establish a general rule of exceptions.

Why, Mr. Speaker, that is a terrible power over the transportation of this countryMr. 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 insignificant amount of damages, if you please, to be paid to that complainant-why, sir, whether that complainant acquiesced in this process or not, 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 conse

quences 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 his right of recovery in the circuit and district courts of the United States. Mr. ROWELL. Will the gentleman permit me a question? Mr. DIBBLE. Yes, sir.

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 question 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

the country is given to the common carrier, but I do not find that the same right is given to the complainant. What does the bill say? It says, in substance, that if the commission should happen to find adversely to the carrier-not that the carrier shall take a regular appeal, but it gives him practically the right of appeal, because all he has to do is to refuse to obey the finding of the commission-then, in case of his refusal to acquiesce in their decision, the commission may carry the question to the courts for adjudication, and where the amount involved is $2,000 to the Supreme Court of the United States. But I fail to find in the act any provision for carrying the question into the courts when the decision is adverse to the complainant.

Mr. WEAVER, of Iowa. There is none.

Mr. DIBBLE. The appeal, therefore, from the decisions of the commission to the regular tribunals of the country is given to the common carrier, and is not given to the party who complains. I say that such a provision in the conferring of judicial powers is a violation of all the principles that should govern appeals, and this appeal is very singular. The commission can find damages like a special jury, and can say: "This complainant has been injured so many dollars, and you must pay so much by way of reparation." But instead of going on and appealing regularly the common carrier simply sits down and does not do anything at all; he simply disregards the finding of the commission. Does he suffer for contumacy? Not at all. Does his course increase the damages? Not at all. The case is carried to a court, and that court sits as a court of equity, and a court of equity does not assess damages.

Mr. HEPBURN. Will the gentleman please point out the section of the bill that authorizes any appeal at all by any person. According to my understanding of the bill, it does not contemplate that any appeal will be taken.

Mr. DIBBLE. I will go over the ground again. I have already stated distinctly that there is no formal appeal granted, but I say there is a provision in favor of the common carrier which is equivalent to an appeal. I will explain my meaning again. The bill provides that in case the commission decide that the common carrier has to make reparation to such an amount, or to pay such and such damages to the claimant, they shall notify the common carrier of that decision. Then, if the decision be disregarded by the common carrier, the commission has the right to take it to court, and that right is given only in a case where the common carrier disobeys the decision. Therefore, the mode of appeal provided for the common carrier is to disobey the decision of the commission, and that will give him practically all the rights of an appeal in a form heretofore unknown to the jurisprudence of this or any other civilized country, so far as I am informed.

Mr. HEPBURN. If the gentleman will permit me, the bill simply provides that means of compelling obedience on the part of the common carrier. It is not a provision for an appeal, but it is the method which the commission must use in order to effectuate their decree.

Mr. DIBBLE. Well, Mr. Speaker, it is distinctly asserted in the act that the decision of the commission, when that mode of compelling obedience is adopted, stands exactly like the decision of an inferior court. The bill provides that on an appeal to a higher court the decision of the commission shall not be conclusive, but only prima facie. That opens the defense and gives practically an appeal and a review upon appeal to the common carrier in the higher court. If the report and the findings of the commission were to be conclusive in the higher

court, then I grant that the position of the gentleman from Iowa [Mr. HEPBURN] would be well taken; but when it is simply prima facie, that puts the decision of the commission exactly in the position of the judgment of an inferior court when an appeal is taken to a higher court, and gives the common carrier the right to put in a case against that prima facie case, and to do substantially all that he would have a right to do on a regular appeal.

Mr. CRISP. Will the gentleman permit me to interrupt him?
Mr. DIBBLE. With pleasure.

Mr. CRISP. I am not certain, Mr. Speaker, that I apprehend the gentleman's argument. The bill provides that when complaint is made to the commission they may investigate, and if they think proper order the carrier to desist from the practice complained of and to pay certain damages. The commission have not, I agree, the power to force the carrier to comply with their order. If the carrier fails to comply with the decision of the commission then the commission or the individual can go into court and enjoin him, pending the litigation, from the continuance of that practice; and when the case comes into court the report of the commission stands exactly as the report of an auditor or master in chancery would stand in a case in court; it is prima facie true on the facts. That is all.

Mr. DIBBLE. But the distinction I draw is this: Of course this is the exercise of judicial power by the commission. Suppose the commission, instead of finding adversely to the carrier, should find adversely to the complainant; there is no way for him to get his case into court. But there is a clear way-although it is a roundabout way it is a clear and plain way-by which the common carrier may get the adjudication of a court. The complainant, however, by going to the commission, has taken his election and can not go to the court; he has no way to get there.

Mr. CRISP. The gentleman will allow me to say-of course I do not wish to inturrupt him-that is exactly what the bill contemplates, that the party who thinks he is injured shall have his election to go in the first place to the courts and set up his case like any one else or to go before the commission. If he goes before the commission he is bound by their judgment, and ought he not to be?

Mr. DIBBLE. I do not think he ought to be bound by the judgment of the commission unless the other side is also to be bound by the judgment of that commission. I do not think there is any fair judicial tribunal that does not give the same right of appeal to the plaintiff who has elected to go there that it gives to the defendant who makes his answer. I can not conceive or admit that it is fair that the complainant, in case of a judgment adverse to him by the commission, should not have the same right as the common carrier to get the judgment of a court upon it, or to appeal to the Supreme Court of the United States. Yet under this bill one party has a practical way to go to the Supreme Court of the United States, and the other has not.

But, Mr. Speaker, as time is passing, there are one or two other points in this bill

Mr. HEPBURN. Before the gentleman passes from this branch of the subject, I desire, if it will not interrupt him

Mr. DIBBLE. Not at all.

Mr. HEPBURN. I wish to call his attention to line 13, page 29 of this bill, where he will find the following language:

And nothing in this act contained shall in any way abridge or alter the remedies now existing at common law, or by statute.

Now, if an individual would have the right under the existing law to go to the courts, would he not still have that right under this bill, although he might have elected first to go before the commission? In my judgment, this provision is clear and explicit.

Mr. DIBBLE. There is an express clause in the bill to the contrary. It is to be found in section 9:

SEC. 9. That any person or persons claiming to be damaged by any common carrier subject to the provisions of this act may either make complaint to the commission as hereinafter provided for, or may bring suit in his or their own behalf for the recovery of the damages for which such common carrier may be liable under the provisions of this act, in any district or circuit court of the United States of competent jurisdiction; but such person or persons shall not have the right to pursue both of said remedies, and must in each case elect which one of the two methods of procedure herein provided for he or they will adopt.

Mr. ROWELL. Does not that clause, as I have already suggested, provide that only such proceedings as are instituted by the commission upon the request of the party complaining bar him—not proceedings instituted by the commissioners on their own motion?

Mr. DIBBLE. I concede the position the gentleman takes. I have never maintained the contrary. The distinction is this: in a case where the commission, of its own motion, takes the initiative, makes a determination and mulcts a common carrier in an insignificant sum named as the reparation in a particular case, that does not bar the complainant of his election to go into court; but when he gets into court that is pleaded against him as res adjudicata. Therefore he is estopped, because the other section provides that he can not enforce any further liability or penalty, including both the civil and the criminal branches of the subject, if there is an adjudication against the common carrier, however small, and the carrier complies with the terms of that adjudication. That is a provision of this bill. If I had time I would like to read it again to satisfy the gentleman; but he can read it for himself. When the commission commences an investigation of its own motion, it of course must summon both parties interested. This does not bar a complainant from going into court, but the relief is barred if the common carrier has complied with the decision of the commission as to reparation, made in a proceeding on the motion of the commission, begun prior to his suit. There is another part of this act, Mr. Speaker, which I approach with some hesitation, as there is in it a good deal of that ambiguity which is one of the objections to this act. I refer to the provisions with reference to the long and the short haul. Now, I agree with the distinguished gentleman from Georgia, who so ably advocated the adoption of this report two days ago, in his definition of the word "line" in the fourth section of this act. I agree with him where he says in relation to that

I do not understand that the word "line" as used in that section means anything different from road as defined in the bill:

"The term 'railroad' as used in this act shall include all bridges and ferries used or operated in connection with any railroad, and also all the road in use by any corporation operating a railroad, whether owned or operated under a contract, agreement, or lease."

We agree, then, that the word "line" is synonymous with the word "railroad;" and if that be the case, I would call the attention of the House to the fact that some of the instances which have been cited in this debate would not find in this act anything applicable to them. An instance was cited of 76 cents a hundred for freight from New York to New Orleans, and $1 a hundred on freight from New York to Atlanta. Why, Mr. Speaker, if the word "line means railroad," neither the

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route from New York to New Orleans nor the route from New York to Atlanta is embraced within the terms of the bill, because there is no provision in the fourth section for a long and a short haul over connecting lines, but the language refers only to transportation over the same line.

If that line means one railroad operating under one control and one management there is nothing in that section which forbids discrimination on a through route. Let us take the language of the section, and let us compare it with the language of the preceding section. In section 3 of the bill we have the word "line" again where it speaks of the common carriers giving equal facilities for interchange of traffic "between their respective lines"-"and delivering passengers and property to and from their several lines and those connecting therewith"-"and shall not discriminate in their rates and charges between such connecting lines." That is through travel. There is nothing like that in the fourth section.

And instead of providing it shall be unlawful for a common carrier to receive greater compensation for a shorter than for a longer distance over the same line or over connecting lines, the words "connecting lines" are left out, and, as the gentleman from Georgia [Mr. CRISP] says, that simply means over the same railroad. Then the question comes down to this:

Suppose a complaint is made against a single common carrier. And by that, Mr. Speaker, I desire to explain I accept the term railroad to mean the railroad itself and all the lines controlled by it, whether leased or otherwise. For instance, I would call the Piedmont AirLine, controlling half a dozen connecting roads, a single railroad for the purpose of this act, because they are all under one management; but I would not call the Pennsylvania Railroad and the Piedmont AirLine Railroad as one in this act, because, while they connect and have an agreement, under the third section, for the interchange of passengers and traffic, and have an agreement for joint tariff, they are not actually operated under the same management. They would constitute two railroads, or lines of railroad, and are not the same line.

The question arising here may be put in this way. It is true, nobody can complain except against a single common carrier which has charged for passage over the whole of its line less than the charge on its local tariff for intermediate points. Then comes the inquiry as to the meaning of these words: "Substantially similar circumstances and conditions."

It appears to me, Mr. Speaker, in this very bill the joint tariff for connecting lines is recognized as being different, and not "substantially similar" to the "circumstances" of the local tariff. It provides every road shall post its local tariff, or keep it in an accessible place, so the public can see it. It also provides that it shall be filed with the commission. It is also provided that it shall exhibit its local rates from every point of departure to every point of destination upon its line of road.

What is the provision as to joint tariffs? It is that the joint tariffs need not be published; they are to be filed with the commission, and we then leave it to the discretion of the commission whether the common carriers shall publish one item, or no item, in those joint tariffs. I call the attention of the House to that section, showing a marked distinction made between through travel with connecting lines transferring freight and passengers under a joint tariff and the case of a single line as specified in section 4.