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freedom of interstate commerce received but little attention at the hands of the court. This decision of the Supreme Court reversing the Supreme Court of Illinois, was rendered in 1886, in the same year that the freedom of interstate commerce from the state taxing power was declared in the Tennesee drummer case, and broadly affirmed that the statute of a state enacted to regulate and tax, or to impose any other restriction upon the transmission of persons or property or telegraph messages from one state to another, was not within the class of legislation which the state, in the absence of legislation by congress, could enact, and that the state statute was void as to all interstate shipments, including that part of the transmission of such shipments which was within the state.

$46. Passage of the Interstate Commerce Act.- The decision in the Wabash case demonstrated the lack of power in the states to regulate interstate shipments,' and the demand for the exercise of this power by congress becoming irresistible, the interstate commerce bill which had been pending for several years in congress became a law February 4, 1887.2

The discussion in the two houses of congress and in the public press was mainly directed to the long and short haul clause contained in the fourth section, and the prohibition of pooling contained in the fifth section of the act. Differences of opinion developed between the house and the senate, the former insisting on the prohibition of pooling and on a qualified long and short haul clause. The bill was finally enacted in the form reported by the conference committee of the two houses of congress. Frequent references were made in the debates to the then recent decision of the supreme court in the Wabash case denying to the states any power for the regulation of interstate traffic. A very wide difference of opinion was developed in the discussion as to the proper construction of the act, particularly as to what were the "substantially similar circumstances and conditions" in the fourth section, and one of the members of the house in the final debate described the bill as

This case was decided October 25, 1887, but the terms of the commis1886. sioners were computed from January 1st. See 19 Opinion of Attorney Generals, p. 47, 1887.

2 The interstate commerce commission was established March 22,

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one which nobody understands, nobody wants, and everybody is going to vote for."

$47. Judicial construction of the act to regulate commerce. The act to regulate commerce was so clearly within the powers of congress, that no serious question was raised as to its constitutionality. Very grave questions, however, have been made as to what powers were conferred upon the commission by the terms of the act, and as to the construction of the different sections of the act in relation thereto.

As will be seen from the cases infra, grouped under the different sections of the act, the powers of the commission have been construed by the Supreme Court to be materially different from the powers claimed and exercised by the commission during the first years of its existence. Thus, the commission has no power to make maximum and minimum rates for the future, and the judicial construction of the long and short haul clause in section four of the act, so that the competition between the carriers creates substantially different circumstances and conditions within the meaning of this section and has materially curtailed the jurisdiction of the commission

1 For a comprehensive and accurate statement of the condition of the state regulation of railroads at and prior to the adoption of the interstate commerce act, see Hadley's Railroad Transportation, its History and its Laws," first published in 1885. See also report of Windom to U. S. Senate, 1874, (Senate Report No. 307, 43rd Congress, 1st Session). Cullom Report (Senate Report No. 46, 49th Congress, 1st Session). Hepburn Report, New York Legislature of 1879. In the Import Rate case, 162 U. S. 211, 40 L. Ed. 944, the supreme court in referring to the causes for the enactment said:

"They chiefly grew out of the use of railroads as the principal modern instrumentalities of commerce. While shippers of merchandise were under no legal necessity to use railroads practically they were. . . . From the very nature of the case, therefore, railroads were monopolies, and

the evils that usually accompany monopolies soon began to show themselves, and were the cause of loud complaints. The companies owning the railroads were charged, and sometimes truthfully, with making unjust discriminations between shippers and localities, with making secret agreements with some to the detriment of other patrons, and with making pools or combinations with each other, leading to oppression of entire communities. . . . As the powers of states were restricted to their own territories and did not enable them efficiently to control the manage. ment of great corporations whose roads extend throughout the entire country, there was a general de mand that congress. in the exercise of its plenary power over the subject of foreign and interstate commerce, should deal with the evils complain ed of by a general enactment, and the statute in question was the result.'

under the act. The commission can declare, subject to the approval of the court, a specific rate unreasonable, but it can. not declare and enforce any substituted rate as reasonable.

The supreme court has approved the language of Mr. Justice Jackson, who said in one of the early cases under the act: "Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act. to regulate commerce leaves common carriers as they were at the common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce,. and generally to manage their important interests upon the same principles which are regarded as sound, and adopted in other trades and pursuits."

This judicial construction of the act has led to agitation for its amendment, so as to give the commission a more effective control in the enforcement of reasonable rates, and also in expediting procedure in the enforcement of the act. The commission has also contended in its successive annual reports that the evils which are sought to be remedied by the act, included not only the discriminations between shippers and localities. in the enforcement of established rates, but also the establishment and maintenance of rates which in themselves, or as between localities and kinds of traffic, were unreasonable.3

It has developed also in the railroad history of the country since the enactment of the Interstate Commerce Act and in the discussions before the commission and in the courts, as well as before the committees of congress, that what the public good really requires is not only reasonableness, but also stability in 1 Interstate Commerce Commission v. B. & O. R. Co., 43 Fed. Rep. 47 (1890).

2 The delays of the law were forcibly illustrated in the fact that it was not until 1897, ten years after the passage of the act, that the judi cial construction was definitely es tablished as to the short and long haul and the powers of the commission in making rates. At this time

the cases only reached the supreme court through the circuit court of appeals. Since that time the procedure has been materially expedited, especially since the so-called Expedition Act, infra, § 349.

3 See annual report of the commission recommending amendments; also final report of industrial commission, 1902, vol. 19, pp. 259, 419, 481..

railroad rates. The prohibition of pooling in section 5 (infra, $68) of the act has been a powerful influence in promoting the effectual elimination of competition through consolidations and practical control of competitors through community of interest. The device of a holding corporation as a means of effecting this control was condemned in the Northern Securities case, but the tendency toward a practical elimination of competition is none the less clear. It has, therefore, been suggested with force that as unregulated competition with recurring rate wars is detrimental to the public as well as to the railroads, conferences and agreements as to rates, and especially in the adjustment of the complicated relation of rates, under the regulating supervision of some public authority such as the Interstate Commerce Commission, would greatly contribute to the maintenance of stable and reasonable rates and thus to the permanent solution of the pending difficulties. of the transportation problems between the railroads and the public.

$48. Amendments and proposed amendments of the act. Amendatory acts have been passed by congress in 1889, 1893 and 1903. The first of these was that of 1889 and gave a shipper an additional summary and effective remedy by writ of mandamus, to compel the carrier to furnish equal facilities (infra, § 308). That of 1893 remedied the difficulty growing out of the inability to enforce self-incriminating testimony (infra, 263). In 1903 was enacted the so-called Expedition. Act (infra, § 349), which materially expedited the procedure in suits brought by the United States, or suits prosecuted by direction of the attorney-general in the name of the Interstate Commerce Commission.

The amendatory act of February 19, 1903, known as the Elkins law, made very important changes and materially enforced the provisions against discriminations, in that it made the published rates conclusive against the carrier, every deviation therefrom being punishable. The scope of the act was also materially extended as to the parties subject to its provisions. Fine was substituted for imprisonment in the penal provisions of the act (infra, § 310).

None of these amendments have affected the rate-making power of the commission. A strong agitation has been made

for such an amendment to the act as would enable the commission to determine after hearing, not only what was an unjust and unreasonable rate, regulation or practice, but at the same time to determine what was just and reasonable, and that such determination should become operative without an appeal to the court as under the present law, and subject only to be set aside by a judicial review at the instance of the carrier. A special court of transportation has also been proposed to review the orders of the commission in case of appeals. Under the act as it now stands, the commission is an investigating and prosecuting administrative body, whose findings. are given a prima facie force in judicial proceedings. Under the proposed amendment, its finding would become self-enforcing, in that it would be binding upon the carrier unless the court should, upon hearing, restrain its operation. As will be hereafter seen, questions of reasonableness in the adjustment of rates are, in the main, questions of fact and often involve very complicated circumstances, especially in determining the relation or interdependence of rates in our vast territory. The analogies of ordinary litigation are not applicable, in that every question of rates is adjusted to the then existing circumstances, which may be, and ordinarily will be, materially changed before the court of final review can act. The doctrine of judicial precedent, therefore, has a very limited application. It is also true that a bond given by the carrier as a condition of maintaining a rate found unreasonable by the commission or a court, may be a very inadequate remedy to the parties or industries really injured by such rate, and on the other hand, it is also true that the carrier would be practically without remedy, if compelled to reduce a rate under an order of the commission which was afterwards set aside on the review in court.2

1 President Roosevelt, in his message of December, 1904, recommends the amendment of the Interstate Commerce Act by conferring on the InterstateCommerce Commission the power to revise rates and regulations, subject to judicial review, the ruling of the commission to go into effect and remain in effect, unless and until reversed by a court of review;

and also that steamship companies engaged in interstate commerce, protected in the coastwise trade, should be held to the observance of the act. The act now includes only railroads and water transportation connected with railroads.

2 The house of representatives of the 58th congress, on February 9, 1905, passed what was known as the

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