As a general proposition, common carriers should not be allowed to do so, and in hundreds and thousands of instances great injustice is done to localities by such a mode of unjust discrimination, and the committee have attempted to provide against such discrimination by prohibiting it except in such cases as a wise commission may determine that the interests of the commerce of the country and common fairness to the common carrier require that exceptions shall be made.

The interest of both the producer and consumer of this country require that the food and fuel, which make up half of the property transported, shall be brought as nearly together as possible, so that the producer shall be able to produce and live and that the consumer shall be able to buy and eat and live. Distance must be as nearly as possible overcome, so that the grain and produce of the far West and North may be put down at as cheap rates as may be by the side of the manufacturer, the consumer, in the East.

So, Mr. President, looking at the question in its effect upon the business and prosperity of the whole country, the committee did not and do not now believe that such a provision of law as would prohibit the greater charge for the shorter distance in all cases would be a wise one; hence the qualification in the bill.

Those who favor an absolute short-haul provision assert that the provision of the bill will amount to nothing; while those against any law touching the short-haul question assert that it is too strong, and should be further modified or go out of the bill. As it stands it is largely in the discretion of the commission, and as the whole scheme of national control is new in this country, in my judgment it is wisest to go no further than the committee proposes on so doubtful a point until we see the operation of the law, if it shall become one, and get a report from the commission on the question, if one shall be established.

SECTION 5.

The purpose of section 5 is to secure the greatest possible publicity of rates and charges. As I have said, investigation and experience show that this is the best remedy for the evils of unjust discrimination. But while this is generally believed to be the proper remedy, a practical difficulty is met with in attempting to apply it.

So far as any one railroad is concerned, or any one system of roads under the same management, there ought to be little difficulty. Even if there should be 10,000 miles of road under one management, that corporation could post up or otherwise publish at each station on its line a complete schedule of its rates on all classes of freights to the hundreds of other stations on its roads. To do this it might perhaps become necessary to cover the walls of its stations with schedules of rates, or to print a very bulky volume to contain them, but it could certainly be done.

But when Congress orders this corporation to also publish rates from the hundreds of stations upon its lines to the thousands and thousands of stations upon all the other lines throughout the whole United States to which it may at some time or other be called upon to accept shipments, the practical difficulty of enforcing a sweeping requirement that all interstate rates shall be posted or otherwise published must be apparent. A sweeping requirement of this character would interfere with the freedom of commercial intercourse and work a great hardship to the public, because it would be in effect a prohibition of shipments to points to which rates had not been previously published. The only way in which the railroads could comply with such a requirement would be by publishing rates to the great competitive centers and by refusing to make through rates or give through bills of lading to the less im

portant points throughout the country. This they would be free to do, because they are not compelled to act as forwarders, and it is only because it is to their interest to promote the convenience of the public by doing so that they issue through bills of lading and assume the responsibility of acting as forwarding agents. No matter how strong the statute might be made or how severe the penalties affixed, I do not see how an absolute requirement of that character could possibly be fully enforced. It is not a question as to the power of Congress to impose such a requirement upon the corporations, but simply the practical question of whether it is possible for the common carriers to comply with it if they were ready and willing to do so.

But this is not the only difficulty encountered when we attempt to apply such a provision to the more than 125,000 miles of railroad in the United States. No one road can make or publish rates over any other except by the consent of the latter. How, then, are the through rates under which perhaps half of the traffic of the country is transported to be published? They are now and must continue to be established by agreement between the roads interested. It would therefore be obviously unfair to hold one carrier responsible for the violation by another carrier of an agreement as to through rates.

But as a matter of fact it does not seem to be necessary to have every interstate rate actually included in the publication proposed in order to secure practical publicity. If each railroad should simply publish rates between the points on its lines and the principal places in the United States, the provisions of section 3, prohibiting discriminations against any locality and particularly those of section 4 as to the short haul, would, it seems to me, fix the rates at all other shipping points and would substantially protect the people at the interior and less important points. The provisions of this section recognize these practical difficulties in the way of securing the absolute publication of all interstate rates and only propose to require what it is possible to enforce. The section requires every carrier subject to the provisions of the act to file with the commission copies of its tariffs of rates and fares, and charges of every kind, and from time to time all changes in the same which are to be made public in such manner as the commission may direct and so far as in its judgment be deemed practicable.

The theory of these provisions is that the commision will require such rates to be made public as it is evident can be published without difficulty, and will then add by degrees to those to be published until as many as possible are included. The plan of doing the railroad business upon a system of established and published rates is entirely new in this country, and will revolutionize existing methods of business. It therefore seems to be the part of wisdom and prudence to put this new and untried system into operation gradually, and to feel our way along cautiously rather than to plunge into legislation of which we can not fully foresee the results.

Under the provisions of the section as it stands it is made unlawful to charge any person more or less than the published rate, and the carriers are required to adhere to such published rates until they have been changed in the manner specified. The published rates can not be increased except after ten days' public notice. They may be reduced without previous public notice, but immediate notice of such reductions must be given in such manner as the commission may direct. Regarding the publicity of rates as essential to the success of any plan of regulation and as of the first importance, the committee proposed a more radical and severe penalty for the violation of this section than of any other. The last paragraph, beginning in line 47, page 7, provides that

a failure or refusal to file or publish its tariff shall subject a carrier to a writ of mandamus to compel compliance with the requirements of this section, and that failure to comply with the mandamus shall be punishable as for contempt. And if that should not answer to enforce compliance with the law, the courts are also authorized to restrain railroads from engaging in interstate business until they publish their rates as required.

SECTION 6.

Section 6 declares it to be unlawful for any common carrier to enter into any combination or agreement to prevent the carriage of freights from being continuous from the place of shipment to the place of destination, and provides that no breaking of buik, stoppage, or interruption shall prevent the carriage of freights from being treated as continuous, unless made for some necessary purpose and not with the intention of evading the provisions of the act. The purpose of this section is to prevent evasions of the act by such devices as rebilling or transshipping at State lines, for instance, so as to make it appear that an interstate shipment was a State shipment and not affected by Congressional legislation.

SECTION 7.

Section 7 provides that any common carrier who shall willfully do or permit to be done any of the acts or things declared in the preceding sections to be unlawful shall be deemed guilty of a misdemeanor, and shall, upon conviction therof, be fined not more than $5,000. The purpose is to make the person responsible for the violation of the law subject to the penalty, and it is therefore provided that if the carrier is a corporation the officer, agent, or person guilty of any violation of the act shall be personally liable for the fine imposed.

SECTION 8.

Section 8 creates a commisssion of five members, who are to be appointed by the President and confirmed by the Senate, and to serve for terms of six years. It is provided that not more than three of the commissioners shall be selected from the same political party, and that they shall not own railroad stock or bonds or engage in any other employ

ment.

SECTION 9.

It

Section 9 prescribes the general jurisdiction of the commission. is given authority to inquire into the management of the business of all railroads and other common carriers subject to the provisions of the act, and to keep itself informed as to the manner and method in which the same is conducted. To this end the commission is given the right to obtain from such carriers all the information necessary to enable it to perform its duties, and may also invoke the aid of the courts in requiring the attendance of witnesses and the production of books and papers. Provision is made for the punishment by the courts of a common carrier or any person connnected therewith who shall refuse to obey a subpoena issued by the commission.

Sections 10, 11, 12, and 13 regulate the method of procedure by the commission in the settlement and investigation of differences arising between shippers and carriers. The experience of the State commissions has shown that a very large proportion of the complaints ordinarily made can be settled without special investigation or delay, and as a matter of fact by far the greater portion of them are promptly and satisfactorily adjusted when the commission calls the attention of the railroad officials to them. It is often difficult for the ordinary shipper to reach the head of a great railroad corporation with his grievances, but the existence of a commission gives the humblest shipper an as

surance that his complaint will reach headquarters. It is easy to understand how in these great corporations the details of management must be left largely to subordinates, who may exceed their authority and perhaps successfully conceal from their official chiefs all knowledge of complaints that are made.

There are numerous ways in which differences may arise between shipper and carrier through mistakes or misunderstandings which are easily adjusted when the facts are understood. The method of procedure marked out for the commission is intended to provide for the speedy adjustment of all such complaints as I have indicated, as well as those based upon a state of facts which the carrier will not attempt to excuse or defend. In this way it is believed that a considerable share of the complaints submitted can be disposed of to the complete satisfaction of the complainants without unduly taxing the time of the commission, which would be blockaded with business if an investigation was required in every case.

SECTION 10.

I desire to call special attention to this section of the bill. It provides that any person, firm, corporation, or association, any mercantile, agricultural, or manufacturing society, any body politic or municipal organization, or any State railroad commission may complain in writing to the commission of anything done or omitted to be done by any common carrier in violation of law, or that the commission may institute investigations on its own motion. When complaint is made the commission is required to forward a statement of the charges to the carrier and to call upon the latter to adjust the matter or make answer within a specified time. If the complaint should be satisfied, that is the end of the matter. If it can not be thus disposed of, it becomes the duty of the commission to investigate the matters complained of in such manner and by such means as it shall deem proper. Such investigations may be conducted in any part of the United States by one or more of the commissioners, but a majority of the commission is required for the final determination of a case.

SECTION 11.

The next step in the proceedings is covered by the provisions of section 11, which requires the commission to make a report in writing whenever an investigation is made, which report shall include the findings of fact upon which the conclusions of the commission are based and its recommendations as to what reparation, if any, should be made by the carrier to the parties found to have been aggrieved. A copy of such report shall be furnished to the complainant and the carrier.

I desire to say that in the investigation we have made the most prominent and, so far as appearances have indicated in the States, the most influential commissions that we had any conversation with, and who were heard before us, are simply in the States to-day asking that provisions of law be passed by their States, prominently, for instance, the commission in the State of New York, which is a very able commission and which seems to be substantially satisfactory to the people of that State-are merely appealing to their Legislature to-day, I think, for that much more power than they have already under the law, which so far is simply the right to investigate and report, so that, whatever they find to be the facts, those findings of fact shall be made prima facie evidence in courts of law wherever the testimony may be heard. I regard that provision of this bill as a very important one and of great service to the people, because substantially the commission makes the case on which the party goes into court, if the case has to go there and is not settled by the action of the commission.

One of the most important features of the bill is the provision in this section that the findings of the commission in an investigation shall be taken in all judicial proceedings as prima facie evidence as to each and every fact found. The purpose and necessity of this change in the ordinary rules of evidence can perhaps be best illustrated by reading a few paragraphs from the report of the committee. In considering this branch of the subject the committee say:

The simple fact that the shipper is now obliged to submit to the adjudication of his complaint by the other party in interest, the party by whom he supposes himself to have been aggrieved, is in itself sufficient to demonstrate the necessity of such legislation as will secure to the shipper that impartial hearing of his complaints to which he is entitled by all the recognized principles of justice and equity.

Evidence is not wanting to prove that the remedy at common law is impracticable and of little advantage to the ordinary shipper. It has been found so by the people of the States in dealing with their local traffic, and, as has been shown, their recognition of the fact has been authoritatively recorded in nearly every State in the Union by statutory enactments, and in many of them by the estab lishment of commissions, in the effort to provide for the shipper that prompt and effective remedy which it has been found by experience that recourse to the common law has failed to afford. The reasons for this failure apply with even greater force to the more complicated transactions of interstate commerce than to State traffic, because the former involve more perplexing questions and are affected by a greater diversity of varying conditions. The legislation of the States, the reports of the State commissions, the records of the courts, the evidence of shippers, and, in short, the whole current of testimony, is to the same effect; and the fact stated is also admitted by some of the highest railroad authorities. Mr. Fink says:

"In many cases where small amounts are involved, which do not justify legal proceedings against the company, the aggrieved parties are prevented from prosecuting their claims. Ordinary courts are not properly constituted for that purpose, and the time required for the adjudication of claims is so long and the expenses so great as to defeat the very object for which proceedings are instituted." (Testimony, page 107.)

Leaving out of consideration the natural disinclination of the average shipper to engage in litigation with a corporation which may have the power to determine his success or failure in business, and to enter the lists against an adversary with ample resources and the best legal talent at its command and able to wear but an opponent by the tedious delays of the law, it is plain that the shipper is still at a great disadvantage in seeking redress for grievances under the common law, which places upon the complainant the burden of proof and requires him to affirmatively establish the unreasonableness of a given rate or the fact of an alleged discrimination. What such an undertaking practically involves is indicated by the following extract from the statement of Mr. Kernan, the chairman of the New York commission, which sums up the whole case : "Assuredly there have been and do exist unreasonable rates and unjust discriminations. This much will be admitted by all; it will not be denied even by any carrier. Why, then, have not the courts enjoined the continuance of the wrongs and enforced the payment of damages? Why, again, is it that substantially no such suits ever have been brought and that so few decisions in this country exist? It is not because of defects in the law or in the constitution of the courts; but it is because the subject is one which neither client nor lawyer, judge nor jury, can unravel or deal with intelligently within the compass of an ordinary trial and with such knowledge of the matter as men generally well educated possess. Let a man take the testimony in five volumes before the Hepburn committee; read one hundred pages of the clear and able statements of Mr. Blanchard, for instance; con over the facts and figures he gives, and then let him try to reach a conclusion upon the question under discussion. Some conception will thus be obtained of what a lawsuit is which involves the reasonableness of rates, or the existence of an unjust discrimination, or a local rate as compared with a through rate. As the onus is upon the complainant, add to his difficulties the fact that his adversary has nearly all the evidence in his possession, locked up in books and in the memory and intelligence of experts who have made the subject their study. The expense involved, the uncertainty to be faced, and the difficulties to be overcome in an ordinary suit at law have made that remedy obsolete and useless."

SECTION 12.

The twelfth section points out the course to be taken subsequent to an investigation. If it be found that the law has been violated or that any injury has been sustained by the complainant or other parties aggrieved, it becomes the duty of the commission to notify the carrier to desist from the further violation of the law or to make reparation for