portals wide for that discrimination among places which was prohibited under section IV.

Power of the Commission over Rates. In the Annual Report for 18971 the Commission stated that it had exercised the power to prescribe reasonable and just rates for a period of ten years, beginning with an order made in the second month after its organization. "Of the 135 formal orders made in the suits actually heard from its institution down to the present time, 68 have prescribed a change in rate for the future." 2 "We have now before us 38 cases in which the main question is one of reduction of the freight rate."3 This represents the practice of the Commission during the first ten years of its existence. It is a fact of common knowledge that the notions which existed in Congress in 1887 on the subject of interstate commerce were vague and imperfect, and that this feature in the situation naturally led to the loose and imperfect character of the act. The practice of the Commission of prescribing rates, under certain conditions, was fostered by the necessity of the situations which had to be met; and the reversal of this policy by decisions of the Supreme Court placed the administration of the Interstate Commerce Act on an entirely different basis.

During the fifth year of its existence the Commission asserted that it was not restricted "to finding that an existing rate is unreasonable and 3 Annual Report (1897), p. 22. 45.97.

1 Annual Report (1897), p. 11. 2 Annual Report (1897), p. 16.

forbidding its continuance, but has the further authority to ascertain, order, and enforce a rate that is reasonable. The power to determine and declare what is a maximum reasonable rate also results from those provisions of the act which require the Commission to determine what reparation, if any, should be made by carriers to parties injured by their violations of the law, and in cases of unreasonable rates the measure of reparation due to such a party is the difference between the rate actually charged and the reasonable rate which should have been charged." This was reaffirmed in a subsequent decision.1 But the Commission has never claimed the power to prescribe a rate in the first instance. "Its power in respect to rates is to determine whether those which the road impose are, for any reason, in conflict with the statute." 2 “We sit for the correction of what is unreasonable and unjust in those tariffs." 3

The first prominent case leading to the present interpretation of the law arose on the complaint of a Cincinnati firm against a railway for charging more per hundred pounds of freight to Social Circle than to Augusta, 119 miles farther on the same line; and, secondly, for charging rates to Social Circle and to Atlanta, which were in themselves excessive and undue. After a full hearing and investigation the Commission, among other things, issued an order requiring the railway company to cease and desist from charging more than a certain 8 7. 191. 44. 744.

1 5. 122.

2

I. 152.

amount on such freight from Cincinnati to Atlanta. The Circuit Court, to which an appeal was taken, refused to enforce this order, and the case finally reached the Supreme Court.1 Discussing that part of the case which relates to the prescription of rates, the court said: "We do not find any provision of the act that expressly, or by necessary implication, confers such a power. It is argued

SO.

on behalf of the Commission that the power to pass upon the reasonableness of existing rates implies a right to prescribe rates. This is not necessarily The reasonableness of the rate, in a given case, depends on the facts, and the function of the Commission is to consider these facts, and give them proper weight. If the Commission, instead of withholding judgment in such a matter until an issue shall be made and the facts found, itself fixes a rate, that rate is prejudged by the commission to be reasonable." 2

The Commission construed this, as well as analogous opinions of the court in the Import Rate decision, as implying that "If the Commission does withhold its judgment until issue shall be made and the facts found, and then requires a carrier not to exceed charges indicated by the evidence to be reasonable and just, such action is authorized by the act."4 Acting upon this assumption, the Commission undertook to prescribe maximum rates, and was again overruled by the

1 162 U. S. 184.

2

p. 196.

8 162 U. S. 197.

4 Annual Report (1896), p. 22.

Supreme Court,1 which held that neither the court nor the Commission can "undertake to name a maximum rate in advance and enjoin a carrier from violating it." The power of the Commission over rates, said the court, is confined to inquiries as to railway management, the prevention of violations of the long and short haul clause, of discriminations and of undue preferences, and the securing to all shippers of "that equality of right which is the great purpose of the Interstate Commerce Act." In a case involving the relation of rates on the same class of goods from a Colorado point to San Francisco and from Chicago to San Francisco, the Commission issued an order fixing a maximum rate from the Colorado point to San Francisco, and specified that the same should not exceed a certain percentage of the rate from Chicago. This order was obeyed for about two years, when it was violated by one of the roads. The case, coming before the Circuit Court of Appeals, was decided adversely to the Commission, in harmony with the other court decisions cited above. This was in April, 1900, and since that time nothing has transpired which would warrant the assumption that the Commission has power to establish rates for the future. All that this body can do at present is to pass upon a rate actually in force, pronounce the same reasonable or unreasonable and, if the latter, investigate the rate after it has been modified by the carrier, voluntarily or under compulsion of the 1 167 U. S. 479.

courts, even by a fraction of a cent, and then continue this see-saw process until a reasonable rate has been evolved. Paraphrasing the words of a critic of the old Articles of Confederation, the Commission can "recommend everything and do nothing."

The Power of the Commission to secure Evidence. Section XII of the act to regulate commerce, both in its original form and as subsequently amended, gives the Commission power to require the attendance of witnesses and the production of books and papers, refusal being punishable by the courts. The amended form of 1889 repeated the original wording of the concluding sentence of section XII, as follows, "The claim that any such testimony or evidence may tend to criminate the person giving such evidence, shall not excuse such witness from testifying; but such evidence or testimony shall not be used against such person on the trial of any criminal proceeding." The amendment of 1893 was more explicit in respect to compulsory testimony and the penal consequences of the failure to comply with the summons of the Commission, and sought to protect the witness in the following language: "But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence, documentary or otherwise, before said Commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding; Provided, That no person so testi