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Mr. CUTCHEON. I ask the gentleman to incorporate in his prop. osition a provision that the debate at the evening session be had under the five-minute rule.
Several MEMBERS. Oh, no.
The SPEAKER. Is there objection to the proposition just stated by the Chair for a recess from balf past 5 o'clock until half past 7? The Chair bears none, and it is so ordered.
Mr. ANDERSON, of Kansas. I now request that debate at the evening session be had under the five-minute rule. The SPEAKER. That proposition has been objected to. Mr. ANDERSON, of Kansas. Is it in order to make that motion? The SPEAKER. The gentleman can ask unanimous consent.
Mr. ANDERSON, of Kansas, Then I ask unanimous consent that the debate this evening be confined to ten-minute speeches.
Several MEMBERS. That is right.
The SPEAKER. The gentleman from Kansas asks unanimous consent that in the discussion this evening each speaker be limited to ten minutes. Is there objection? The Chair hears none, and it is so ordered.
LEAVE TO PRINT.
Mr. CRISP. I ask unanimous consent that any gentleman desiring to print speeches in the RECORD on the pending bill may have the privilege of doing so.
The SPEAKER. The gentleman from Georgia asks unanimous consent that any gentleman desiring to print remarks on this subject, or, as the Chair would suggest, to extend remarks in the RECORD
Mr. CRISP. Yes, sir; or to extend remarks.
The SPEAKER. May have leave to do so. Is there objection? The Chair hears none, and leave is granted. The gentleman from Tennessee [Mr. CALDWELL] is now entitled to the floor.
INTERSTATE COMMERCE. Mr. CALDWELL. Mr. Speaker, I do not propose to consume more than a few minutes in submitting what I have to say on this report. The fourth section of this bill, or what is known as the long and short haul provision of the Reagan bill, was objected to, as I thought, with a great deal of force because it provided an iron rule which, by reason of its universality, might work hardship in individual instances. It is certainly true that cases were supposed, and cases may readily be imagined, in which, under the clause of the Reagan bill in reference to the long and short haul, great disadvantage and injury might be worked to the railroad transportation business.
A similar clause in the Cullom bill provided for what I considered the lodgment of a dangerous power of suspension in the hands of the railroad commission provided for in that bill. In other words, I understood under that clause in the Cullom bill the commission had the power to exempt a road from the operation of the long and short haul clause, and hence could break up a road not enjoying the favor of such exemption, and that power was too dangerous to be lodged in any tribunal or any set of men, commissioners or otherwise. The bill as reported by the conference contains both propositions. It contains not only the Reagan proposition of long and short haul, but also the proposition for the suspension of the operations of that section in particular instances only. The distinction is an obrious one from the power given in the Cullom bill to provide general rules for suspensions, and I think the original proposition has been bettered by the one now before the House.
There must be some way to give an equitable administration of the long and short haul clause, if there is anything at all in the long and labored arguments which have been made against it, and the prophesies of evil which are to follow its enactment. This proviso in the fourth section of the bill is to apply to the operation of this law that equitable jurisdiction which has been found to work well in every other department of law. It is to supply that wherein the law by reason of its universality is deficient, and which may work hardship in particular cases.
It would be an astonishing thing if this bill, the result of full and careful consideration on the part of both Houses, should be a perfect measure. The number of failures which have been made in England over this question are a part of the history of this subject. If this law is defective, like every other law, it will reveal its defects on being pat into actual practice. In other words, every statute which is upon your books has had to go through the test of practical operation and the test of judicial interpretation and decision. If this law reveals patent and manifest impracticabilities, it will be an easy matter to remedy them when they are pointed out by experience. No gentleman knows what is going to happen about anything.
There is no prophet, or son of a prophet, on this floor or anywhere else. We have here the germ of legislation in a new field in which Congress puts its foot for the first time, and from that germ experience will develop the full growth which will govern all these great questions of transportation by railroad. There is but one way to get at it and that is to start the practical operation of the great principles of the common law. The question narrows itself down at last to this: Shall the principles of the common law governing common carriers be administered in the courts of this country or by commission ? My preference would be to open the courts of the vicinage and leave the matter to local decision. But I am willing to yield that proposition and have the common carriers of the country governed by a commission, rather than not have them governed at all.
The principal objection I had to the commission bill having been removed, I will vote for this bill; not as a perfect code, for perfect codes are not now handed down from heaven on Mount Sinai or Pike's Peak, as the gentleman from Iowa (Mr. WEAVER] seemed to demand. The law is no longer a revelation, but it is a growth. Every law has to have that growth before it is perfected. It has at last to be decided on by the courts, and tested by experience.
I believe we are starting in the right direction; and I do not believe the long catalogue of woes and calamities that chambers of commerce, which have never read the bill, and which have been stirred up by these lines of transportation and induced to put on the mantle of prophesyI say I do not believe the enactment of this law will be followed by such calamities and that everybody is going to be ruined. I believe there is no chartered sacredness about these great interests. I admit they are great. I admit the railroad interests of this country have been great factors in its development, but I do not believe there is any constitutional delicacy or weakness in them which will prevent them from flourishing under the principles of the common law, like every other enterprise charged with a public use.
I yield now for forty-five minutes to the gentleman from South Carolina (Mr. DIBBLE).
Mr. DIBBLE. Mr. Speaker, I thank the gentleman from Tennessee for his courtesy in yielding time to me.
Before entering upon the discussion of the features of this bill it is well to consider the parliamentary position in which the House finds itself at present in relation to it. The pending motion is for the adoption of this conference report. There has been a Senate bill (the Cullom bill), there has been a House biļl (the Reagan bill), and now comes, as a substitute for both, a bill presented for the first time to this House without the privilege of amendment, to be taken as it is or rejected as it is; and the first question is, what is the effect of a failure to adopt the conference report? Does it kill the bill? Not at all.
It opens the bill.simply to a further conference between the two Houses. In that conference amendments which may be suggested, which have been already suggested in the course of this debate, may be incorporated; and there is no reason to doubt that, on such further conference, this bill would come back in ample time for the action of both Houses, improved upon in its present terms, by reason of the criticisms which it has received in the course of the debate, both in the Senate and in the House.
But, Mr. Speaker, supposing the result should be to defeat the bill; that the six weeks remaining of this session are not sufficient for conferees already familiar with the subject to get together and agree upon a proposition to present, and the bill is thereby defeated, I propose to advance some views in connection with my study of the bill which lead me to say that it would be better than the enactment of this bill into a law in its present shape.
The effect of enacting the bill as it is will be to throw into the courts for judicial determination and construction points which the two Houses can and should settle now. That difference of opinion, which is attendant (and necessarily so) upon this bill in its present form, will bring its ambiguities into litigation in the circuit courts and in the Supreme Court, and it will be five years before the highest judicial interpretation is given to the points which are at issue. The inevitable result, it appears to me, will be that the passage of this bill will set the subject at rest on the basis of its enactment and postpone the remedies which are required to correct the wrongs under which the people suffer to-day. There will be a truce of legislation, as it were, while the matter is being fought in the courts, and it would be infinitely better, in view of the ambiguities of the bill and the uncertainty of its meaning, that it should be postponed to another Congress rather than be passed and throw the subject into the courts on such a statute as this.
I do not believe, sir, that it is the part of Congress to agree on words while not agreeing to the sense of those words. What is the meaning of judicial interpretation of statutes? It is the determination of the legislative intention. It arises only where the legislative body, through inadvertence in the use of words, fails to declare its true intention; but it is a remarkable position for the legislative branch of the Government to assume, when it voluntarily uses words interpreted by one in one sense, and by another in another, and then votes on these words; for they are really, when they come to vote in such cases, voting on distinct propositions, and there is no consensus of legislative intention.
When one member says, “I will vote for that phraseology, because it means so and so," and another says, “I will vote for it because it means exactly the reverse, I say in that case there is not that consensus of legislative intention which marks the proper enactment of law. Let us put what we mean in plain and unambiguous terms. We do not have courts constituted to arbitrate legislative differences, and to take the chances of their arbitrament, and I have only to refer to this debate to show that there are serious differences not only between the members of the two Houses but between the members of each House as to the meaning of certain words used in the bill.
It appears to me that the gravest objection to this bill is contained in the powers conferred upon the commission. I have no objection to a commission exercising proper functions, but as I read this bill, it seems to me that Congress confers upon that commission legislative powers. Now, under the Constitution the three departments of the Government are to be kept distinct in their operations in their agencies.
Under the Constitution all legislative powers shall be vested in the Congress.
The fourth section of this act, in the long and short haul clause, provides certain legislation on that subject, but is followed by this proviso:
Provided, howerer, That upon application to the commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this
Now, Mr. Speaker, that is conferring legislative power. It is the power of suspending the operation of the statute, not in certain cases specified and laid down by Congress, but in the discretion of the commission itself. I grant that Congress might pass a statute general in its terms, and provide exceptions, and say that when those cases arise the executive department may proclaim a suspension. But there is no way to put that suspension of the statute in the discretion of another body without delegating to that body legislative power which the people have delegated to us; and our delegated power can not be thus delegated, and not only is it legislative power, but it is special legislative power. The commission has no power under that fourth section to establish a general principle, a general rule of exception applicable to all carriers alike.
That section first gives to the commission the power to exempt a certain common carrier in a special case-just one case; and then it goes on and says it can exempt that common carrier (not a class of common carriers, but that single common carrier) in a certain class of cases. It gives to that commission the power to say to one railroad, " We will release you from the provisions of the long and short haul clause," and it gives them the power to say to another railroad, “ We will not release you." But it nowhere confers the power on the commission to say,
“We will exempt this railroad and all other railroads in the same class from the operation of the long and short haul clause." The language is explicit:
Provided, however, That upon application to the commission appointed under the provisions of this act, such common carrier may, in special cases, after investigation by the commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers or property; and the commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of this act.
Note that the words are “such designated common carrier." The commission can only act upon particular common carriers, and can not establish a general rule of exceptions. Why, Mr. Speaker, that is a terrible power over the transportation of this country
Mr. WEAVER, of Iowa. Favoritism, too.
Mr. DIBBLE. Where competition is so active, where influences so powerful can be brought to bear upon five men, where representations so strong will be made; why, sir, it has the power to make fish of one and flesh of another, and the only way in which they can act tends to favoritism and partiality. I object to it on that ground; and to my mind, Mr. Speaker, that seems to be a fatal obstacle to the passage of this bill in its present form.
Let us look further into the question of the power of this commission. While in that particular it is endowed with legislative faculties, in another it appears to have judicial functions bestowed upon it. Let us cite a case. Take section 15. It appears by the terms of this act that this commission acts judicially in three ways, either on the complaint of a party who claims to have been.injured, or at the request of a State railroad commission, or of its own motion.
Now, suppose, Mr. Speaker, that a railroad shall have committed an act of injustice against some citizen, and that citizen desires to exercise the option, which this act purports to give him, of going into the courts of the country rather than to go before the commission, why it is in the power of that commission, of its own motion, to initiate proceedings and have an investigation; and if it should so happen that the commission investigating that grievance should find against the railroad company, and should impose by way of reparation some insignificant penalty-some ivsignificant amount of damages, if you please, to be paid to that complainant-why, sir, whether that complainant acquiesced in this process or pot, under this bill the payment of those insignificant damages, the making of that insignificant reparation, relieves that common carrier forever from the criminal and civil consequences of that act. And if the commission happens to get ahead of the complainant in initiating the investigation before he files his complaint in the court (and perhaps in other cases, but certainly in that), the action of the commission nominally against the carrier, but really in his favor, would be cited to make it res adjudicata, and bar bis right of recorery in the circuit and district courts of the United States.
Mr. RUWELL. Will the gentleman permit me a question ?
Mr. ROWELL. If the proceeding is instituted by the commission, and not at the request of the party, is he by this bill barred?
Mr. DIBBLE. I will read the words of the bill. I think he is explicitly barred of recovery, and I will show that very plainly. It says that " in any case in which an investigation shall be made;" any case; and just before that it provides the three ways in which it can be made. First, by the complaint of the party; secondly, by the request of the railroad commission of a State; thirdly, it may institute any inquiry in its own motion in the same manner and to the same effect as if complaint had been made. Now, if it is to have the same effect as if complaint had been made, I think that answers the ques. tion of the gentleman from Illinois.
Then there is another injustice which appears amid the mass of language composing this bill.
It is this, Mr. Speaker: While an option is apparently given to the complainant to go to the courts or to go to the commission, if he ever gets before the commission there is no right of review or appeal for him. By ingenious phraseology the right of appeal to the courts of