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THE FEDERAL COURTS AND THE ORDERS

OF THE INTERSTATE COMMERCE COM.
MISSION.

By H. T. NEWCOMB.

The annual report of the Interstate Commerce Commission submitted to Congress in December, 1904, shows that at that time there had been received by the Commission 789 formal and 3,223 informal complaints. On October 9, 1904, the Commission had rendered 297 formal decisions, but as two or more cases were often considered and decided together, the total number of cases decided amounted to 359. Of the cases decided, 194 were decided in favor of the complainants; that is, there were 194 cases in which, if the action recommended by the Commission had been taken by the defendants, some benefit would have accrued to those who prompted the complaints. A report submitted to the United States Senate, by the Commission, on December 21, 1896 (Senate Document No. 30, Fiftyfourth Congress, Second Session), shows the action taken by the defendants in 107 instances in which the decision of the Commission was more or less favorable to the complainants. From this report it appears that in 58 of the 107 cases included, there was complete, voluntary obedience to the Commission's order. In 11 more there was voluntary, partial obedience, while in another case the Commission reports that“ some changes” were made. It is to be observed, concerning these twelve cases, that the degree of obedience was at least sufficient to prevent further action on the part of the Commission or the complainants. It appears, therefore, that in 107 cases there were only 37 in which the defendants declined substantially to comply with the Commission's recommendations.

The informal complaints considered by the Commission are settled without formal reports or orders. As the Commission has decided but 359 out of 789 formal complaints and as it has never been charged that its docket is clogged by an excessive number of undecided cases, the inference is warranted that more than half of the cases formally submitted are settled while pending. It follows that 90 per cent of the matters submitted to the Commission are settled satisfactorily to both parties without formal orders. Of the 10 per cent not settled in that way

it

appears that, up to the present time, in almost one-half the defendants have been justified in their refusal to make the desired changes in rates or methods by the final conclusions of the Commission. As already noted, in only 194 out of more than 4,000 cases submitted, has the Commission seen fit to order changes in rates or in methods or practices which affect or control rates. But when the Commission has issued formal orders requiring affirmative action on the part of the railways, they have usually been obeyed. The best available record, quoted above, shows that they have been obeyed in nearly 70 per cent of the cases.

FEW CASES HAVE GONE TO THE COURTS.

When obedience to an order of the Commission is refused, that body, or any one interested, has the right to appeal to a Circuit Court of the United States, sitting in equity, for a decree requiring obedience. Up to the present date (April 10, 1905), 45 cases of this sort have gone to the courts. Eleven of these cases have either been withdrawn, or have not been actively prosecuted, or there has not yet been time for judicial action. Sixteen of them have been carried to the Supreme Court of the United States, and in no case has that body decided in favor of the enforcement of the Commission's order; in one case, only, its decree required the enforcement of a portion of the order. Of the remaining 28 cases the Commission has lost 26. Appeals are now pending from three of these cases in which the decision was adverse to the Commission, and from one in which it was adverse to the railway defendant.

Had the Interstate Commerce law from the beginning been in the form which the Commission now desires shall be substituted for the present statute, the only cases, out of the more than 4,000 which have been submitted to the Commission, that would have been affected, are the 45 which have gone to the courts, or less than 1 1-5 per cent of the total number. As has already been shown only 34 of these cases have been adjudicated, but the decisions of the courts show that in a large portion of the adjudicated cases such a difference in the law would not have affected the result. In other words, it is not true, as is so frequently asserted by those who desire radical legislation, that the frequent disapproval of the conclusions of the Commission by the Federal courts, has been wholly due to the fact that the Commission's interpretation of the law has not had the sanction of the courts.

While it is perfectly true that, in the natural desire to enlarge the scope of its authority, the Commission has often reached conclusions of law which the courts have declared to be erroneous, it is equally true that its determinations of facts and the conclusions which it has drawn from them, have frequently received judicial condemnation. A study of the decisions of the courts, with a view to determining whether, on the whole, the results of the litigation in the several cases have been such as tend toward the establishment and perpetuation of just relations between shippers and carriers, affords a complete refutation to the argument so often advanced that the Commission has been right, that the law is wrong, and that, therefore, the law ought to be modified.

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