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wealth, experience, and knowledge he must fight his battle, alone and unaided.
I take it that no legislation is necessary. to declare that extortion and overcharges shall not be permitted. Under the common law to-day, a person who suffers by extortion may bring his action in the courts and recover if he can make his proofs.
But the difficulty with him under the Reagan bill is to establish his cause of action. He has the affirmative of the issue, and the burden is upon him to show that a given rate—the one exacted from him-is excessive or extortionate. Under the other bill this is not true. He has a friend at court. It becomes under the Cullom bill the duty of the commission--skilled men, experts on the subject of transportationto investigate for him and ascertain the very facts, to furnish the very proofs of all that he may need. They have the broadest range, the amplest facilities, to procure the necessary information. They may resort to and examine all sources of information; and the expenses are paid by the Government. The bill provides that the commission shall have all of these ample opportunities for investigation, and they are required under the law to make their findings of fact; and these findings in the subsequent litigation that may occur are to stand as true prima facie. These findings make out the complainant's case for him, shifting the burden of the proof from the weak, where it can not be made, on to the strong. That is on the supposition that the complainant is in the right.
Why, gentlemen, I regard this as a boon of inestimable value in equalizing the possibilities that may result from litigation. To-day if a suitor goes into court and attempts to establish an affirmative proposition against a railroad carrier he finds that the experts, the men who have the information upon the subject, are all of them upon the other side of the question, all of them hostile to his purpose. The great difficulty in the way of the overcharge shipper lies here: Suppose my friend from Nebraska is called as a witness to substantiate the proposition that a given rate is extortionate. He perhaps has much more of information than the average suitor on subjects of this kind. He says the given rate in inquiry is extortionate. How do you know? is the question submitted upon cross-examination-I am trying to look at this and discuss it as a practical question, as something every man will have to meet under the terms of the Reagan bill—"how do you know tbat this is extortionate ?” Perhaps the very best reason that he could give would be to suggest a comparison between the rate charged and another rate charged by some other corporation.
Well, sir, the attorney would suggest, “What are your means of information? What is your knowledge as to the conditions in the two cases? What do you know of the elements of cost that enter into the thing we call transportation, forty or fifty or sixty distinct elements of cost-the grades here and there, the cost of construction of that road, the cost of this; how much of the time of that is impeded by snows or storms as compared with this; the amount of traffic of the two roads, the cost of fuel?" And so he would go through the whole list of factors that aid in making the total of expense in moving freights.
The gentleman would undoubtedly be compelled to say, unless his information is more ample and his knowledge much greater than that of the average citizen, that he was unable to answer these questions. His evidence would have absolutely no weight because not based on knowledge of the subject matter, and the suit would fail. Hence it is
a mere mockery to a man to say he shall have bis right of action; it is a mere mockery to say that the railroad corporations shall not impose upon him when you give him po means to make good his assertion that they have imposed upon him. It is not enough to give him a right of action. If you intend to give him anything of value give him such a remedy as will enable him to assert and maintain his rights in the courts, if the corporation that has wronged him will not obey the findings and order of the commission and compel him to go to the courts for relief.
[Here the hammer fell.]
Mr. O'NEILL, of Pennsylvania. I yield to the gentleman the remainder of my time.
Mr. HEPBURN. The Cullom bill gives the facilities and furnishes the aids. Now, gentlemen, we can secure the advantages which are demanded if we refuse to vote for the adoption of the amendment and let the question come before the House as to whether we will bave legislation upon this vital question, or whether, through an adherence to the report of the Committee on Commerce, we will suspend action between the two Houses and remain in precisely the same condition we have been in for all time past.
If it were not for the known and well-known opinions and integrity of the gentlemen who are urging the adoption of the Reagan bill, we might almost suspect that they were the men who wanted no action at all; that they are pursuing a course they know will leave the corporations of the country absolutely untrammeled, and furnish the people no relief whatever.
Mr. REAGAN. I desire to ask the gentleman a question. I wish to ask the gentleman from Iowa how he gets the information that the Senate is so firmly fixed in its opinion that there is no compromise pussible?
Mr. HEPBURN. I judge from the action of the Senate heretofore. The bill of the gentleman was before the Senate at the last session. It received merely 11 votes and no more. The gentleman knows the facts as well as I. The Cullom bill passed the Senate by a vote of 42 to 2, I believe.
Mr. REAGAN. I do not know that.
Mr. HEPBURN. Then the gentleman is not so familiar with the subject as I had supposed.
Mr. REAGAN. The gentleman is not authorized to speak for the Senate, or say that it will not agree to a compromise.
Mr. HEPBURN. I am only speaking from sources which are open to the gentleman in common with myself.
Mr. O'NEILL, of Pennsylvania. I gave the balance of my time to the gentleman from Iowa.
The SPEAKER. The gentleman's time had expired.
Mr. O'NEILL, of Pennsylvania. I think not, Mr. Speaker, until 5 o'clock.
The SPEAKER. But the gentleman had occupied an hour. The Chair was not aware of the fact that he had more time than that.
Mr. McMILLIN. Mr. Speaker, having been in the chair at the time, I will state that the gentleman's hour expired at five minutes before 5 o'clock, but he was entitled to an hour and five minutes as the Chair understood.
The SPEAKER. Then the gentleman from Iowa will proceed until 5 o'clock.
Mr. HEPBURN. I will reserve the remaining five minutes until the evening session.
EVENING SESSION. The recess having expired, the House reassembled at 8 o'clock p. m.
The House was called to order by Mr. McMILLIN as Speaker pro tempore, who directed the reading of the following letter: HOUSE OF REPRESENTATIVES OF THE UNITED STATES,
Washington, D. C., July 21, 1886. I hereby desiginate Hon. BENTON MOMILLin to preside as Speaker pro tempore at the session of the House this evening.
JOHN G. CARLISLE, Speaker. Hon. John B. CLARK, Jr., Clerk of the House of Representatives.
INTERSTATE COMMERCE. The SPEAKER pro tempore. The House is in session this evening under its special order, for debate only, upon the bill that was under consideration at the hour when the House took a recess, the bill to regulate commerce. Mr. HEPBURN. Mr. Speaker, I reserve the remainder of my time.
Mr. CALDWELL. Mr. Speaker, the agitation of the question of the control of railroads, whether by State or national authority, has since its origin developed a wonderful change in the opinion of not only the general public but the railroads themselves. In many and I believe all of the States every proposition, whether of control by commissioners or statute, was fought by the roads in the press, at the polls, or in the courts. W. P. Shinn, in an article on the “relations of railways to the State," published in the Railway Review in March of this year, says:
The leading railroad companies, which formerly opposed such a commission are now almost without an exception in its favor; not because, as has been charged, they expect to be able to control it, but because it places between the companies and the public a responsible organization to which both parties can appeal and in the decisions of which both will acquiesce. It substitutes the forum for the public prints in the trial of cases of complaint; and all experience goes to show that under the light of investigation nine-tenths of the complaints made tail of substantiation, and thus grave causes of friction are removed.
In the discussion of this measure before the Commerce Committee of this Congress there was, as I recollect, only one man, and he was from Tennessee, who lagged behind the procession and stood out against the regulation either by the Reagan bill or a commission. For years nothing was heard but an appeal to supposed self-regulating laws of trade and competition, which were alone to be relied on for the regulation of reasonableness of charges and the prevention of unjust discriminations. While not denying in terms the power of Congress to regulate commerce between the States, it was denied that Congress had the right to control the common carrier or to control the commerce passing between the States.
Mr. Sellers said before Commerce Committee, Forty-eighth Congress: If you have followed my remarks I have said, for the transportation of goods and persons, for the regulation of the charges of a common carrier on land highways there is no direct power in Congress; that is wholly in the States.
Near the same time that these arguments were being made here able railroad attorneys were insisting before Judges Baxter, Hammond, and Key, in the Federal court at Nashville, that a law creating a railroad commission for the State of Tennessee to regulate rates in the State was void and a violation of the Constitution of the United States, because it was a regulation of commerce between the States.
The argument prevailed with the court, notwithstanding the undoubted fact that that act by its terms dealt alone with rates inside the State of Tennessee, and its findings as to rates were not conclusive on the companies, but only prima facie correct, in any trial resulting from misunderstandings or differences with them.
Mr. Fink, the ablest railroad expert perhaps in the country, stated the position to be that:
All business belongs to the railroads that they can get at some profit. If it pays you little, you take little, rather than nothing; that is the principle recog. nized in all commercial transactions; every merchant that sells goods, sells calicoes or other cheap goods at a low profit, or even less than he paid for them, and sells silks at a larger profit to make up for the loss on the cheaper goods.
Mr. Charles E. Perkins, president of the Chicago, Burlington and Quincy Railroad, in a letter to the chairman of the select committee of the Senate, says:
Railroads may be said to manufacture a cominodity for sale, namely, trangportation. * They (the railroads) should stand on precisely the same ground as that occupied by other commercial ventures.
Charging a lower rate for a long haul than for a short haul, or making concessions to large shippers as against small shippers is really doing business at wholesale instead of retail. And the attempt has often been made to show that it is unjust discrimination. All trade is full of injustice in this sense. A man who . buys anything in small quantities pays more than one who buys at wholesale.
It is expedient that shippers and carriers should be left free to make their own bargains. Society should treat railroad transportation as commerce nd let prices alone.
In short, the position taken by the railroad management is summed up in the report of the select committee of the Senate on i interstate commerce as follows (page 183):
A railroad corporation has been looked upon by its managers as an association of individuals engaged in furnishing and selling of transportation for their own advantage and free to conduct the business in their own way as individual mercantile enterprises are conducted.
This position is utterly irreconcilable with the legal status of these corporations as common carriers. The common law since the time of Sir Matthew Hale has fixed and determined the character and obligations of those who exercise the business of carrying as a public employment.
The carrier may stipulate what his freight charges and fares shall be, but the law imposes the obligation that they shall be reasonable and not extortionate. Hence, he in fact does not fix the amount charged. He can only charge what is reasonable, and the law fixes that. I would not, however, have it understood
Says Lord Mansfieldthat carriers are at liberty by law to charge whatever they please; a carrier is liable by law to carry everything that is brought to him for a reasonable sum to be paid for the same carriage, and not to extort what he will.
This is the law to-day. (kedfield, 95; 12 Wallace, 270.)
Chief Justice Taney, in 5 Howard, 583, says common carriers exercise a sort of public office and have duties to perform in which the public is interested.
The Supreme Court of the United States has announced the law authoritatively in this matter.
In Munn vs. Illinois (4 Otto), the court say: The very essence of government has found expression in the maxim "Sic ulere ul alienum non lædas." From this source came the police powers, which, As was said by Mr. Chief Justice Taney in the license cases (5 How., 583),
nothing more nor less than the powers of government inherent in every sovereignty, * that is to say * * * * the power to govern men and things.
Under these powers the Government regulates the conduct of its citizens one toward another, and the manner in which each shall use his own property, when such regulation becomes necessary for the public good. In their exercise it has been customary from time immemorial in England, and in this country from its first colonization, to regulate ferries, common carries, hackmen, bakers, millers, wharfingers, inn-keepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodation furnished, and articles sold.
This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what is without its operative effect. Looking then to the common law, from whence came the right which the Constitution protects, we find that when private property is "affected with a public interest it ceases to be juris privati only." This was said by Lord Chief-Justice Hale more than two hundred years ago in his treatise De partibus marts (I Harg. Law Tracts 78), and has been accepted without objection as an essential element in the law of property.
Property does become clothed with a public interest, when used in a manner to make ii of public consequence, and affect the community at large.
When, therefore, one devotes his property to a use in which the public has an interest he in effect grants to the public an interest in that use, and must submit to be controlled by the public, for the common good, to the extent of the interest he has created. He may withdraw his grant by discontinuing the use, but so long as he maintains the use he must submit to the control.
Common carriers exercise a sort of public office, and have duties to perform in which the public is interested. Their business is, therefore, affected with a public interest within the meaning of the doctrine Lord Hale has so forcibly stated. But we need go no further. Enough has already been said to show that when private property is devoted to public use it is subject to public regulation.
We know that this is a power which may be abused; but that is no argument against its existence. For protection against abuses by Legislatures the people must resort to the polls, not to the courts.
Not only is it true that railroads are subject to regulation and control by law as common carriers in a business affected by a public use, but they are also public highways. It is true that they are to be used in a particular way, but they are nevertheless highways, and as such subject to control.
The Supreme Court of the United States says:
"That railroads, though constructed by private corporations and owned by them, are public highways has been the doctrine of nearly all the courts erer since such conveniences for passage and transportation have had any existence. Whether the use of a railroad is a public or a private one depends in no meas. ure upon the question who constructed and owns it. It has never been considered a matter of any importance that the road was built by the agency of a private corporation. No matter who is the agent, the action performed is that of the State. Though the ownership is private, the use is public. So turnpikes, bridges, ferries, and canals, although made by individuals under public grants, or by companies, are regarded as publici juris.
The right to exact tolls or charge freights is granted for a service to the public. The owners may be private companies, but they are compelled to permit the public to use their works in the manner in which such works can be used.
It is said that railroads are not public highways per se; that they are only declared such by the decision of the courts, and that they have been declared public only with respect to the power of eminent domain. This is a mistake. In their very nature they are highways. It needed no decision of the court to make them such. (16 Wallace, 694-6.)
It follows that these corporations are thus on two distinct grounds indubitably the subjects of the control of Congress, under its grant of power to regulate commerce among the States. And in asserting and exercising the right to tax traffic between the States all it will bear the railroads have in effect usurped the power of Congress to regulate interstate commerce.
In support of their discriminations against persons and localities they are forced to claim to be merchants, and every argument offered in support of their right to sell transportation at such rates as they deem proper is in derogation of the common law and destructive of the rights