Mr. MANN. In your statement two years ago before the Senate committee the question was raised as to the extent of the order to be made by the Commission under the Nelson-Corliss bill, and this question was asked you and you made this answer [reading]:

Senator DOLLIVER. Does the order of the Commission contemplated here apply to the individual only or to the classification?

Mr. BACON. Simply to the individual complaint. The complaint may, however, be in relation to an unjust and unreasonable rate or to an unjust and unreasonable classification.

The Commission takes into consideration the relation of that rate to other rates and determines largely upon that relation as to the reasonableness or unreasonableness. It has no power to order a general reduction. It can only order a change in a particular rate complained of in each individual case. The Commission can go no further than to change the rate in the particular instance where complaint has been made.

Mr. MANN. Now, did you intend to convey the impression by that testimony that the Interstate Commerce Commission should have authority to lower a whole lot of rates?

Mr. BACON. I had no distinction in my mind whatever between the words" a rate " and "rates."

Mr. MANN. When you say in your testimony "authority to change the particular rate complained of " you mean by that authority to change all the rates which may be named in the petition?

Mr. BACON. In the complaint; yes, sir.

Mr. MANN. Without regard to the number?

Mr. BACON. Without regard to the number; yes, sir. Subject to the discretion of the Commission, whether they have a definite relation to each other, and should be considered together.

Mr. MANN. By what authority does the Commission determine the discretion?

Mr. BACON. The law fixes the scope of complaint.

Mr. MANN. That is not discretionary with the Commission-as to what jurisdiction each shall maintain?

Mr. BACON. It is discretionary with the Commission whether it shall take up a complaint or not.

Mr. MANN. Where do you find that in the law?

Mr. BACON. In the original act.

Mr. MANN. In what way is it discretionary? The original act gives a shipper absolute authority to file a petition. The Commission has no discretion as to whether it shall maintain jurisdiction over that.

Mr. BACON. In section 13 of the act it does provide, if in the judgment of the Commission it is thought best to investigate the mattersome language to that effect.

Mr. MANN. That is an investigation on the Commission's own motion.

Mr. BACON. I think it relates to the whole thing.

Mr. MANN. I think when you read it you will change your mind, because it only relates to an investigation on the Commission's own motion. There is no discretion given to the Commission as to whether it shall entertain a petition filed by a shipper, or an association or an organization or anybody else, almost.

Mr. BACON. I would like to have section 13 of the act read.

Mr. MANN (reading):

That any person, firm, corporation, or association, or any mercantile, agricultural, or manufacturing society, or any body politic or municipal organization, 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; whereupon a statement of the charges thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time, to be specified by the Commission. If such common carrier, within the time specified, shall make reparation for the injury alleged to have been done, said carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper.

Said Commission shall in like manner investigate any complaint forwarded by the railroad commissioner or railroad commission of any State or Territory at the request of such commissioner or commission, and may institute any inquiry on its own motion in the same manner and to the same effect as though complaint had been made.

Mr. BACON. Does not that clause which says that they may conduct the investigation in such manner as they deem best give them discretion?

Mr. MANN. As to whether they shall conduct an investigation at all?

Mr. BACON. Yes.

Mr. MANN. It certainly does not, Mr. Bacon.

Mr. BACON. Is not the discretion vested in a court in relation to a complaint sufficient to warrant the Commission in doing the same thing?

Mr. MANN. The court has no discretion as to whether it shall hear a lawsuit or not.

Mr. BACON. But it often requires a complaint to be amended.

Mr. MANN. It permits a complaint to be amended, but the complaint must show upon its face, otherwise the Commission is not required to proceed. But when the complaint shows an evil on its face, within the provisions of the law, it is made the duty of the Commission to investigate.

Mr. BACON. I think that same discretion would give the Commission authority, if it deemed the complaint unduly extensive and containing points that did not properly relate to each other, to refer it back for amendment. I think the discretion vested in the Commission in relation to investigations is broad enough to admit of their doing that.

Mr. TOWNSEND. Mr. Mann, what does that sentence mean there— If such carrier shall not satisfy the complaint within the time specified, or there shall appear to be any reasonable ground for investigating said complaint, etc.

Who is to judge whether there is any reasonable ground?

Mr. MANN. That is a matter to be decided on the face of the complaint as to whether a violation of the law is made out upon the face of the complaint.

Mr. ADAMSON. Whether it states the case?

Mr. MANN. Yes; or if at any time on the proof it should appear that there was no case they could abandon it if they wished to.

But

certainly nobody proposes to confer on anybody the absolute authority to determine for itself whether it shall favor one shipper and refuse to hear the case of another shipper.

Mr. BACON. No; but it may enter into the details of the complaint, and if it regards it as inconsistent or unreasonable it can certainly refer it back and require it to be amended.

Mr. MANN. Undoubtedly there is no question about the power to amend.

Mr. BACON. The Interstate Commerce Commission is supposed to be a body of discretion and judgment, and it is not likely that it would entertain any such ridiculous complaint as would involve rates that had no relation to each other.

Mr. MANN. That would bring up the question-which I do not wish to take up just now-as to whether all rates do not have some relation to each other. In your judgment the Interstate Commerce Commission also uses the singular where it means the plural-because in their last report they say that what they want is authority to correct the rate, upon proof that a particular charge is greater than should in reason be exacted." You think by that that they mean the power to fix rates generally and not confine themselves to the particular charge?

Mr. BACON. I think they use it in the generic sense, the same as I have referred to; but the Commission can not entertain any rate not included in the complaint, and it can not make a change in the rate of its own volition, but simply upon the testimony that is produced, which indicates the necessity of making the change.

Mr. MANN. The Interstate Commerce Commission in its last report also uses this language in another place, stating what authority they

want:

The Commission may find after careful and often extended investigation that a rate complained against is unreasonable and order the carrier to desist from charging that rate for the future, etc.

You think that language means not a rate or the rate, but rates generally?

Mr. BACON. I think it is necessarily implied, Mr. Mann, that if a rate is susceptible of correction that any rate is, or any number of rates are that may be properly embraced in the case.

Mr. MANN. They also say in their last report that they ought to have authority to direct a railroad company to cease and desist from charging the rate complained of, and to substitute therefor a rate. You think that also refers

Mr. BACON. Has the same meaning exactly.

Mr. MANN. It seems to be very unfortunate that these officers of the Government have not studied the use of the English language.

Mr. BACON. It is the common use of the term between shippers and railroad men and members of the Commission and everybody that has anything to do with it.

Mr. Escн. As a matter of practice in the decisions of the interstate commerce court heretofore

Mr. BACON. You mean the Interstate Commerce Commission? Mr. Escн. Yes. When the rate was complained of before have they gone into a decision of schedules or have they confined themselves practically to the rate complained of?

Mr. BACON. They have confined themselves to the complaint.

Mr. LAMAR. What would be the difference between filing one petition complaining of 50 rates and filing 50 petitions complaining of 50 rates? Why not challenge them in one petition?

Mr. BACON. There would be no difference, but it would be a great deal more sensible

Mr. LAMAR. I ask this in view of the objection raised by Mr. Mann. Would not the power of the Commission be as comprehensive in one case as in the other? What would be the difference between filing one petition containing 50 complaints and filing 50 petitions containing 50 complaints?

Mr. BACON. There would be no difference, but I have no idea of having rates treated in that way.

Mr. SHACKLEFORD. Under the power of the Commission, would the Commission have a right, if this bill became a law, to raise a given rate in order to equalize the rates between cities or communities and railroads?

Mr. BACON. I could not pass upon that question, but I doubt very much whether they would ever feel justified

Mr. SHACKLEFORD. Not would they feel justified in doing it, but would they have authority to do it? Under the authority proposed, would the Commission have the right to raise rates on one line in order to equalize it with other lines?

Mr. BACON. I can only say in relation to that that the practice

Mr. SHACKLEFORD. I don't care for the practice; I only want to know what power they would have under this law. Would the power be there to do that?

Mr. BACON. It might be inferred. When two rates have been complained of as unjust

Mr. SHACKLEFORD. We are trying to get some light on this in order to know how to vote on the bill. I would like to know whether this power conferred on the Commission that is sought here would give the Commission a right under certain circumstances to raise rates.

Mr. BACON. I would say in reply to that that the only parties authorized to bring complaints

Mr. SHACKLEFORD. I am not talking about who are authorized to bring complaints, but what authority

Mr. BACON. Please hear me through.

Mr. SHACKLEFORD. What power the Commission would have.

Mr. BACON. The only parties authorized to bring complaints are individuals, corporations and associations, and other organizations of that kind, and those complaints will always be for the reduction of rates. There is no authority given in the act for the railway company to come in and complain that a rate is not high enough and ask the Commission to raise it.

Mr. SHACKLEFORD. Suppose it should be complained that the rate on lumber from Eau Claire to some given point was too low as compared with the rate from La Crosse. Under that would the Commission have the right, under the power sought to be given it, to raise the rate from one point to equalize it with the other?

Mr. BACON. I would say that in the Eau Claire case the Commission ordered the adjustment of those rates by the lowering of the higher rate.

Mr. SHACKLEFORD. In that case the higher rate was lowered?

Mr. BACON. Yes, sir.

Mr. SHACKLEFORD. But in the case that one rate was complained of as being too low, how would the Commission remedy a condition of that sort?

Mr. BACON. That is provided under this bill that is proposed. They can not under the present law.

Mr. SHACKLEFORD. How would they do it?

Mr. BACON. We can only judge how they would do it by what they have done. They have always done it by reducing the higher rate. This bill provides that the Commission shall declare what the rates shall be from each point in question, not declaring the difference-or, rather, it does provide that after it declares the difference if it becomes necessary to fix it absolutely from each of the points in question it is authorized to do that.

Mr. SHACKLEFORD. Then would a railroad that lowered that rate infract the law?

Mr. BACON. It certainly would.

Mr. SHACKLEFORD. It confers power, then, on the Commission to raise rates above what the railroads put them at?

Mr. BACON. Not by any means. I would like you to repeat that last remark.

Mr. SHACKLEFORD. The question I asked was whether this power conferred upon the Interstate Commerce Commission would give it the right to raise rates in a case, or to forbid the railroads from lowering its rates-in the Eau Claire and La Crosse case, for instance.

Mr. BACON. After it has fixed the proper relation of rates from two points

Mr. SHACKLEFORD. I mean in order to preserve what they determine to be a fair adjustment, would they say to one railroad, "You bring your rate down to this point," and to the other railroad, " You bring your rate up to this point "-would they have authority to do that under this bill?

Mr. BACON. They would have authority under this bill to fix the two rates and to require those two rates to be observed. And if after fixing those rates one of the railroads should go below it it would have to come before the Commission again.

Mr. SHACKLEFORD. Then if the Eau Claire rate was as low as it ought to be and the La Crosse rate was still lower, what would the Commission do to adjust that?

Mr. BACON. It would require the observance of the rate it had previously fixed.

Mr. SHACKLEFORD. If the rate was lower than that rate they would compel it to come up to it then?

Mr. BACON. I don't think so. They never have done that.

Mr. SHACKLEFORD. How would they get out of that situation, then? Mr. BACON. I have reference to that Eau Claire case; Í have studied that.

Mr. SHACKLEFORD. I would like to get at that-where a rate is fixed and the railroad fixes a still lower rate, how would you preserve that adjustment?

Mr. BACON. By observing the rate the Commission has fixed.

Mr. SHACKLEFORD. Supposing the rate is below that, how would you adjust it?