of the public, who are bound to avail themselves of their facilities for transportation. In the face of decision after decision of the courts they still assert, as we have seen, that it is impossible to subject them to control as common carriers on a public highway without destroying their property and contract rights.

Mr. Justice Johnson, in Gibbons vs. Ogden (9 Wheaton), says:

Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society labor, transportation, intelligence, care, and the various mediums of exchange become commodities and enter into commerce; the subject, the vehicle, the agent, and their various operations become the obJects of commercial regulation.

In the Reading Railroad Company vs. Pennsylvania (15 Wallace) the court held that

Beyond all question the transportation of freights or of the subjects of commerce for the purpose of exchange or sale is a constituent of commerce itself. This has never been doubted, and probably the transportation of articles of trade from one State to another was the prominent idea in the minds of the framers of the Constitution when to Congress was committed the power to regulate commerce among the several States.

In Mobile vs. Kimball (102 U. S.) the power of Congress to regulate commerce is declared "to be without limitation. It authorizes Congress to prescribe the conditions upon which commerce in all its forms shall be conducted." * * * It is under an act of Congress that the railroads chartered by the different States connect with the roads of other States so as to form continuous lines. (Act of July 15, 1866.) In the absence of Congressional action in this matter the railroads have attempted to regulate the commerce of the country in their own way, and still shrink from Congressional control. In the report of the Select Committee of the Senate on Interstate Commerce the indictment against them is drawn by no unfriendly hand and upon a full and patient investigation and survey of the whole field.

And I read this in extenso, because it has been stated here by the gentleman from Pennsylvania [Mr. O'NEILL] that the complaints against the railroads were unfounded-that the beneficent management of the roads had taken the ground from under every objector. The indictment consists of eighteen counts, as follows:

THE CAUSES OF COMPLAINT AGAINST THE RAILROAD SYSTEM.

The complaints against the railroad system of the United States expressed to the committee are based upon the following charges:

1. That local rates are unreasonably high compared with through rates.

2. That both local and through rates are unreasonably high at non-competing points, either from the absence of competition or in consequence of pooling agreements that restrict its operation.

3. That rates are established without apparent regard to the actual cost of the service performed, and are based largely on "what the traffic will bear."

4. That unjustifiable discriminations are constantly made between individuals in the rates charged for like service under similar circumstances.

5. That improper discriminations are made between articles of freight and branches of business of a like character, and between different quantities of the same class of freight.

6. That unreasonable discriminations are made between localities similarly situated.

7. That the effect of the prevailing policy of railroad management is, by an elaborate system of secret special rates, rebates, drawbacks, and concessions, to foster monoply, to enrich favored shippers, and to prevent free competition in many lines of trade in which the item of transportation is an important factor.

8. That such favoritism and secrecy introduce an element of uncertainty into legitimate business that greatly retards the development of our industries and

commerce.

9. That the secret cutting of rates and the sudden fluctuations that constantly take place are demoralizing to all business except that of a purely speculative, character, and frequently occasion great injustice and heavy losses.

10. That, in the absence of national and uniform legislation, the railroads are able by various devices to avoid their responsibility as carriers, especially on shipments over more than one road, or from one State to another, and that shippers find great difficulty in recovering damages for the loss of property or for injury thereto.

11. That railroads refuse to be bound by their own contracts, and arbitrarily collect large sums in the shape of overcharges in addition to the rates agreed upon at the time of shipment.

12. That railroads often refuse to recognize or be responsible for the acts of dishonest agents acting under their authority.

13. That the common law fails to afford a remedy for such grievances, and that in cases of dispute the shipper is compelled to submit to the decision of the railroad manager or pool commissioner, or run the risk of incurring further losses by greater discriminations.

14. That the differences in the classifications in use in various parts of the country, and sometimes for shipments over the same roads in different directions, are a fruitful source of misunderstandings, and are often made a means of extortion.

15. That a privileged class is created by the granting of passes, and the cost of the passenger service is largely increased by the extent of this abuse.

16. That the capitalization and bonded indebtedness of the roads largely exceed the actual cost of their construction or their present value, and that unreasonable rates are charged in the effort to pay dividends on watered stock and interest on bonds improperly issued.

17. That railroad corporations have improperly engaged in lines of business entirely distinct from that of transportation, and that undue advantages have been afforded to business enterprises in which railroad officials were interested. 18. That the management of the railroad business is extravagant and wasteful, and that a needless tax is imposed upon the shipping and traveling public by the unnecessary expenditure of large sums in the maintenance of a costly force of agents engaged in a reckless strife for competitive business.

Mr. William P. Shinn, in the Railway Review, before quoted, says: Until recently the railroad companies have been hostile to and have earnestly opposed all legislation upon the subject of regulation of interstate transportation by the Government, but it is now being recognized by the most enlightened railroad officials that such legislation is necessary, proper, and desirable. The rate wars which have of late years so devastated the finances of railroad companies are all inaugurated and carried on upon interstate traffic. They are detrimental alike to producer, transporter, and consumer; they introduce elements of chance in transactions of business which should rest entirely upon supply and demand; they encourage speculation in the staples of life, and are generally to be deplored.

Such is the power in the large corporations intrusted to one man, who may exercise it from personal cupidity or for private revenge as well as from laudable motives, in the interest of his corporation, that only the General Government, which can control all, can afford any remedy or relief.

Upon the other hand, producers and shippers find themselves shut out of their legitimate markets because some more favored shipper or locality is secretly given rates so much lower as to enable the latter to monopolize the traffic, while the former has only recourse to the courts, always slow and frequently uncertain.

In the interest of producer, transporter, and consumer, governmental regulation of interstate traffic is necessary and desirable.

This is a confession written by a friend of railroads. They have failed to regulate or govern in this field, which they invaded and held by usurpation or the failure of Congress to assert its control. But they say you must not regulate us by statute. The common law and State statutes declaratory of the common law have failed to give relief. Why is this so? Because under the existing system the burden of proof is upon the plaintiff to establish that the rate is unreasonable or the discrimination unjust, and the sources of information upon these issues are in the hands of and under the control of the defendant, locked up in his books and in the memory of his agents and his experts.

Hence the hesitation of a man solitary and alone to sue a great corporation and endure the "law's delay and insolence of office" in the vain effort to obtain redress for the countless wrongs included in the Senate's bill of indictment and the confession of friends.

And when a law is proposed like the Reagan bill, declaring what is right and prohibiting what is wrong; opening the courts of the venue of supposed wrongs; providing for access to books and papers of the railroad corporations remedying as far as may be those things which have rendered the common-law remedies up to this date ineffectual and useless, the railroads exhaust themselves with rage and exclamation and implore the Congress of the United States to enact for their benefit a special-class legislation in the shape of a commissioner to stand between them and justice, to legalize their pooling and their unjust discriminations and their iniquitous loading of their short-haul customers with the shortcomings of the long-haul, or the robbery of intermediate people to make good the loss of reckless competitive efforts to overreach or destroy rivals at competitive terminal points.

Where is the constitutional delicacy or chartered sacredness of these great corporations that they should not submit to the rule of the principles of the common law whether by the courts or by a commission? They have been the pets of States, the receivers of prodigal bounty! National and State aid have been given without stint. Bonds have been showered along their track like "leaves in Valombrosa." They have been armed with the State's right of eminent domain and her writ ad quod damnum to condemn private property to their use upon payment of just compensation. They were inaugurated with the shouts of a generous people, and sustained in their splendid success in developing and building up the country; but by reckless disregard of popular and legal rights and their obligations as common carriers they have come under the ban of a majority of the whole people of the country.

Like prodigals they have thrown away the good opinion of their benefactors, the people. The Senate committee says, page 191: "Universal complaint has been made to the committee as to the discriminations commonly practiced against places and as to the conspicuous discrepancies between what are usually termed 'local' rates and what are known as 'through' rates.'

Are the American people engaged in one universal conspiracy against the poor innocent and persecuted railroads? No, Mr. Speaker. What everybody that knows you says about you is true. But our friends of the minority are alarmed for the railroads, and deprecate the laying down of any "cast-iron" rules for the regulation of this enormous traffic, "unless it should be interfered with and its prosperity vitally affected." No man in America wishes to harm these roads. But as Rufus Choate long since said, the "railroads were made for the people, not the people for the railroads."

The gentlemen want india-rubber rules for these monopolies. Seeing that they must give up their coveted domination over every interest in their own selfish and ungrateful abuse of power, seeing that the control of interstate commerce in the interest of the people was to come, in some shape, they with wily stratagem "stooped to conquer." The cry that they will be ruined is the cry of a spoiled child or a selfish tyrant who sees his sway overcome and controlled by a power for the right.

It would be singular if in this new field of legislation any law could be passed that would be perfect. England has passed many hundred statutes in the abortive attempt to regulate these matters, and the greatest failure of all the thirty-three hundred has been her commission. Gentlemen laud the railroad commission in England, laud it in Bel

gium, laud it everywhere. Let us see what Mr. Hadley, in his work on Railroad Transportation, says on the subject:

We have seen what were the events which led to the passage of the regulation of railways act in 1873. The commission appointed under that act was to consist of three members; one of them a railroad man, one a lawyer. They received a salary of £3,000 each. They were to decide all questions arising under the act of 1854, and subsequent acts connected with it. They were further empowered to arbitrate between railroads in a variety of cases; to compel companies to make through rates which should conform to the intention of the act of 1854; to secure publicity of rates; to decide what constitutes a proper terminal charge, and some other less important matters. On questions of fact their decision was to be final; on questions of law it was to be subject to appeal. The railway commissioners themselves were to determine what were questions of fact and what were questions of law. Subsequent acts have made but slight changes in these powers.

The commission consisted of able men-Sir Frederick Peel, Mr. Price, formerly of the Midland Railway, and Mr. Macnamara; the last named died in 1877 and was succeeded by Mr. A. E. Miller. They went to work with energy, and in a spirit which promised to make the experiment a signal success. And it was at first supposed to be such a success. People judged by the reports of the commission itself; and they were the more prone to believe the reports because it was so desirable to find an easy solution of perplexing questions of railroad policy. Mr. Adams, writing in 1878, said, "The mere fact that the tribunal is there; that a machinery does exist for the prompt and final decision of that class of questions, puts an end to them. They no longer exist." Tha! represented the general public opinion on the subject at the time; it represents the general impression in America down to the present time.

In 1878, the very year when Mr. Adams wrote, the original term of the commission expired. People supposed that it would be made permanent. Instead of that the renewals have been for much shorter periods, leaving the commissioners a precarious tenure, and showing dissatisfaction somewhere.

A parliamentary investigation on railroad rates in 1881-'82 showed the grounds of dissatisfaction only too clearly. The testimony revealed a state of things almost unsuspected by the general public, and giving an entirely different explanation of the fact that the commissioners had so few cases to deal with. The substance is that the power of the commission satisfies nobody. It has power enough to annoy the railroads, and not power enough to help the public efficiently.

The railway commission was a court, not an executive body, but to all intents and purposes a court of law. And in establishing this new court, in addition to those already existing, Parliament had two ends in view: (1) to have a tribunal which would and could act when others would or could not. (2) To avoid the expense, delay, and vexation incident to litigation under the old system. Neither end was well fulfilled.

(1) The commission could not act, partly from want of jurisdiction, partly from want of executive power. Its jurisdiction did not cover by any means the whole ground. The provisions about terminals, arbitration, working agreements, &c., amounted to yery little. Its real power was under the act of 1854. It could under this act require companies to furnish "proper facilities," and it could prevent their giving "preferences." But it could not compel a company to comply with special acts or special provisions of its charter. This is a serious difficulty, because the question of proper facilities was closely connected with charter requirements, and the railroad could almost anywhere raise the point of want of jurisdiction.

Nor could it enforce its decrees. Passive resistance of the railroads and jealousy on the part of the old established courts combined to produce this effect. For instance, under the act of 1854, if the railways refused to comply with the decisions of the court of common pleas, they were liable to a fine of $1,000 for every day's delay. The London, Chatham and Dover Railway refused to comply with one of the commission's decisions, and claimed that they were not liable to any such fine, although all the powers of the court of common pleas, under the act of 1854, had been transferred to the railway commission by the act of 1873. The court of exchequer actually sustained the railroad; and it was not until 1878 that by a decision of the Queen's bench the railway commission really had the power to do anything if a company chose to disregard its orders.

The injunctions of the commission at best only affect the future; for any remedy for the past there must be a new complaint and trial before a regular court. And so it often happens that a railroad, after exhausting all its means of resistance, obeys the decision of the commission in reference to one particular station without taking any notice of it at other stations where the same principle is involved. Thus, in the case of the manure traffic of Aberdeen, after long litigation, the rate was decided to be illegal. The railroad then reduced its Aberdeen rates, but continued its old schedule of charges at other points on its route where there were not organized interests strong enough to make a fight.

On the face of the act of 1873 the decisions of the commission, as to what were questions of fact or questions of law, appeared to be final. But by writ of mandamus from a court of appeal the decision on this point could be at once taken out of the hands of the commission by compelling them "to state a case," which could then be made the subject of action in the higher court. So this important power was made of no effect.

(2) Complaints before the commission are not quite so slow or costly as they were before the courts, but they are bad enough to prevent most men from undertaking them. Sir Frederick Peel himself admits that the expense frightens people away from making complaints. But this is by no means the worst. The testimony before the Parliamentary committee of 1881-82 is full of matter to startle those who argue that because there are few complaints before the commission there are few men that have grievances. Men have good reason to think twice before they enter a complaint.

In the Aberdeen manure case, already referred to, the Aberdeen men, successful at every point, lost more money than they gained. Every important case is so persistently appealed that the original promptness or cheapness of railway commission practice counts for nothing. But the indirect results are yet worse. A complainant is a marked man, and the commission can not protect him against the vengeance of the railroads.

The railroads know that if they can not control the commission the chances are that it will be a greater failure here than in England. Upon the commissioners here in Washington will be focalized the headlights of all the railroads in the Union, with their command over the facts, and their expert knowledge, and without indulging in degrading suspicions of the venality of men, it would be next to impossible for such a tribunal not to be unduly influenced by the superior skill of fence and facility of massing facts upon them that the railroads would possess. But, if these conclusions are not warranted, certainly a commission would be onerated with the almost impossible task of taking care of and deciding justly all the disputes of a country whose area is many times that of Great Britain.

We have invested in railroads £1,190,000,000 to Great Britain's £770,000,000. How would it be possible for an individual or an obscure and remote town to come hundreds and thousands of miles to this city for redress. And then, when would the decrees of this commission ever be enforced? All the power, money, and skill of the combined railroad wealth would be exerted to delay and defeat any obnoxious finding.

The minority in their report oppose the prohibiting of drawbacks or rebates. They are not in favor of the provision against greater charge for the short haul than the long. They "differ from the majority as to pooling," believing its “absolute prohibition is unnecessary, " and extol the past experience in railway transportation which proves the pool to be the nearest (sic) and fairest device yet used to place shippers on an equality." They approach the subject of publicity of rates as if they trod on eggs, and whisper "that a carefully digested section might be incorporated in the law to meet this point," and after all suggest a commission. What is the use of anything from this minority report? It negatives the Senate report and turns it back and shuts its eyes on the facts there arrayed in support of the terrible charges contained in the indictment they prefer against railroad mismanagement, discriminations and oppression.

SHORT HAUL AND LONG HAUL.

It is said that the short and long haul clause of the bill will result in driving the railroads to devoting their attention to local rates and refuse through freights; that this will cut the great interests of the West off from markets, or increase the through-freight rates. Except

in rate wars it is a mistake to say that railroads carry through freights