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Mr. Bacon. It was applied to the corporation.
Mr. ADAMSON. That provision was simply taken up and put on as a rider to a bill that went through?
Mr. Mann. No; that was a separate bill. That was a matter that you had been agitating for years, and had been in all the former bills before this committee.
Mr. BACON. It was.
Mr. Mann. And was it a matter that the general counsel of the Pennsylvania Railroad then put in that bill?
Mr. Bacon. It was a part of that bill.
Mr. Mann. We had had discussions about that before that Congress convened. It was in all these bills that had been before us, practically all the same thing.
Mr. ADAMSON. Before you arrived at that Senator Elkins did just bring in a separate provision, and it went through?
Mr. Bacon. It prescribed the penalty of $5,000 for the company for each violation of the law, and it inflicted the penalty, which by the interstate commerce act was put upon the individuals, upon the companies, which had the effect of opening their mouths and making it possible to obtain convictions under the law.
Mr. RICHARDSON. Have you heard of any proceedings against the railroads in the matter of rebates?
Mr. Bacon. I have not heard of any occasion for proceedings. It has been so generally observed by the railways since its passage that there has been no occasion for prosecution.
Mr. RICHARDSON. Railways are not opposed to stopping the rebates':
Mr. Bacon. Not by any means. It is quite as much to their advantage to stop them as to that of the public.
Mr. BURKE. How much time was consumed in the hearings on this bill in the Fifty-seventh Congress?
Mr. Bacon. The hearings were commenced on the 8th of April and were concluded on the 17th of June, a period of over two months.
Mr. BURKE. Now, as I understand, you waive any further hearing? Mr. Bacon. Any further presentation of our side.
Mr. BURKE. And you expect those who are now on this committee to familiarize themselves with the subject by referring to the reports of those hearings?
Mr. Bacon. They certainly have opportunity of doing that. We wish, however, in case of any additional arguments being presented by the railway side, to have an opportunity for rebuttal. That will be all we will ask for.
In referring to my having had some part in the passage of the original interstate-commerce act, I was going to add that that is what led me to give a good deal of study to this matter, and to read up the cases and to keep close observation on the results of the operation of the act, and also on the court proceedings in cases of appeals.
The CHAIRMAN. Were you at that time in favor of the legislation that was enacted, or were you in favor of the other series of propositions that were contained in what was known as the Reagan bill?
Mr. Bacon. I favored the interstate-commerce act as it was finally reported and passed.
The CHAIRMAN. Now, did you ever hear, during all of that contention, or in any of the speeches that were ever made in Congress, any claim made that that gave to the Interstate Conımerce Commission the
power to fix a rate, and is there to your knowledge anywhere in the debates or anywhere else a sentence that seems to maintain that position?
Mr. Bacon. Mr. Chairman, the fact that the Supreme Court has decided that question it seems to me renders it wholly irrelevant.
The CHAIRMAN. No, it does not because it is claimed by many people, and I think by you, that the power has been taken away from the Commission by the Supreme Court. What I want to get at now is this: Did you ever hear, can you produce a sentence, from anyone participating in any of those debates that seems to indicate that they believed that the power was given at that time to fix rates?
Mr. Bacon. The time has passed so long that I do not recall at the present monient.
The CHAIRMAN. Did you believe at that time that the power was given?
Mr. Bacon. The question at the time of the passage of the act did not enter my mind.
The CHAIRMAN. No. You never thought of it, did you?
Mr. Bacon. I simply took observation of it as the Commission acted in pursuance of the law, that it did convey the power of changing rates.
The CHAIRMAN. In any other way than the way of recommendations?
Mr. Bacon. Yes, sir; in the way of positive orders; and those orders were recognized and acquiesced in by the railroads.
The CHAIRMAN. In how many instances ? Mr. Bacon. Well, I can recollect. After a pause.] I would be pleased to go into that later. Mr. Cooper is here, and I know he would like to say a few words to you about the bill.
The CHAIRMAN. One other question that I want to ask you. You say that you are engaged in creating public sentiment in favor of this bill. How do you do that?
Mr. Bacon. I do not say that.
Mr. Bacon. I do not think I used the word "create.” I said that my effort had been simply to ascertain the extent of the prevailing public sentiment and to develop it.
The CHAIRMAN. As a matter of fact, you and your colaborers, you and Mr. Barry particularly, do attempt to create public sentiment in favor of tbis matter?
Mr. Bacon. That has not been the intention of our committee at all. It has simply been—
The CHAIRMAN. You do go to the extent of denunciation of members of Congress who you think do not favor it, also?
Mr. Bacon. Our committee has never done anything of the kind, or anything that could be so construed.
The CHAIRMAN. Has not anyone else?
Mr. Bacon. Not during his employment by us. Not when he was engaged by the committee.
The CHAIRMAN. Has he not during the last summer, to your knowledge?
Mr. BACON. He has not been employed by the committee during the last summer. With the close of the last Congress we had no need of his services. Just before the opening of this session we reengaged him. In the meantime he has been in the employ of one or two organization, which have been seeking the same legislation; the Interstate Cattle Growers' Association, for one.
The CHAIRMAN. How many salaried officers are there in connection with this,
Mr. Bacon. With this movement?
The CHAIRMAN. And his expenses?
The CHAIRMAN. Was there not a fund raised at your last meeting for the purpose of agitating this question?
Mr. Bacon. For the purpose of publishing matter relating to it, and enlightening the public as to the progress in it and as to the purpose of it.
The CHAIRMAN. And there is no compensation paid in any way to any person save Mr. Barry!
Mr. Bacon. Not a dollar in any way, shape, or manner. On the contrary, the members of the committee have gone to a good deal of individual expense on their own account. The members
of the committee are scattered in various parts of the country, and each one is exerting his influence, of course, in his particular section of the country. The
CHAIRMAN. To what extent, to your knowledge, does the Interstate Commerce Commission or any of its officers aid in the dissemination of your literature?
Mr. BACON. To no extent whatever. We have no connection with the Commission in any way, shape, or manner.
The CHAIRMAN. None of its officers ?
Mr. Bacon. Except occasionally we have consulted with them as to the desirability of certain provisions of the bill.
The CHAIRMAN. To what extent does your committee, or do members of your committee, use the offices and the employees of the Interstate Commerce Commission in the dissemination of your literature or for your other purposes?
Mr. Bacon. In no way whatever, sir. [Retiring in favor of Mr. Cooper.]
The CHAIRMAN. I would like to pursue this matter a little further. We can hear Mr. Cooper at a later period. Have you considered the provisions of this bill, which is pending, in their relation to all of the public interests, in your judgment?
Mr. Bacon. We have certainly sought to do so.
The CHAIRMAN. Have you considered it in the relation that it bears, or is claimed to bear, to a disturbance of the powers between the threó coordinate branches of the Government?
Mr. Bacon. We have had no occasion, that I am aware of, to go into the constitutional question. I do not know that the question of the constitutionality of this bill has been raised by any of the opponents of the bill. The several distinguished railway attorneys who appeared before the committee offered no suggestion to that effect, so far as II am sure they did not. . I was going to say that so far as I observed, they did not; but I have read their testimony over and over very carefully, and I am sure that they did not. Hence I did not think it necessary to deal with it.
The CHAIRMAN. The bill you advocate proposes to confer legislative power upon an executive branch of the Government, does it not?
Mr. BACON. It proposes to confer a delegated legislative power upon the Interstate Commerce Commission.
The CHAIRMAN. You understand that to be a part of the executive branch of the Government, do you not?
Mr. Bacon. I hardly regard it as such, Mr. Chairman. The members of the Commission are appointed by the President, individually; but he has no control over them; no direct control-is not connected with any department of the Government.
The CHAIRMAN. Its duties are solely executive at the present time, are they not?
Mr. Bacon. It hardly seems so to me. The CHAIRMAN. It does not? Mr. Bacon. It seems to me that they are, perhaps, probably, of an administrative character. Whether that would properly be termed executive or not I can not say.
The CHAIRMAN. Hare you entered into the question of whether or not there is any power of review by any court of any act of the Commission, that it might perform through this grant of power to fix rates ?
Mr. Bacon. The bill specifically provides for a review by the circuit court upon application of the carrier?
The CHAIRMAN. But for what purpose? What question would the court review? You are familiar with all this subject, I take it; you have been six years constantly engaged on it.
Mr. Bacon. The bill specifically states that the court shall review it with respect to its lawfulness.
The CHAIRMAN. With respect to the lawfulness of the rate?
Mr. Bacon. With respect to the lawfulness of the order. It says that their orders shall be subject to the review of the court as to their lawfulness, reasonableness, and justice.
The CHAIRMAN. That would involve the question as to whether their rate was a reasonable rate.
Mr. Bacon. That would be, I think, for the court to determine.
The CHAIRMAN. Have not the Supreme Court of the United States specifically refused to pass upon any question of the reasonableness of rates ?
Mr. Bacon. The Supreme Court has decided that it has no power to pass upon rates to be adopted in the future.
The CHAIRMAN. Have they not decided further, have not the Supreme Court held, that the only question in connection with rates that they can pass upon is as to whether or not a given rate is an act of confiscation, and that they have nothing to do with whether a rate is reasonable or not?
Mr. Bacon. I have not so understood the rulings of the court.
Mr. Bacon. But the Federal courts have, as you know, at various times passed upon that very point, as to whether the proposed rate, or a rate proposed by a State railway commission, was confiscatory in its effect, or would be confiscatory in its effect.
The CHAIRMAN. Yes.
Mr. Bacon. They overruled the orders of the State commissioners on the ground that they were of that nature. The CHAIRMAN. Yes; that they were confiscatory? Mr. BACON. Yes, sir.
The CHAIRMAN. But have they not refused to pass upon any other question than that of whether the rate was confiscatory? Deciding as to the mere reasonableness or justice of a rate they hold to be a legislative act, and outside of the jurisdiction of the court, do they not?
Mr. Bacon. They hold that a rate for the future is outside of the jurisdiction of the court; that it can not pass upon a rate for the future.
The CHAIRMAN. That is your understanding of the matter?
The CHAIRMAN. And your advocacy of this bill is based upon that idea, that the court has the power to pass upon a question of the reasonableness of rates?
Mr. Bacon. No; I could not say that it was based upon that; it is based upon the necessity, which is manifest, that some tribunal should decide between the public and the companies in cases of dispute as to the reasonableness of rates.
The CHAIRMAN. You would still advocate the passage of this bill, even if you knew that the courts would not pass upon the action of the commission in the fixing of a rate?
Mr. Bacon. I do not go as far as that, Mr. Chairman. I feel, or at least I have thought, that those were matters for the court to determine for itself.
The CHAIRMAN. But suppose they should so hold, would you still be in favor of the bill?
Mr. Bacon. The court has held that the Commission in this case, in ordering changes in rates, has gone beyond the power conferred by the present act. Now, if we confer the power for them to make such changes by the present act, and the court decides that that is unconstitutional, we would have to abide by the result; but we would like to have the opportunity to see
The CHAIRMAN. Have you discussed those questions?
Mr. Bacon. I have not discussed the legal questions themselves very much.
The CHAIRMAN. Have any of those questions been presented to this committee by anybody!
Mr. Bacon. The constitutional questions I do not think have been specially presented to the committee. We have presented the requirements of the situation, so far as the commercial organizations are concerned.
The CHAIRMAN. For relief!
The CHAIRMAN. But you have not considered nor presented the legal aspects of the remedy?