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injustice in the rate relations which were made the subject of complaint, and there can be no controversy over the suggestion that their enforcement would have brought injustice. There is probably no one of these cases in which the enforcement of the Commission's order would, directly, have modified the rates actually paid. The carriers affected might have been compelled to withdraw their competition for the long haul traffic, but it is not at all likely that in any case they could have afforded to reduce their intermediate rates to the level fixed by competition at the terminals. In a few more recent cases the Commission has recognized the illegality of its former efforts and has given what it has regarded as sufficient consideration to competition of the character formerly declared to be without effect as a defense. In these cases, however, the Commission appears to have fallen into the error of imagining that it was the purpose of the law to deprive certain communities of natural advantages of location which enable them to enjoy the service of great and competing routes of transportation, by land or by water or by both.
The Griffin case (see page 148) is typical. The court said that the enforcement of the Commission's order would, as its first effect, "immediately disorganize and disarrange the entire commerce of which Macon is the receiving and distributing point;" and that, without material benefit to the producers and consumers at Griffin, “the commerce of Macon would be destroyed in exact proportion with its inability to meet the prices of its competitors.”
ATTEMPTS AT RATE MAKING.
The last class of cases which need be mentioned is that in which the Commission has attempted to control rates either absolutely or relatively. The cases of this sort which have gone to the courts have sometimes been decided against the Commission because of its attempts to exercise legislative functions that have never been delegated to it, but a study of the decisions themselves, affords ample warrant for the statement that the disapproval of the Commission's action has usually extended to its conclusions upon the facts. Thus, in the “Coxe” case (see page 37) the court reported that the basis of the Commission's determination as to what constituted a reasonable rate under the circumstances was an “unwarrantable" and "unreliable" estimate which the Commission had based upon “an erroneous principle.” In the “Social Circle” case (see page 42) the court declared that the Commission had omitted to consider a fact of controlling importance, and in the “Cattle Raisers' " case (see page 160) the Supreme Court distinctly said that in its opinion “the order of the Commission was not sustained by the facts upon which it was predicated."
POWERS OF THE COMMISSION.
It is frequently urged that when the courts have differed with the Commission in their conclusions of fact, it has been as a consequence of the right of the courts to make their investigations as broad as seems to them desirable. They are not bound by the testimony heard by the Commission. It has been common for new testimony to be introduced in the Circuit Courts, and some of the decisions show that this testimony has been of controlling force. The investigating powers of the Commission, however, are most ample. It is not strictly bound by the ordinary rules of evidence, and the courts have held that in deciding whether their aid shall be available, as provided in the law, for compelling the production of testimony, either oral or documentary, before the Commission, they must be very liberal in determining what inquiries are material and relevant. In other words, if in certain cases the record made before the Commission has not been complete enough to afford the basis of a satisfactory determination of the matters involved by the courts, it has been because the Commission itself did not utilize the broad powers of investigation conferred upon it by Congress. It has always had the power to extend its investigations in any case to the most remotely relevant or material fact. If it has failed to appreciate the importance of evidential facts which have been brought out in subsequent proceedings before the courts, it is certainly creditable to the wisdom of Congress that the law has provided for supplementing its inquiries.
The Commission is not a powerless or impotent body. The interpretation of the present statute by the courts is now almost, if not quite complete. If the Commission chooses frankly to accept the definitions of its authority laid down by the courts, and to proceed in accordance with them there can be no genuine case of injustice in the relations between railway carriers and their patrons, in which some relief cannot be secured under the statute as it stands. The records show that numerous modifications in rate schedules have been secured through the operation of the law and the intervention of the Commission. It is only in less than 2 per cent of the cases of alleged injustice which have been brought to the attention of the Commission that the record discloses that it has not succeeded in doing that which it has attempted. A part of this 2 per cent of all the cases has gone to the courts, and in all but three instances the courts have, for one reason or another, concluded that the Commission has acted illegally.
The brief epitome of the cases which has been given above is supplemented by the memorandum on the following pages in which each of them is separately considered and analyzed. There are very few in which the extracts from the decisions of the courts that are given do not show that, to the judicial view, the action of the Commission appeared to be unwise as well as unlawful.