinct forms of remedy for any party injured by the failure of a common carrier to comply with the terms of the Act. First : The person or persons injured may bring suit in his or their own behalf for the re- covery of damages in any District or Circuit Court of the United States of competent juris- diction. (Sees. 8 and 9.) The Inter- State Commerce Act, 65 Second : Or, such person or persons may make complaint to the Commission, following the forms and practice enumerated in Sec. 13, £t seq. (Sec. 9.) But such person shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided he or they will adopt. (Sec. 9.) Keviedies of Co77iplainants whether Da7naged or 7iot, There are three classes of complainants who may institute proceedings against common carriers without alleging any injury or damage. First, Any person, firm, corporation, or as- sociation, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization, complaining of any thing done or omitted to be done by any common car- rier, subject to the provisions of this Act in contravention of the provisions thereof, may apply to said Commission by petition, etc. (Sec. 13.) Second. Said Commission shall, in like man- ner, investigate any covci'^X^AViX, foi^cvardcd by the Railroad Commissioner, or Railroad Commis- 66 The Inter- State Comrfierce Act. sion of any State or territory, at the request of such Commissioner or Commission. (Sec. 13.) Third. And said Commission may insti- tute any inquiry 07i its own -motioji in the same manner and to the same effect as though complai^it had bee7i made. (Sec. 13.) No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. (Sec. 13.) CHAPTER VII. THE INTER-STATE COMMERCE COMMISSION. WE now come to consider the most im- portant portion of the Inter-State Commerce Act, which relates to the creation of the Commission, and its general functions and powers, as contained between the eleventh and the twenty-fourth sections of the Act in- clusive. Title of Commission. The Commission is to be known as the ** Inter-State Commerce Commission." (Sec. II.) JVumber of Co77zmissioners and Manricr of Appointment, It shall be composed of five Commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. (Sec. IT.) 67 68 The Inter- State Coirimerce Act. Term of Office. The Commissioners first appointed under this Act shall continue in office for the term of two, three, four, five, and six years, respect- ively, from the first day of January, 1887, the term of each to be designated by the Presi- dent ; but their successors shall be appointed for terms of six years, except that any per- son chosen to fill a vacancy, shall be appointed only for the unexpired term of the Com- missioner whom he shall succeed, (Sec. 11.) Removal, Any Commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. (Sec. 11.) Folitical Complexion and Qualification of Com- missioners, Not more than three of the Commissioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any common carrier sub- ject to the provisions of this Act, or owning stock or bonds thereof, or who is in any man- ner pecuniarily interested therein, shall enter upon the duties of or hold such office. Said TJie Inter- State Commerce Act. 69 Commissioners shall not engage in any other business, vocation, or employment. No va- cancy in the Commission shall impair the right of the remaininof Commissioners to exercise all the powers of the Commission. (Sec. 11.) Powers of Commission. The Commission hereby created shall have authority : First : To enquire into tJie i7ianagement of the business of all common carriers subject to the provisions of this Act. (Sec. 12.) Second : Shall keep itself informed as to the manner and method in which the same is conducted. (Sec. 12.) Third : Shall have the rigJit to obtain from such common carriers fidl and coinplete informa- tion necessary to enable the Commission to perform the duties and carry out the objects for which it was created. (Sec. 12.) Fourth : And for the purposes of the Act the Commission shall have power to rcqiiirc the atteridance and testimony of witnesses and the production of all books, papers, tariffs, contracts^ agreements, and docume^ds relating to any mat- ter under investigation. (Sec. 12.) Fifth : And to that end, may iiivoke the aid 70 The Liter- State Commerce Act. of any court of the United States, in requiring* the attendance and testimony of witnesses and the production of books, papers, and docuTnents under the provisions of this section. (Sec. 12.) And any of the Circuit Courts of the United States within the jurisdiction of which such en- quiry is carried on may, in case of contumacy or refusal to obey a subpcena issued to any common carrier subject to the provisions of this Act, or other person, issue an order re- quiring such common carrier or other person to appear before said Commission (and produce books and papers if so ordered) and give evi- dence touching the matter in question ; and any failure to obey such order of the court may be punished by such court as a contempt thereof. The claim that any such testimony or evidence may tend to criminate the person giv- ing such evidence shall not excuse such witness from testifying ; but such evidence or testi- mony shall not be used against such person on the trial of any criminal proceeding. (Sec. 12.) Sixth : By the last paragraph of Section 19 it is provided : *' It (the Commission) may, by one or more of the Commissioners, prosecute any enquiry necessary to its duties, in any part of the The Inter- State Co7itmerce Act. yi United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of this Act. Seventh : By the 20th section of the Act the Commission is authorized : (a) To require annual reports from all com- mon carriers subject to the provisions of this Act. (^) To fix the time and prescribe the man- ner in which such reports shall be made. (c) To require from such carriers specific answers to all questions upon which the Com- mission may need inforinatio7i. (d) Such annual reports shall show in de- tail : (i) The amount of the capital stock issued. (2) The amounts paid therefor. (3) The manner of payment for the same. (4) The dividends paid. (5) The surplus fund, if any. (6) The number of stockholders. (7) The funded and floating debts, and the interest paid thereon. (8) The cost and value of the carrier's prop- erty, franchises, and equipment. (9) The number of employees and the sala- ries paid each class. 72 The Inter- State Comme^^ce Act, (lo) The amounts expended for improve- ments each year, how expanded, and the char- acter of such improvements. (ii) The earnings and receipts from each branch of business and from all sources. (12) The operating and other expenses. (13) The balances of profit and loss. (14) And a complete exhibit of the financial operations of the carrier each year, including an annual balance-sheet. (15) Such reports shall also contain such information in relation to rates or regfula- tions concerning fares or freights, or agree- ments, arrangements, or contracts with other common carriers, as the Commission may require. {c) The said Commission may, within its discretion, for the purpose of enabling it the better to carry out the purposes of this Act,, prescribe (if in the opinion of the Commission it is practicable to prescribe such uniformity and methods of keeping accounts) a period of time within which all common carriers subject to the provisions of this Act shall have, as near as may be, a uniform system of accounts, and the manner in which such accounts shall be kept. (Sec. 20.) The Inter- State Com77ierce Act. jt^ Rules of, a?td Practice before, Commission. First : That the Commission may conduct its proceedings in such manner as will best con- duce to the proper despatcJi of business, and to the ends of justice. (Sec. 17.) Second : A majority of the Commission shall constitute a quorum for the transaction of business, but no Commissioner shall participate in any hearing or proceeding in which he has any pecuniary interest. (Sec. i 7.) Third : Said Commission may, from time to time, make or amend such ge7ieral rules or or- ders as may be requisite for the order and regu- lation of proceedings before it, including y^r^z/i* of notices and the service thereof, which shall conform, as nearly as may be, to those in use in the courts of the United States. (Sec. 17.) Fourth : Any party may appear before said Commission and be heard, in person or by at- torney. (Sec. 1 7.) Fifth : Every vote and official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of either party interested. (Sec. 17.) Sixth : Said Commission shall have an offi- cial seal, which shall be judicially noticed. (Sec. I 7.) 74 The Inter-Slate Commerce Act. Seventh : Either of the vtembers of the Commission may administer oaths and affirm^a- tions. (Sec. i 7.) MetJiod of Procedure befoi^e Commissio7t, The method of procedure before the Com- mission is laid down in the 13th and subsequent sections of the Act, with great detail, and we proceed to unfold each distinct step in the prog- ress of an investigation before that body, from the presentation of the petition to the final judgment of the Circuit Court — ^where that be- comes necessary. Who May Make Complaint. First : Any person, firm, corporation, or as- sociation, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization complaining of any thing done or omitted to be done by any corn- mon carrier subject to the provisions of this Act in contravention of the provisions thereof. (Sec. 13). Second : Said Commission shall in like man- ner investigate any complaint forwarded by the Railroad Commissioner or Railroad Commis- sion of any State or territory, at the request of .such Commissioner or Commission. (Sec. 13.) The I7ite7'-State Co7n7nerce Act. 75 Third : Said Commission may institute any enquiry on its own motion in the same manner and to the same effect as though complaint had been made. (Sec. 13.) Proceedings — How Begun. The appHcation to the Commission is made by petition of the complainant. (Sec. 13.) Contents of Petition. The petition shall briefly state the facts, and be delivered to the Commission. (Sec. 13.) Answer of Carrier. A statement of the charges thus made shall be forwarded by the Commission to such carrier. There is no time designated in the Act within which this must be done, but the use of the word ''whereupon" indicates that it shall be delivered to the common carrier immediately. (Sec. 13.) After the petition shall have been forwarded by the Commission to the carrier, such carrier shall be called upon ''to satisfy the complaint or answer the same in writing within a reasonable time, to be specified by the Commission." (Sec. 13.) 76 The Inter-State Commerce Act. Reparation or Satisfaction by Carrier. If such common carrier, within the time speci- fied, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of (Sec. 13.) Trial or Investigation^ by Comm^ission. If such a carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said, complaint y it shall be the duty of the Commis- sion to investigate the matters complained of in SUCH MANNER AND BY SUCH MEANS AS IT SHALL. DEEM PROPER. (Sec. 1 3.) When Commissioners Shall Not Dismiss Com- plaint, No complaint shall at any tiTne be dismissed because of the absence of direct damage to the complainant, (Sec. 13.) Form of Report of Commission. That whenever an investigation shall be made by said Commission, it shall be its duty to make The Inter-State Commerce Act. yy a report in writing in respect thereto, which shall include : (Sec. 14.) (a) Findings of fact upon which the conclu- sions of the Commission are based. (Sec. 14.) (J)) Together with its recommendation as to what reparation, if any, should be made by the common carrier, to any party or parties who may be found to have been injured ; (Sec. 14.) (^) And stick findings so made shall thereafter, in all judicial proceedings, be deemed prima facie evidejice as to each and every fact foiaid. (Sec 14.) Recordi7tg Reports of Investigation. All reports of investigations made by the Commission shall be entered of record, and a copy thereof shall be furnished to the party who may have complained, and to any common car- rier that may have been complained of. (Sec. 14.) Decision of Cominission a?id Proceedings There - under. That if in any case in which an investigation shall be made by said Commission it shall be made to appear to the satisfaction of the Com- mission, either by the testimony of witnesses or other evidence, (i) tJiat any tJiijig Jias been done or 78 The Inter-State Comme^^ce Act, omitted to be done in violatio7t of the provisions of this Act, or of any law cognizable by said Commis- sion, by any common carrier, or (2) that any injury or damage has been sustained by the party or parties complaining, or (3) by other parties aggrieved in consequence of any such violation, it shall be the duty of the Commission : (a) To forthwith cause a copy of its report in respect thereto to be delivered to such com- mon carrier. (Sec. 15.) (f) Together with a notice to said common carrier to cease and desist from such violation, or to make reparatio7t for the injury so found to have been done, or both, within a reasonable time, to be specified by the Commission. (Sec. 15.) (c) And if, within the time specified, it shall be made to appear to the Commission that such common carrier has ceased fro7n such violation of law, and has made reparatio7z for the injury found to have been done, in compliance with the report and notice of the Commission, or to the satisfaction of the party complaining, a statement to that effect shall be entered of record by the Commission, and the said com- mon carrier shall thereupon be relieved from further liability or penalty for such particular violation of law. (Sec. 15.) The Inter-Statc Commerce Act. 79 Faihcre of Coni77t07i Carrier to Obey yudgnient of Comm.issio7i, First : That whenever any common carrier, as defined in and subject to the provisions of this Act, shall violate or refuse or neglect to obey any lawful 07^der or requirement of the Com- mission in this Act named, it shall be the duty of the Commission, and lawful for any company or perso7i interested in such order or require- ment, to apply, in a summary way, \^y petition, to the Circuit Court of the United States sit- ting in equity in the judicial district in which the common carrier complained of has its pri^i- cipal office, or in which the violation or disobedi- ence of such order or requireme7it shall happe7i, alleging such violation or disobedience, as the case may be. (Sec. 16.) Second : The said court shall have power to hear a7id determine the matter : [a) On such short notice to the common car- rier complained of as the court shall deem reasonable ; (f)) And such notice may be served on such common carrier, his or its officers, agents, or servants, in such manner as the court shall direct. (Sec. 16.) {c) Said court shall proceed to hear and dc- 8o The hiter-State Com77terce Act. termine the matter speedily as a court of equity, and without the formal pleadings and p7'oceedings applicable to ordinary sitits in equity, but in such manner as to do justice in the premises ; and to this end such court shall have power, if it think fit : (^) To direct and prosecute, in such mode and by such persons as it may appoint, all such enquiries as the court may think needful to enable it to form a just judgment in the matter of such petition ; and (e) On such hearing, the report of said Com- mission shall be prima facie evidence of the matters therein stated. (Sec. i6.) (/) And if it be made to appear to such court, on such hearing or on report of any such person or persons, that the lawful order or requirement of said Commission drawn in question has been violated or disobeyed, it shall be lawful for such court to issue a writ of injunction or other p7^oper process, mandatory or otherwise, to restrain such common carrier from further continuing such violation or disobedi- ence of such order or requirement of said Com- mission, and enjoining obedience to the same. (Sec. 1 6.) (^g ) And in case of any disobedience of any The Inter-State Commerce Act. 8i such writ of injunction or other proper process, mandatory or otherwise, it shall be lawful for such court to issue writs of attachment, or any other process of said court incident or applica- ble to writs of injunction or other proper pro- cess, mandatory or otherwise, against such common carrier, and, if a corporation, against one or more of the directors, officers, or agents of the same, or against any owner, lessee, trus- tee, receiver, or other person failing to obey such writ of injunction or other proper process, mandatory or otherwise. (Sec. i6.) (//) And said court may, if it shall think fit, make an order directing such common carrier or other person so disobeying such writ of in- junction or other proper process, mandatory or otherwise, to pay such sum of money not ex- ceeding for each carrier or person in default the sum of five hundred dollars for every day after a day to be named in the order that such carrier or other person shall fail to obey such injunction or other proper process, man- datory or otherwise ; and such moneys shall be payable as the court shall direct, either to the party complaining, or into court to abide the ultimate decision of the court, or into the treasury ; and payment thereof may, without 7B1 82 The hiter-State CoTninerce Act. prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of execution, in Hke man- ner as if the same had been recovered by a final degree in personam in such court. (Sec. 1 6.) Appeal. When the subject in dispute shall be of the value of two thousand dollars or more, either party to such proceeding before said court may appeal to the Supreme Court of the United States, under the same regulations now pro- vided by law in respect of security for such ap- peal ; but such appeal shall not operate to stay or supersede the order of the court or the exe- cution of any writ or process thereon ; and such court may, in every such matter, order the pay- ment of such costs and counsel fees as shall be deemed reasonable. (Sec. i6.) Petition to Circuit Cotcrt — by Whom Presented. First : Whenever any such petition shall be filed or presented by the Commission, it shall be the duty of the District Attorney^ under the directio7i of the Attor7iey- General of the United States, to /r^sf^r^//^ the same. (Sec. i6.) Second : And the costs and expenses of such The Intei'-State Com^nerce Act, 83 prosecution shall be paid out of the appropria- tion for the expenses of the courts of the United States. (Sec. 16.) Third : For the purposes of this Act, ex- cepting its penal provisions, the Circuit Courts of the United States shall be deemed to be always in session. (Sec. 16.) Comments np07i the Sections Creating Inter - State Comm,erce Commission. An analysis of the sections, which we have given in this chapter, relating to the creation and powers of the Inter-State Commerce Com- mission, shows that Congress has attempted, under its general right to '' regulate com- merce," to form this Commission into a tribu- nal that is unique and extraordinary both in law and business. A study of the powers of this Commission shows that Congress has clothed it with more important and extensive judicial attributes than have ever been con- ferred upon any tribunal created under the laws of the Federal Government. The Commission becomes, under the Act, not only a suitor or party, but it is a judge in its own causes. It not only possesses all the powers of a petit 84 The I}itcr-State Coin77ierce Act. jury, but it has conferred upon it all the inquisa- torial attributes of a grand jury. First : The Commission has not only the power to investigate charges against railroads or common carriers made by any person, firm, corporation, or association, or body politic, or municipal organization, whether such person, firm, corporation, association, or manufacturing society, or body politic, or municipal organiza- tion has any Z7ttercst in the subject or not ; but it may investigate any complaint forwarded by a Railroad Commissioner or Railroad Commis- sion of any State or territory. The fundamental principle upon which courts act is, that no person can invoke their aid or use their processes unless he has some personal interest in the subject-matter involved. That principle is entirely set aside by this law, and the Commission is authorized to begin investi- gations at the instance of anybody who chooses to inaugurate them ; and it is, moreover, en- joined to dismiss no complaint '' because of the absence of direct damage to the complainant." But more than this, the Commission has the power to set its own machinery in motion ex mero motu, and it is given the authority to in- stitute any enquiry on its own motion, in the The Inte7^-Statc Commerce Act. 85 same manner, and to the same effect as though complaint had been made. (Sec. 13.) Second : The powers conferred upon the Commission, in respect to the method of inves- tigating charges, are also extraordinary and singular. If it shall appear to the Commission, that there is reasonable ground for investigation In any case, the Commission, under the 13th sec- tion of the Act, is not only authorized, but it is its duty to investigate '' the matters complained of in such manner a?id by such means as it shall deem proper!' Coupling this unlimited authority, with the power which is contained In the subsequent sec- tions of the Act, allowing the Commission to enquire into the management and business of all common carriers ; to obtain from such com- mon carrier full and complete general informa- tion necessary to enable the Commission to perform the duties and carry out the business for which it was created, and to compel the at- tendance of witnesses and the production of books and papers before it without stint ; the power of one or more Commissioners to prose- cute any enquiry necessary to its duties In any part of the United States into any matter or 86 The hiter-State Com^nerce Act. question of fact pertaining to the business of any common carrier subject to the provisions of the Act, together with its right to compel the companies to make annual reports ; — considering all these things together, — it is impossible to conceive of any branch or element of the busi- ness of common carriers, that this Commission may not enquire into, interfere with, and super- vise. The Commission is practically clothed with the powers of conducting and controlling the business of all the inter-State common car- riers in the United States, and any statement short of this fails to convey an adequate idea of the authority which this extraordinary tribunal possesses. Third : It is true that the Commission is not authorized by the Act to enforce its deci- sions, judgments, or decrees, but it has ample power, for that purpose, to invoke the aid of any Circuit Court of the United States sittii^g in equity in the judicial district in which the common carrier complained of has its principal office, or in which the violation or disobedience of such order or requirement shall happen, and the Circuit Court is empowered to hear and de- termine the matter on such notice to the com- mon carrier complained of as the court shall TJic Intcr-State Coninie7^ce Act. '^'j deem reasonable, and such notice may be served upon the common carrier, his or its officers, agent, or servants in such manner as the court shall direct. (Sec. i6.) If this legislation is valid, it creates a remark- able enlargement of the powers of the Circitit Court of the United States, because, under the 629th section of the Revised Statutes, which is not repealed by the Inter-State Commerce Act, it is provided that *'no civil suit shall be brought before either of said courts, against any person, by any original process or proceed- ing in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or com- mencing such proceeding." But if this Act is constitutional, power is conferred upon any Circuit Court to entertain a suit, of an original character, in equity, although the defendants are neither inhabitants of, nor found within the limits of the jurisdiction of said Circuit Court : and a Circuit Court, sitting in a district for New York, is empowered to bring within its jurisdiction a common carrier or person resid- ing in Florida, or Dakota, or California, by having a notice served on such carrier person- ally, or by mail or otherwise, as the court may 88 The I liter-State Co7ninerce Act, direct. (Sec. i6.) Moreover, by the same section of the Revised Statutes of the United States, the jurisdiction of the Circuit Court is. limited to cases where the matter in dispute exceeds the sum of five hundred dollars. •When we come to examine the method of proceeding in the Circuit Court, as provided for by Section i6, of this Act, it will be found still more anomalous, because the Circuit Court is directed to proceed to hear and determine the matter speedily as a court of equity, and without formal pleadings and proceedings ap- plicable to ordinary suits in equity, but in such manner as to do justice in the premises. (Sec. 1 6.) No provision is made for the defendant to answer the petition, but that right may be inferred, perhaps, from the general language of the section. The Circuit Court is also given the power '' if it think fit, to direct and prosecute in such mode, and by such persons as it may appoint,, all such enquiries as the court may think need- ful to enable it to form a just judgment in the matter of such petition. ' (Sec. i6.) Exactly what this language means is difiicult to infer, and it is still more difficult to infer The Inter-State ConiTnerce Act, 89 what the powers would be of the persons ap- pointed by the Circuit Court. There is, however, a studious neglect in the law to set forth the steps or defences which the common carriers may interpose to the petition and judgment prayed for ; but, on the other hand, it is declared that in all judicial proceed- ing's in the Circuit Court the findinofs of facts are to ''be d^^vn^d prima facte evidence as to each and every fact found" by the Commission (Sec. 14), and on a hearing in the Circuit Court, provided for under Section 16, '' the re- port of said commission shall be prima facie evidence of the matters therein stated." The Act is also deficient in not providing for the power of adjournments, and the right to ex- amine absent witnesses, or witnesses de beiie esse ; but, without undertaking to specifically enumerate them, it is sufficient for the purposes of this work to state that many of the attributes of ordinary common-law actions, and suits in equity, are left to inference ; and if they are exercised by the Commissioners at all, must be regarded as conferred upon them by the general language of the Act. There is no limit to the time within which proceedings may be begun against the common 90 The Intcr-State CoTumerce Act, carriers under this Act, and a complaint may be instituted whenever the Commission, or any person, or firm, or corporation, or body poHtic sees fit to formulate it, no matter what period of time may have intervened between the alleged infraction and the commencement of the proceedings. Finally, it is difficult to decide whether the Circuit Court acts in the premises as a court of appeal, or whether the proceedings in that tribunal are to be regarded as begun de novOy and of an oriorinal character. If the proceedings in the Circuit Court are regarded as of an appellate character, then the Act makes no provision whatever for an appeal on the part of the common carrier from the de- crees, or judgments, or orders of the Commis- sion, and the only method open to the common carrier of bringing the matter before the Cir- cuit Court is to resist the acts of the Com- mission, to place itself in contempt, and thus force the Commission to invoke the aid of the Circuit Court. But suppose the Circuit Court does not agree with the conclusions, or judgments, or orders of the Commission, it has apparently no power to modify or alter such decree or order, and no power to formulate The Inter-State Commerce Act. 91 a new judgment or decree — if the facts war- rant it. These, and many other practical difficulties, stand in the way of an enforcement of the law through the aid of the Circuit Court. Fourth: It only remains to suggest the vari- ous constitutional propositions which arise from a consideration of the language and results and consequences of the Inter-State Commerce Act. (a) The first and main question is : Has Congress the right to pass this law ? Do the fixing of the rates, fares, and charges which common carriers may receive for the trans- portation of passengers or property, and the appointment of this Commission, with the powers conferred upon it, as contained in the Act, constitute a regulation of commerce ? Does regulation mean control of commerce? Does it mean the absolute and unlimited power on the part of Congress to do any act with or concerning the commerce of the country that to it seems proper? Is there no limit placed upon the power of Congress in this respect ? Is Congress the sole judge as to what facts constitute a regulation of commerce? Has Congress power to regulate any private com- mercial business conducted between two or 92 The Tnter-State Commerce Act, more States, in the manner in which it has attempted to legislate about common carriers ? And does the fact that such carriers are quasi public officials create any distinction as against such carriers ? If it can be demonstrated to the Federal courts that the effect of the legislation in ques- tion is hurtful to the people of the country ; that it is aimed at the subversion or destruction of commerce, can the Act be declared unconsti- tutional ? These are the interesting questions which surround this branch of the subject, and must be answered in order to sustain this piece of legislation. On the other hand, we have the utterances of the Supreme Court of the United States in the Wabash Railway Company case, and in the decisions there alluded to by Mr. Justice Miller, in which it is generally stated and held that Congress possesses the power to legislate upon the subject of inter-State com- merce. There is nothing, however, in that opinion which upholds the right of Congress to delegate its power to a Commission, and this, as we have said in the beginning of this treatise, is an entirely new question for the courts to determine. (ii8 U. S., 557.) The l7itc7^-State Cof)i77ierce Act. 93 {6) Assuming, however, that Congress may itself exercise powers similar to those created by the Inter-State Commerce Act, another grave question is, whether that body can delegate its powers to a tribunal such as is created by this Act. Has Cono^ress the ri^ht to divest itself of the power which the Constitution has placed in its hands, and to entrust the regulation of commerce to a Commission ? It will be seen that Congress, by this Act, does not undertake specifically to fix the rates or charges of com- mon carriers, or to regulate the method or system by which they shall conduct their busi- ness. All of these things are practically left in the hands of the Commission, and it lies with that body, exclusively, to say what shall and what shall not constitute an infraction of the law. Specific rules for the government of the business and conduct of carriers are not laid down by the Act, but it lies with the Commis- sion to declare what the law shall be in any given case. The power of the Commission is arbitrary, unlimited, and unchecked ; and while it cannot be assumed that it will be used detri- mentally to the interests of the public, or of the common carriers, it is doubtful whether the 94 T^f^^ Inter-State Co77zmerce Act, people of the United States, In adopting the Constitution, ever intended that such an un- bounded supervision over the commercial inter- ests of the country should ever be placed in the hands of a tribunal such as the Inter-State Commerce Commission. An application of these suggestions to the various provisions of this Act, will be sufficient to show that Congress has practically dele- gated its whole power in the premises to the Commission. While Congress has the right, under the Constitution of the United States, to '' consti- tute tribunals inferior to the Supreme Court," the jurisdiction of those tribunals must be con- fined to such subjects and matters of jurisdic- tion as are specified in the Constitution. The people of the United States have defined the judicial power of the government, and under Section 2 of Article III. of the Constitu- tion it is declared that : ^' I. The judicial power shall extend to all cases in law and equity, arising under this Con- stitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassa- dors, or other public ministers and consuls ; to The Inter-State ConiTnerce Act. 95 all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; between citizens of the same State, claiming lands under grants of different States ; and between a State, or the citizens thereof, and foreign states, citizens, or subjects. '* 2. In all cases affecting ambassadors, or other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make." These suggestions are thrown out upon a possible contention that the Inter-State Com- merce Commission is a judicial body, and within the authority of Congress to create under its power to establish inferior courts. (f) The next proposition is whether some of the provisions of the Inter-State Commerce Act do not conflict with the Seventh Amend- ment to the Constitution of the United States, which provides that : " In suits at common law, 96 The hiter-State Commerce Act. where the value in controversy shall exceed twenty dollars, the right of trial by jttry shall be preserved, and no fact tried by a jitry shall be othei'wise re-examined in any court of the United States, than according to the rules of the commo7i law!' It Is undoubtedly true that many of the con- troversies 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 investiga- tion by a petit jury. For Instance, actions against a common carrier for violation of con- tract, or for breach of duty. In the trans- portation of passengers or property, were, be- fore the Inter-State Commerce Act, the sub- jects of common-law actions, In which juries were regularly empanelled. All of these matters are now cognizable by the Commis- sion, 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 ag- grieved or not. (Sec. 13) The Inter-State Commerce Act. 97 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 Constitu- tion, seems to be utterly destroyed and set at naught, by vesting jurisdiction in the Com- mission. id) 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 sus- tained, ''together with a reasonable counsel or attorney s fee, to be fixed by the coicrt 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 con- troversy may be. And there is no limit what- ever 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 success- ful. No matter how groundless the complaint ; no matter how utterly devoid of merit the 98 The Inter-State Commerce Act, action or suit may be, the common carrier is awarded no costs of any kind. Whether this inequaHty infringes the Con- stitutional prerogatives of the common carriers is another of the questions which the courts must decide. {e) The next question that will arise in con- siderinof the effect of the Inter-State Commerce Act is, whether it does not conflict with para- graph 5 of Section 9 of Article I. of the Consti- tution of the United States, which provides that : " No preference shall be given by any regula- tion of commerce or revenue to the ports of one State over those of another." While the Act in question does not, in express term^Sy give any preference to the ports of one State over those of another, it would be suffi- cient, 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 pro- hibited 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- The Intcr-State Coirmicrcc Act. 99 tion of the Constitution which may cover such an argument if it should be made. (/) Finally, the question will arise whether the effect and consequence of the Inter-State Commerce Act is to violate the Fifth Amend- ment to the Constitution, which provides, hiter alia, that no person shall '* be deprived of life,, liberty, or property, without due process of law, nor sYidiW private property be taken for public iise withoitt jtcst compensation!' "^ Without venturing into a detailed discus- sion upon these subjects, we have endeav- ored to impartially present the salient points which arise from a consideration of this im- portant Act. It is the first attempt on the part of Congress to concentrate into the hands of a Commission powers that are at once judi- cial, commercial, and inquisitorial, and the de- cision 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, 2S. CHAPTER VIII. SALARY OF COMMISSIONERS, PRINCIPAL OFFICE AND REPORTS OF COMMISSION, AND MISCEL- LANEOUS PROVISIONS. Salary of Commissioners. EACH Commissioner shall receive an an- nual 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.) Other Employees. 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 In- terior. 100 The Intei^-Statc Covnnerce Act. loi Offices of Conimissio7U The Commission shall be furnished by the Secretary of the Interior with suitable offices and all necessary office supplies. Fees of Witnesses. Witnesses summoned before the Commis- sion shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. (Sec. i8.) Expenses of Cormitzssioii. All of the expenses of the Commission, in- cluding all necessary expenses for transporta- tion incurred by the Commissioners, or by their employees under their orders, in making any investigation in any other places than in the city of Washington, shall be allowed and paid, on the presentation of itemized vouchers therefor approved by the chairman of the Commission and the Secretary of the Interior. (Sec. 18.) Principal Office of Covunissiou. The principal office of the Commission shall be in the city of Washington, where its gen- I02 The Inter-State Co77tinerce Act. eral sessions shall be held ; but whenever the convenience of the public or of the parties may be promoted, or delay or expense pre- vented thereby, the Commission may hold special sessions in any part of the United States. It may, by one or more of the Com- missioners, prosecute any enquiry necessary to its duties, in any part of the United States, into any matter or question of fact pertaining to the business of any common carrier subject to the provisions of this Act. (Sec. 19.) Reports of Commission 10 Secretary of Interior, The Commission shall, on or before the first of December in each year, make a report to the Secretary of the Interior, which shall be by him transmitted to Congress, and copies of which shall be distributed as are the other re- ports issued from the Interior Department. This report shall contain such information and data collected by the Commission as may be considered of value in the determination of questions connected with the regulation of commerce, together with such recommenda- tions as to additional legislation relating thereto as the Commission may deem neces- sary. (Sec. 21.) The Intcr-Statc Coninierce Act. 103 Appropriations. That the sum of $100,000 is hereby appro- priated for the use and purposes of this Act for the fiscal year ending June 30, 1888, and the intervening time anterior thereto. (Sec. 23-) W/iefi Act Shall Take Effect. That the provisions of Sections 1 1 and 18 of this Act, relating to the appointment and organization of the Commission herein pro- vided for, shall take effect Immediately, and the remaining provisions of this Act shall take effect sixty days after its passage. (Sec. 24.) The sixty days expire on the 5th day of April, 1887. APPENDIX. AN ACT TO REGULATE COMMERCE. Be it enacted by the Senate and House of Representa- tives of the United States of America i7i Congress asse?nbiedj That the provisions of this act shall apply to any coitimon carrier or carriers engaged in the transportatio7i of passen- gers or property wholly by railroad^ or partly by railroad and partly by water when both are used, under a co??imon control, 7nanage7ne?it, or arrangement, for a conti7iuous carriage or shipment, from one State or Territory of the United States, or the District of Columbia, to any other State or Territory of the United States, or the Dis- trict of Columbia, or from any place in the United States to an adjacent foreign country, or from any place in the United States through a foreign country to any other place in the United States, and also to the transportation in like manner of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment, or shipped from a for- eign country to any place in the United States and car- ried to such place from a port of entry either in the United States or an adjacent foreign country : Provided, however, That the provisions of this act shall not apply to the transportation of passengers or property, or to the 105 io6 The Liter-State ComTuerce Act, receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid. The ter77i " raih'oad" as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corpora- tion operating a railroad, whether owned or operated under a contract, agreement, or lease ; and the term " transportation " shall include all instrumentalities of ship- ment or carriage. All charges made for any service rendered or to be ren- dered in the transportation of passengers or property as aforesaid, or in connection therewith, or for the receiv- ing, delivering, storage, or handling of such property, shall be reasonable and just ; and every unjust and un- reasonable charge for such service is prohibited and declared to be unlawful. Sec. 2. That if any conwioji carrier subject to the pro- visions of this act shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge^ demand, collect, or receive from atiy person or persons a greater or less compensation for any sei^vice rendered, or to be rendered, in the transportation of passengers or prop- erty, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons y"