8 Conservative *
I :
TIIK cui/i.oiu mir , .
Ahlnco P. Walker wrote the fol
lowing able article in answer to the
resolution presented in congress asking
for the amendment of the interstate
commerce law on the ground that "Cer
tain court decisions have practically
made the interstate commerce law
nugatory , and relegated the interstate
commerce \ commission to a position
where it has no real.power. "
The three important sections of the
act are :
Section 1. Charges shall bo reason
able and just.
Section 2. Unjust discrimination be
tween individuals ( rebates , drawbacks ,
etc. ) prohibited.
Section 3. Undue preferences and
advantages to particular persons , locali
ties or descriptions of traffic prohibited.
"Those three sections formulate the
broad charter of a now federal juris
prudence. It will be observed that
neither charges , discriminations nor
preferences are prohibited. The inhibi
tion applies when , and only when ,
cha.ges , discriminations or preferences
are unreasonable and unjust.
'The sections above referred to as
being rules of evidence are Sec. 4 , pro
hibiting a greater charge for a shorter
than for a longer haul over the same
line when the circumstances and condi
tions are substantially similar , and Sec.
7 , forbidding devices to prevent the
carriage of freight being continuous
from the place of shipment to the place
of destination. In both of these cases ,
when the forbidden facts exist , an undue
preference is prima facie made out , sub
ject to exculpation by proof of counter
vailing conditions.
"Under the three declarator } * sections
( aside from the two special cases last
mentioned ) the burden of proof is upon
the complainant to show that the charge ,
discrimination or preference attacked is
actually unreasonable and unjust.
Every such case presents a judicial ques
tion , cognizance of which appertains to
the federal courts and not to the presi
dent , the secretary of the interior or any
other administrative official.
"The foregoing is an accurate state
ment of the scope of the interstate
commerce law , as explained by its
framers in the report of the senate cdm-
mittee which introduced the bill , and as
deduced from an inspection of the lan
guage of the statute. Is it now nuga
tory ? Let us examine its declaratory
features in detail , with reference to the
charge that 'the law as it stands is
inoperative. "
"Section 1 certainly is not inoperative
or nugatory. Charges made by common
carriers upon interstate commerce are
not often unreasonable or unjust. Such
complaints are very rarely made except
by comparing one rate with another ,
which removes the ground of complaint
from the first section to the third. Look
ing at railway rates each by itself , under
the general requirement of Section 1 , it
requires a daring spirit to allege them to
be unreasonable , as a whole or in detail.
Unreasonably low they often are ; un
reasonably high they are not. Possibly
a rare case exists hero and there as to
which some reduction may be thought
to be appropriate , but the cases are too
few to warrant consuming time in
formulating new remedies. A speaker
at the last public hearing of the com
mittee attempted to specify three such
cases ( p. 881) ) , but all of them wore
relative ; . that is , the complaint in each
was something more than a violation of
Section 1. The phenomenally low trans
portation charge of American railways
are the world's wonder. "
"Railroad companies , like other citi
zens , do not litigate for fun , nor do they
seek occasion to trifle with the courts.
Section 1 of the law , requiring rates to
bo reasonable , is not nugatory : first ,
because rates in fact are almost univer
sally reasonable , and second , because it
could easily be enforced if any occasion
should arise.
"Section 2 is the one chiefly talked
about when the law is called nugatory.
But even here a little discrimination in
the use of epithets would be wise.
Before the law was passed special rates
were the rule. Now they are the excep
tion. Look into the evidence given to
the senate committee in 1885 and 1886
and see what a debauch of universal
private deals composed the then effec
tive railway tariffs. On many roads
almost the only tariffs were figures
found in the private memoranda of the
freight agents who arranged separate
contracts with each shipper.
"To correct this state of affairs the
law did four things : first , it forbade it
( Seo. 2) ) , which was useful , for railroad
officials , like other men , do not like to
be law-breakers ; second , it prescribed
publicity of tariffs ( Seo. 6) ) , which estab
lished a standard basis of rates known
to all shippers , and which section has
been at all times scrupulously observed
by the roads ; third , it provided penal
ties for violations ( Sec. 10) ) , a section
which has not worked very well because
the corporations themselves could not
be prosecuted , and which undoubtedly
should be amended in this and other
respects ; fourth , it opened the door for
an injunction to restrain carriers from
charging more to one shipper than to
another , a remedy which no one has
over attempted to employ , although it
was afterwards strengthened by .an
amendment conferring jurisdiction upon
the courts to issue a writ of peremptory
mandamus commanding the carrier to
carry traffic for one shipper on the same
terms as for any other.
"Those four provisions of the law
have done a great deal in the direction
of suppressing ntijusfc discrimination
between shippers. The situation in this
respect is infinitely better than it was
before the passage of the law. There
are vast sections of the country where
discriminations of this character are
never heard of. No complaints of secret
rate-cutting are now heard in the south
ern states ; few such cases arise in New
England , in the middle states or west of
the Missouri river. There are many
important classes of traffic which move
regularly at tariff rates in every part of
the land. It is not true to say that Sec
tion 2 of the law is nugatory.
"But it must be admitted that in other
sections of the country and as applied
to other classes of traffic , rebates , draw
backs , and other devices for favoring
special shippers are still extant. Out
breaks of rate-cutting more or lass
spasmodic not infrequently occur.
These affairs seem to be temporary in
their nature : the complaints cease aft r
a time. The accounts of them given in
the newspapers are usually grossly
exaggerated. But the actual facts are
bad enough , and the conditions thus
from time to time created are wrong in
every way. There are certain parts of
the country where these outbreaks seem
to be recurrent , and certain kinds of
business , such as grain and packing
house products , are peculiarly suscep
tible thereto. Probably more than nine-
tenths of the railroad freight traffic of
the country is free from rate-cutting ,
and something should be done to stop it
altogether.
"The proposals to this end in the
pending bill are two only : first , the
amendment of the penalty section (10) ( ) ,
which is in the right direction ; second ,
the appointment of special agents to
examine railroad books ( query , why not
shippers' books also ) , which might help
the detective work of the commission a
little , but is of doubtful expediency. At
the last session of the committee ( page
889) ) a new theory was broached , the
speaker for the first time claiming that
the power to name maximum rates
would be efficacious in the stopping of
rebates. 'Now , if that railway should
be compelled , when it grants a special
rate to Mr. A , to give that same rate to
everybody else and to apply that rate to
all its intermediate territory , the con
sequence of granting the rebate would
be such that it would not be longer for
its interest to allow it. ' ( Very well ; the
power to do this by injunction and
mandamus has been specially conferred
as above shown , but never attempted to
be exercised ; the speaker continues : )
'You cannot compel a railway to adhere
to its published rates , but you can com
pel it to reduce its published rates to a
point whore a secret rate is no longer an
object. That is the only thing which
has ever stopped the payment of re
bates' ( a wild and untrue assertion ) ,
and it is in my judgment the only thing
which ever will effectually stop it. '
This statement lets the cat out of the
