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Passenger rates have been the subject of controversy in but two of the cases in which the Courts have been appealed to for the enforcement of the Commission's orders. One of these cases was that of a negro named Heard, who obtained an order from the Commission directing the Georgia Railroad to discontinue practices, connected with the use of so-called “Jim Crow” cars, which were regarded as unjustly discriminating against the complainant. This case was withdrawn before decision. The other passenger rate case is known as the "Party Rate" case (see page 29). It arose through the desire of one railway company to be relieved from one phase of its competition with a rival carrier. The order of the Commission would have mitigated the competition in the desired degree had not the Court declined to enforce it. Whether the outcome of this case resulted in substantial justice may be inferred from the statement of the Court that in making these “party rates” the defendant was merely putting into practice a "reasonable and well settled business practice,” that its revenues would " be seriously impaired” if the practice were discontinued, and that this practice afforded “convenience and benefit” to a portion of the public.


Three of the cases which have gone to the Courts have related to transportation practices rather than to rates. One of these, the “Orange Routing" case (see page 182), appears to have been due to an effort on the part of the complainants to secure the continuance of illegal and secret deviations from the schedules, by parties other than the defendants, which amounted to rebates. The Commission decided in favor of the complainants, but there was a strong dissenting opinion from the Chairman (see page 183). The Circuit Court has decided this case in favor of the enforcement of the Commission's order, but an appeal is now pending. Another case of this character, the “Cartage” case (see page 47), was prompted by the desire of one railway to weaken a competitor. In this effort the carrier was able to secure the co-operation of the Commission, but again its decision did not survive judicial scrutiny. The Circuit Court called attention to the admission of the counsel for the complainants before the Commission, that the complainant had no real grievance but had been instigated in making complaint by a railway which was paying the expenses of the litigation, and the Circuit Court of Appeals noted that the effect of enforcing the order would practically deprive the defendant of its ability to compete with the rival which was responsible for the complaint. Another of these cases was brought at the instance of a railway which desired to be relieved of a contract that it had entered into with other railways, and to force the latter to provide, at their own expense, facilities for bringing about that result. The Circuit Court, which refused to enforce the Commission's order, declared this to be the fact, and asserted that the Interstate Commerce law “was never intended to invade the domain of private contracts between common carriers, which were valid when made, and are not in conflict with the provisions of the law."


The remaining cases in which appeal has been made to the courts have been those in which the Commission has attempted to control adjustments among freight rates. Roughly speaking, these are of two classes. Those in which the whole question has been that of absolute or relative reasonableness under the First or Third sections of the Act, and those in which the Fourth or long and short haul section has been involved. Of the long and short haul cases, which considerably exceed the others in number, it may be said that, if in any of them there were unjust relations which might have been relieved through the lawful action of the Commission, that body adopted an erroneous interpretation of the law which prevented the beneficial results that might have followed action clearly within its authority. The only case under the Fourth section which can be regarded as an exception to this rule is the “San Bernardino” case (see page 34), decided by the Commission while it adhered to the rule, laid down by Judge Cooley with the unanimous approval of his colleagues as members of the original Commission, that the carriers must judge for themselves in each instance whether there are dissimliar circumstances and conditions which permitexceptions to the general rule that there shall be no higher charge for intermediate hauls than for longer hauls over the same line in the same direction, when the latter include the former. In the "San Bernardino" case, however, the Court, while not criticising the conclusions of the Commission as to matters of law, declared that the facts were “widely different from those set out in the report of the Commission.”

From its organization in 1887 until November, 1892, the Commission adhered to the rule, just referred to, which was formulated in the first important case that arose under the Fourth section. In deciding the Georgia Commission cases (see page 87), however, the Commission abandoned this rule so far as it related to the competition of carriers subject to the Act to regulate commerce and declared that where the dissimilarity of circumstances relied on to justify exceptions to the general rule were the consequence of such competition, dissimilarity could not be set up as a defense to a complaint of violation of the law, but must be made the basis of an application to the Commission for permission to make the greater charge for the intermediate haul. After adopting this interpretation of the law, the Commission for a number of years declined to consider evidence tending to prove the existence of dissimilar conditions arising through the competition of interstate railway carriers or of different markets, thus preventing the introduction of testimony which the courts have declared to be of controlling importance. It is true that this erroneous interpretation of the law has prevented the enforcement of the orders in these cases, but it is equally true that the Commission never expected obedience to them, and that they are to be regarded as strategic moves in a combat which the Commission proposed to conduct along lines that it hoped would force the carriers to appeal to it for relief. There seems to be ample justification, not only in the case to which it was applied, but in most of these cases, for the observation of the Supreme Court, in deciding the Chattanooga case (see page 78), that in making its order“ the Commission thought that literal enforcement would bring about an injustice * * *" In fact, before making some of them, the Commission allowed an interval to elapse for the avowed purpose of permitting applications for relief, and it provided for the suspension of several of the orders after they were made in case such application should be made. In many of these cases the Courts distinctly expressed the view that there was no

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