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On February 25, 1887, Mr. Albert Fink wrote the following letter to Gen. E. P. Alexander, in reply to his remarks upon Mr. Fink's interpretation of section 4:

NEW YORK, Feb. 25, 1887: GEN. E. P. ALEXANDER,

President Central R. R. & Banking Co. of Georgia, Savannah, Ga.

MY DEAR SIR: I have your favor of 23d inst., and also your remarks upon my interpretation of section 4 of the Interstate Commerce law.

I am afraid you have not fully understood me. I do not say any. where that section 4 amounts to nothing, but simply that it amounts to no more than sections 1 and 3, which provide that rates shall be reasonable and just, and that no unjust discrimination shall be made against localities; and that by the insertion of the clause, “under substantially similar circumstances and conditions” in section 4, it permits a greater charge being made for a short haul than for a long haul, where it is just and reasonable.

I read the section according to its language and not according to the interpretation given by Mr. Reagan and others, and it seems to me that you contradict yourself when you say, in the first place, that you propose to construe the section by its language, and then construe it by what some of the supporters of the bill intended should be its effect. You say “it is not stated in so many words,” but you interpret the bill by what you think some of its authors meant it to be, and even by what a portion of the public expect it to be, while I interpret it simply by its language.

There is no doubt in my mind that some of the supporters of the bill meant its effect to be what you state; but others give it exactly the same interpretation as I do (Mr. Cullom for example), so that after all you will have to fall back upon the language of the law and not upon what those gentlemen intended it to mean.

Now, this brings us to the only question at issue, viz: What is the meaning of the clause, “under substantially similar circumstances and conditions?” I have endeavored to show that it means the cost of the service and competition. The whole question is simply one of the interpretation of that clause. If it means nothing, then I think the long and short haul rule in section 4 is absolute, and can only be varied by the Commission. If it means cost and competition, then the railroad companies are obliged, in the first place, to put a construction upon it, subject, of course, to the final ruling of the Commission and the courts. Each railroad company, of course, is at liberty to interpret that clause as it chooses, and perhaps the general disposition is to be on the safe side,

and say that it means nothing. I have no objection to that interpretation, but I believe the clause means a great deal, and that only by placing a proper construction upon it can the Interstate Commerce law be carried into effect and accomplish reforms, without introducing abuses.

You seem have determined to educate the people by placing a rigid construction upon section 4 that will revolutionize the transportation business of the country, and I do not know but what that may be a good plan; but it does not seem to me to be the intent and spirit of the law, as it reads, although it may have been the intent of some radical, ignorant legislators who helped frame the bill.

In an opinion given by Mr. George Davis, counsel of the Atlantic Coast line, which Mr. Walters was kind enough to forward to me, Mr. Davis quotes the following:

"A statute is an act of the Legislature as an organized body. It expresses the collective will of the body, and no single member of it, nor all the members as individuals, can be heard to say what the meaning of the statute is.

Whatever may be the views and purposes of those who procure the enactment of a statute, the Legislature contemplates that its intention shall be ascertained from its words as embodied in it. And courts are not at liberty to accept the understanding of any individual as to the legislative intent."-State v. Psartlow, 91, No. C. A. 525.

I do not think that you are justified in interpreting* the law according to the views entertained by Mr. Reagan, but that you must take the language—and that does not justify your construction.

I think you have entirely misunderstood me when you say that I hold that section 4 legalizes the present practice as regards long and short haul charges. I should first like to know what the present practice is before expressing such an opinion. What I meant was that where present practice is in accordance with the intent and spirit of the law and where the rates are reasonable and just it may be continued; where it is not, it must be abandoned; and I have no doubt that when the railroad companies examine into their present practice, they will find it necessary to make many changes in their tariffs to make them conform to the law; but why should they make any changes where they comply with the law and where their charges are reasonable and just?

You do not seem to have given any weight to the introduction of the qualifying clause into section 4, which at once relieves that section of its harsh and unjust features. That clause is in the section, and whether it came there by a mistake and contrary to the wishes of the radicals, it is not necessary for us to consider. All we need to know is simply the fact that it is there, and that it modifies the law and makes it reasonable, when without it it would be unjust, pernicious, and lead to the most serious consequences to the commerce of the country, as well as to the railroads. It is the saving clause, and I do not think the railroad companies have any right to disregard it and construe the law without giving due weight to that clause.

I am sorry that you published your paper in the shape of an argument in opposition to my interpretation. Would it not have served the same purpose if you had made your argument independently of mine, and giving your own interpretation on its merits? I feel sure that you did not correctly understand me, and as I do not desire to enter into any controversy on the subject, I am placed rather at a disadvantage. I also enclose you an extract from Mr. Davis's opinion, citing a few



American cases which sustain the interpretation given to the clause "under substantially similar circumstances and conditions” as including competition.

Yours very truly, (Signed.)

ALBERT FINK. Will you not send a copy of this letter to the parties to whom you have sent your paper?



The contention that shipments made from competitive points are not “under substantially similar circumstances and conditions” with those made at non-competitive points, is not without authority to support it. It has the sanction of a highly-respectable text writer: 'It may be said that the rule is, both at common law and under most of the regulatory statutes, that under like circumstances and the same class of goods, the same rates should be charged to all.”. Wood's Railway Law, Vol. I, p. 565. And in illustrating this general rule the author says, page 571: “Thus, if A and B are each the proprietors of a coal mine, and both send their coals to the same market, A's mine being within twenty miles of the market, and B's forty miles; in order to place A and B on an equality in the market, the company would not, for this reason alone, be justified in charging A the same rates for hauling his coals to the market that are charged to B, as this would be a palpable inequality of rates to deprive A of his natural advantages. But where there is a competing line from B and not from A, and the competing line carries the freight from B at the same rates that it is carried from X, the company would be justified in making such discrimination.”

In Rogan vs. Aiken, La. 609, the Supreme Court of Tennessee, after recognizing the common law rule that the carrier is bound to carry at equal rates for all customers in like conditions, decided that “a common carrier may discriminate in favor of persons living at a distance from the end of the route, where the object is to secure freight which would otherwise reach its destination by a different route; and other customers not in like condition will have no right of action because of discrimination, if the charges made against them are reasonable.”

In ex parte Koehler, Receiver, in the Circuit Court of the United States, 21 Am. & Eng. R. R. Cus., 52, 58, the Legislature of Oregon passed an Act entitled “An Act to regulate the transportation of passengers and freight by railroad corporations,” which provided, among other things, that " no greater or less compensation shall be charged one person than another for like contemporaneous service,” and “no greater rate shall be charged for carrying similar property a short haul than a long one, in the same direction.”

Deady, J.: “I assume that the State has the power to prevent a railroad company from discriminating between persons and places for the sake of putting one up or another down, or any other reason than the real exigencies of business.

But where the discrimination is between places only, and is the result of competition with other lines or means of transportation, the case, I think, is different.



For instance, the act prescribes a reasonable rate for carrying freight between Corvallis and Portland, or from either to points intermediate thereto. But Corvallis is on the river and has the advantage of water transportation for some months in the year. The carriage of goods by water usually costs less than by land, and as water craft are allowed to carry at a rate less than the maximum fixed for the railway, they will get all the freight from this point unless the latter is allowed to compete for it. * * * * * If the Legislature can not require a railway corporation, formed under the laws of the State, to carry freight for nothing, or at any less rate than a reasonable one, then it necessarily follows that this provision of the Act can not be enforced so far as to prevent the railway from competing with the water craft at Corvallis and other similarly situated points, even if in so doing they are compelled to charge less for a long haul than for a short one in the same direction.”



TRAFFIC ASSOCIATION. [Written for the Railway Age, June, 1886.] Watt's puff of steam has materialized into the vastest energy of the world. To regulate only its railway branch wisely in its commercial relations to a great nation is worthy any man's thought.

The complexities and difficulties of govermental administration of railway rates are greater in the United States than in any other country. This is caused by its greater area, larger railway mileage, longer coast lines, more numerous navigable lakes and rivers, diversities of soil, climate and products, differences between rates on high mountain gradient and level lines, the rapidity of traffic development, our desire to grasp foreign markets, the crudities and dissimilarities of railway charters and legislation, the proximities of foreign governments and carriers and the anomalies and contrarieties of state and national authority within and across non-physical lines. It has taken half a century in insular and parliamentary England to reach its present legal stage there and it is still incomplete and unsatisfactory. How much more difficult here!

The phenomenal increase of our people and the rapid opening of remote, new, and often sterile localities have combined to induce if not justify some excessive charges. Bonuses, discounts and speculations in bonds and shares gave fictitious values to many railways. Railway and legislative collusion not infrequently procured the sanction of law to excessive capitalization. As rapidly as new lines competed with and reduced the rates of older ones, unreasonable disparities between through and local rates often resulted. Competition became strife, strife became rancor, rancor begat reprisals, drawbacks, preferences, discriminations and excesses on local rates to equalize losses on through traffic. It is time this was controlled.

The time is here, too, when an honest railway and an honest forwarder, engaged in completing an honest commercial transaction at honest, open and non-preferential values for product and carriage, should have support and protection from law against the dishonest railway which combines with the cut-rate forwarder. Railway managers of old and responsible lines, who intend to deal fairly and impartially with the public are often compelled to bury that desire under the preferential and narrower policies or needs forced upon them by adjacent or longer or more poorly equipped railways. The latter cut rates to deplete the former, and law now encourages rather than stops them. Farther than that, the thoughtful sentiment of intelligent railway man.

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