closure of any desired information."-Tenth Annual Report (1896), p. 27.

In spite, however, of the confidence expressed by the foregoing the operation of the law which had been thus adjusted and readjusted to meet the wishes of the Commission did not result to its satisfaction. New recommendations were deemed necessary and, on January 17, 1902, the Commission said:

"The criminal provisions of the law should be further and generally amended with the view of removing their ambiguities and giving to those provisions the strength and enforceability which come from definiteness of statement."-Fifteenth Annual Report (1901), p. 8.

The reasons urged in support of this recommendation were summarized, in the same report, as follows:

"The Act requires carriers to publish interstate rates and adhere to such published tariffs. But the tenth section, as construed by the courts, does not punish, otherwise than by a possibly nominal fine,1 a departure from the published tariff, unless there is actual discrimination between shippers. To convict for unjust discrimination it is necessary to show not merely that the railway company paid a rebate to a particular shipper, but it must also be shown that it did not pay the same rebate to some other shipper with respect to the same kind of traffic moving at the same time under similar conditions. As a practical matter this is almost always impossible. For this reason prosecutions other

1The fine fixed by the statute, from the enactment of the law to the date on which the report quoted was published, and thereafter until February 19, 1903, was "not to exceed $5,000." Only a lack of confidence in the Federal judiciary is expressed by the suggestion that such fines might, improperly, be made "nominal"; only a desire to imprison the defendants could lead to a preference for proceeding for "unjust discrimination" instead of "departure from the published tariff." Even if imprisonment were the only penalty that could satisfy the Commission, it is difficult to see why it could not have been brought about by charging a conspiracy to violate a law of the United States, under Section 5440 of the Revised Statutes, which reads as follows:

66

'If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than $10,000, or to imprisonment for not more than two years, or to both fine and imprisonment in the discretion of the court."

This statute has continuously been in force since long prior to the passage of the Interstate Commerce law. As to its application, see 56 Fed. Rep., 21.

wise sustainable can rarely be successful; and this is particularly the case where there is an extensive demoralization of rates, and consequently the greatest need for the application of criminal remedies. Departure from the published rate is the thing which can be shown and the thing which should be visited with fitting punishment."

The Commission had previously declared itself in favor of abolishing the imprisonment penalty, which had been provided on its recommendation in 1889, as it was believed that the existence of this penalty greatly increased the reluctance to make the needed disclosures on the part of those having knowledge either of actual violations of the law or that would be likely to lead to the discovery of evidence of such violations.2 These recommendations were, like their predecessors herein discussed, enacted into law by the Congress. On February 19, 1903, the President of the United States gave his approval to the Act, commonly known as the Elkins law, which made the changes thus urged. As originally passed this Act extended the penalties for violation of the Interstate Commerce law to the carrying corporations concerned in them, made them fully applicable to willful failures to file and publish tariffs and to every departure from the rates named in such tariffs and fixed a minimum penalty of $1,000 and a maximum penalty of $20,000 for each offense. It also did away with the imprisonment penalty and made tariffs filed with the Commission conclusive evidence of the legal rates. The first section of the Elkins law was reënacted, as a part of the reconstructed Interstate Commerce law that was approved on June 29, 1906, but with some minor modifications and two important additions. The first of these additions reëstablishes the alternative or supplemental penalty by "imprisonment in the penitentiary 1 See last preceding foot-note.

2 It has been denied that the Commission ever recommended the abolition of the imprisonment penalty. For such a denial and an effective answer see remarks of Senators LaFollette and Foraker in Congressional Record of May 10, 1906. But on December 8, 1899, as shown by the official records, the Commission, by unanimous vote, directed its executive officer to "coöperate with certain mercantile organizations to secure the adoption of amendments to the Act to regulate commerce," and among the amendments specifically included in this instruction was one doing away with the imprisonment penalty. The officer in question was ordered to "devote himself assiduously to such duty."

for a term of not exceeding two years," and the second provides a civil forfeiture by the recipient of any rebate equal to three times the sum so received. The new law contains further provisions intended to prevent rebating in the requirements for uniform accounts to be prescribed by the Commission and at all times open to its inspection and the prohibition of keeping any other records, accounts or memoranda.

Such is the legislative history of the attempt to eliminate from American railway practice the evil of secret rates and those unjust discriminations which are accomplished by means of unlawful concessions from the rates regularly scheduled. From this point of view interstate railway transportation is divided into two principal periods, which are: (first) the period prior to April 5, 1887,1 when there was no statutory obligation to publish rates or to conform to them when published, and (second) the period since April 5, 1887, during which the publication of rates has been required and only the published rates could lawfully be charged. The second period is also susceptible of division as shown by the table on the next page.

Bearing in mind these successive states of the law and the dates on which each of them began and ended, it is worth while to trace the degree of success attained in the enforcement of the law, as faithfully recorded in the reports of the Interstate Commerce Commission. It will but slightly anticipate the results of such an effort to observe that the beginning of each of the five periods indicated in the table has generally been characterized by a sudden cessation of complaints of the forbidden practices which, after a respite of longer or shorter duration, have never failed to reappear and not always with diminished intensity. Of course this recrudescence has not occurred under the law that became effective in August, 1906, but the period of opportunity is still short and it is, perhaps, too early to declare with confidence that the obnoxious practices, which have survived four previous states of the prohibitive law although each was, in its turn, authoritatively declared to approximate, if not to attain, perfection, have forever disappeared.

1 The Interstate Commerce law was approved on February 4, 1887, and took effect sixty days later.

The first ten months' experience under the statute of February 4, 1887, convinced the Interstate Commerce Commission that rebates were already obsolete. The report said :—

"There is every reason to believe, however, that some of the most serious evils which were notorious in the railway service before the passage of the act, and were in the legislative mind as reasons for its enactment, have now almost ceased to exist. One of these was the giving of special and secret rebates."-First Annual (1887) Report, p. 25.

In the same report the Commission expressed the opinion, similar to that frequently heard at the present time, that the railways were receiving increased revenues on account of the new law.

"It has operated directly to increase railroad earnings, especially in the cutting off of free passes on interstate passenger traffic, and in putting an end to rebates, drawbacks, and special rates upon freight business."-pp. 41-42.

And again, in the same report:

"Freight traffic for the year has been exceptionally large in volume, and is believed to have been in no small degree stimulated by a growing confidence that the days of rebates and special rates were ended. -P. 42.

The Commission also reported that "among all the complaints" it had received not one had alleged "a specific act" in violation of the law against departures from the tariff rates and that in the litigated cases in which it had been required to take testimony concerning railway practices at important traffic centers there had been, in all but "a single exceptional instance,"

66

entire agreement in the proofs that special rates to individuals and secret rebates were no longer made;

-P. 25.

The Second Annual Report of the Commission, issued in December, 1888, devotes much less space to the question of rebates but discloses a somewhat diminished confidence in the 1 First Annual (1887) Report, p. 25.