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Two sections of the law confer power upon the commission to entertain and decide applications and petitions. Section 4 empowers us upon applications by a common carrier to authorize such common carrier in special cases to charge less for longer than for shorter distances, over the same line; and also to prescribe the extent of relief from the operation of the former part of the same section which a designated common carrier may from time to time enjoy. A large number of petitions have been filed under this section, the consideration of which is at this time engaging the attention of the commission, and nothing said in this opinion is to be treated as in any manner bearing thereon. It is obvious that applications like those of the Railway Conductors' and the Traders' and Travelers' Union have no relation whatever to the duties imposed upon us by section 4. And this is the only section of the law which the commission has power to suspend or relax.

Section 13 authorizes complaints to the commission and confers jurisdiction to entertain the same. It provides that any person complaining of anything done or omitted to be done by any common carrier subject

to the provisions of this act in contravention of the provisions thereof may apply to said commission by petition, which shall briefly state the facts, notice and opportunity for answer having been given. Unless satisfaction is made an investigation is required. Upon such an investigation the commission will necessarily entertain the consideration of the question whether the conduct complained of is or is not in contra. vention of the provisions of the law; and if it so adjudge it is authorized to issue a notice enjoining the carrier from further violation of the law and to award reparation for the injury done, or both. But neither the Railway Conductors' nor Traders' and Travelers' Union complain that any common carrier has violated the law. On the contrary, they both aver that the railroad companies do not now violate the law, and do not wish to do so. The conductors say that they fear they will not receive passes as heretofore, and the Traders and Travelers' say that they fear commercial travelers will not be allowed free transportation for 150 pounds of extra baggage, as was allowed last year. They present no complaint of the provisions of the law. If a railroad company should issue a pass to a conductor and his family to attend the approaching convention, or should transport three hundred pounds of baggage free for a commercial traveler, under the registry and indemnity system, and some person feeling aggrieved should make complaint of unjust discrimination, it would then be proper for the commission to entertain the question of whether such conduct was or was not in violation of the law, and if so whether it was or was not within the exceptions as stated in section 22. Complaints may also be presented if the charges made by the carriers are not considered reasonable and just. But until questions of this kind come before us in the way clearly indicated by the statute, it would be worse than useless for us to express our opinions or give advice. We should not only lay ourselves justly open to the charge of assuming unwarranted authority, but should also run great risk of involving als concerned in what the courts might afterward hold to be breaches of the law, by hasty and ill-considered conclusions, based upon ex parte statements and arguments. Although it might be desirable, or at least convenient, in respect to any piece of new legislation to have a tribunal

established to which inquirers might apply for instruction and advice regarding the meaning of the law and its application to suggested “circumstances and conditions,” a moment's reflection will show that no such tribunal could be properly erected. Congress has not taken the management of the railroads out of the hands of the railroad companies. It has simply established certain general principles under which interstate commerce must be conducted.

It has enacted in section 1 that all charges for interstate transportation “shall be reasonable and just;" has prohibited in section 2 all manner of unjust discriminations; has forbidden in section 3 all undue and unreasonable preferences and advantages; has required in the same section reasonable and equal facilities for the interchange of traffic, and has prohibited in section 5 the pooling of freights. That in substance is the interstate commerce law.

There is nothing novel in these provisions. They simply bring back the business of the common carriers to the well-settled principles of the common law. Yet no one can deny that there was urgent need of their statutory formulation. Alleged difficulties in putting them in operation only disclose examples of the extent to which they have been violated in the past. These sections of the act are expressed in plain words. A construction must be given to them in the first instance by the carriers and their patrons. When a course of conduct has been adopted, of which complaint is made that it violates the law, the decision of the question will rest with the courts or with the commission, as the complaining party may elect. This is the orderly method in which all legislation is administered and applied, and the statute in question presents no exception.

One more suggestion may properly be added. It appears from the numerous petitions that have been laid before us for preliminary advice, many of them obviously upon the suggestion if not by the procurement of the carriers themselves, that common comment on the law, by the carriers and those who have heretofore enjoyed special favors at their hands, describe the system of penalties which the law provides as extreme, and the risks imposed upon unintentional and unwitting violators of its provisions as enormous. Such comment seems to us neither fair nor just. It is true that section 8 provides that for violations of the law, and for failure to do an act which the law requires, the offending carrier shall be liable to the injured party for the actual damages sustained, together with a reasonable counsel or attorney's fee, to be fixed by the court, and collected with the costs in the case. It is also true section 10 imposes a fine of “not to exceed $5,000" upon common carriers and their officers, agents, and servants who willfully do or cause to be done, or willingly suffer or permit to be done, any prohibited act, or upon conviction in a district court of the United States. The civil remedy described in section 8 adds an attorney fee to the existing common law right of any injured party to recover the full amount of his damages, a condition of affairs which can not greatly alarm corporations disposed to fair dealing ; while the criminal remedy given in section 10 obviously pertains to intentional violators of the law, and is in these cases to be graduated by the court according to the enormity of the offense.

Good faith, exhibited in an honest effort to carry out the require

ments of the law, will involve reasonable and fair-minded officials in no danger of damages or fine. The elasticity of the statute in their favor is noticeable. The unjust discrimination of section 2 must be “in a like and contemporaneous service in the transportation of a like kind of traffic, under substantially similar circumstanced conditions."

The preference or advantage of section 3 must be "undue or unreasonable." Throughout the act, as it now stands in confessedly experimental form, there is exhibited an obvious and generous pnrpose to allow to the corporations ample scope in the conduct of their business as common carriers for the people, and fair consideration of every reasonable claim, hile insisting upon just, impartial, open, and consistent rates of charge to which every citizen shall be subjected alike whose situation is the same. Surely, the people could not ask for less. The language and the tenor of the act wholly fail to justify railroad man. agers, if any such there be, who refuse to accept responsibility, decline to offer rates, neglect to announce conditions of traffic, embarrass the customary interchange of business, and impose stagnation upon trade, while they "stick in the bark” of the phrases and expressions of the law, inventing doubts and imagining dangers. It is still more unjustifiable for railroad companies to make use of the general clauses of the law, ignoring its modifying and enlarging words and formulas in order to impose additional burdens upon localities, trades, professions, manufacturers, consumers, classes of travelers, or employees, straining and representing every construction in favor of the corporate treasury, and quoting the new law as their authority for all manner of petty exactions.

The powers of the commission are entirely adequate to cope with such conduct, the existence of which is not affirmed, although it has been somewhat publicly suggested. The same statute which enacts that charges for like service shall be uniform to all, also provides that charges in every case, and for every kind and class of service, shall be reasonable and just. As the law is practically applied, it is said to contain many elements of advantage to the economical and profitable management of the business of the carriers, which they have not been slow to apprehend and take the benefit of. The commission venture to express the hope that with this explanation respecting the mutual functions of the carriers, and the commissioners in carrying the law into effect according to its true intent and meaning, there will be no lack of good faith and active co-operation in continuing the normal activity of every kind of reputable industry and traffic throughout the land, under favorable, fair and reasonable terms, conceding frankly to the people all the rights, benefits, advantages, and equal privileges which the “act to regulate commerce” was intended to secure.

Petition of Transcontinental Lines Granted. On April 23, 1887, the Interstate Commerce Commission made an order suspending the fourth section of the law for seventy-five days as applied to the transcontinental roads, but subject to revocation and with a proviso that intermediate rates shall not be raised above those in force

on April 20. This applies to the Northern Pacific, Southern Pacific, Atchison, Topeka and Santa Fé, and St. Louis and San Francisco lines. In an official statement accompanying the order the Commissioner says :

“It is in evidence before us that the rates to and from local points on some of the transcontinental lines have been somewhat reduced since April 5, and also that the through rates which prevailed prior to April 5 were the result of a war of rates among the lines and produced a discrepancy between local rates and through rates, which the carriers agree was unreasonable and do not desire to return to.

“The commission is earnestly engaged in considering the course which it will finally adopt in reference to section 4. Many conflicting interests have indicated a desire to be heard, and should have an opportunity before our final decision is reached. All such persons are invited to present facts and arguments. For the purposes of this matter only and without authorizing any general practice of that nature, in order to obtain the fullest information and afford the most extended facilities to distant points of the country, the commission will receive affidavits as to matters of fact and printed or written arguments or matters of fact or of law, which should be presented without delay. This invitation extends to the general subject of questions arising under section 4, and is not limited to the petitions of the transcontinental roads.

Meanwhile the attention of the carriers is directed to the propriety of devoting the intermediate time to the preservation and adoption of tariffs which shall attempt to meet in good faith the requirements of the

'act to regulate commerce,” giving the same a fair and reasonable interpretation in respect to all its various features. In making these orders the commission does not finally determine upon their propriety or justice; but only that pending the investigation now in progress, it is proper, right and just that the permission provided for be given, in order that the general business of the country shall receive no unnecessary shock or damage. The orders are intended to prevent, as far as may be possible, the occurrence of mischief in a period which, in a certain sense, is transitionary and which must of necessity involve changes, the full extent of which can not at present be forseen.”




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