held for contempt by the United States district judge. Brown then petitioned the circuit court of said western district of Pennsylvania for a writ of habeas corpus, and on the hearing by said circuit court the ruling of the district court was sustained and the act of February 11, 1893, held to be constitutional. The case was appealed to the United States Supreme Court, and has been advanced and set down for hearing on January 6 next, 1896.

It will thus appear that for more than five years, last past, it has been impracticable to obtain testimony on which to enforce the penal provisions of the act, the statute having received a construction which made it impossible to obtain evidence of guilt, though a very few convictions of no great importance have been secured upon testimony casual and accidental.

In a proceeding instituted by the Commission against the Calumet and Blue Island Railway Company et al., one W. B. Brimson and other witnesses were summoned to appear and testify before the Commission. Brimson refused to testify or to answer certain questions propounded to him by the Commission relating to the business management of said railway company, or to produce stock books of the railway company as demanded by the Commission. The Commission, pursuant to a provision of the twelfth section of the act herein before copied, invoked the aid of the United States circuit court for the northern district of Illinois (Chicago), and on July 15, 1892, applied to said court for an order compelling the witness both to answer the questions and produce the books. Upon consideration of the matter the circuit court dismissed the application, holding that "so much of said section 12 as authorizes or requires the courts to use their process in aid of inquiries before the Interstate Commerce Commission is unconstitutional and void."

At the instance of the Commission, the Government appealed to the United States Supreme Court, where it was decided, May 26, 1894, thatThe twelfth section of the interstate-commerce act, authorizing the circuit courts of the United States to use their process in aid of inquiries before the Commission established by that act, is not in conflict with the Constitution of the United Statesthree members of the court dissenting.

In his report made to the Congress December 1, 1894, the then Attorney-General of the United States said of this decision

In Interstate Commerce Commission against Brimson it was held by a bare majority of the court that a circuit court of the United States was bound to use its process to compel a witness to testify or produce papers in aid of an investigation by the Commission. The far-reaching consequences of this decision are thus succinctly stated in the dissenting opinion of Mr. Justice Brewer:

"If the power exists, as is affirmed by this decision, it carries with it the power to make courts the mere assistants of every administrative board or executive officer in the pursuit of any information desired, or in the execution of any duties imposed. It informs Congress that the only mistake it made in the Kilbourn case was in its attempting to punish for contempt, and that hereafter the same result can be accomplished by an act requiring the courts to punish for contempt those who refuse to answer questions put by either House or any committee thereof."

As the result of this decision the right of the Commission to invoke the aid of the courts in securing testimony, books, and papers, as provided by said section 12 of the act, was established. This right had until then been so persistently questioned and denied as to make the provision of the statute practically inoperative. Still, as herein before shown, the power to compel the attendance of witnesses and to produce books served no practical purpose after the decision of the court in the northern district of Illinois declaring the act of February 11, 1893, unconstitutional and void; for witnesses compelled to appear might refuse to answer or produce books by claiming that such testimony would criminate them.

What is stated on the preceding pages relates to the hindrances and obstacles in the way of executing the penal provisions of the act. In the present state of the law as construed by the courts like difficulties, attended with like results, delay and obstruct the execution and enforcement of the act in matters having their first consideration before the Commission. In all such matters the Commission is dependent upon the courts for carrying its orders into effect.

In the case of The James & Mayer Buggy Company v. The Cincinnati, New Orleans and Texas Pacific Railway Company et al. (the Social Circle case), which involves the most vital principles of the act, the Commission rendered its decision in 1891, and filed a petition for the enforcement of its order in the United States circuit court for the northern district of Georgia on the 21st of October, 1891. Four years have since elapsed, and this case is pending in the Supreme Court. Numerous cases in the lower courts wait upon the decision of this case, and are continued from time to time to avoid the expense of litigation. In the case of Coxe Bros. & Co. v. The Lehigh Valley Railroad Company, the Commission, after a thorough and painstaking investigation, decided that there should be a substantial reduction in the transportation charges on coal from the anthracite region of Pennsylvania to tide water at New York. On May 21, 1891, the Commission filed a petition in the United States circuit court for the eastern district of Pennsylvania to enforce its order of reduction, and after more than four years the case stands on the docket of the said circuit court untried.

The above, it is believed, sufficiently illustrates the difficulties encountered in the attempt to enforce the statute, and will, we trust, indicate to the Congress the necessity for such further legislation as in its wisdom may be deemed necessary to carry out the provisions of said act.

AMENDMENTS TO THE LAW.

The importance of amending the present law can not be stated with too much emphasis. This subject has been repeatedly brought to the attention of Congress, but for one reason and another the measures hereto

fore recommended have failed of adoption. It may be that similar failure will again occur at this session, but nevertheless it is our dutyimposed by the terms of the statute and enforced by our sense of public obligation to point out the respects in which existing laws are spe cially defective, and to indicate with some precision the range and character of needed legislation.

The Commission is not to be understood as advocating at this time an enlargement of the general scope of the act, or as asking any radical change in its general structure. Those who have given most reflection to the subject of Government regulation are aware that the laws now in force are more or less tentative and experimental, and such persons anticipate that the evolution of railway control by public agencies will sooner or later result in a more comprehensive and direct exercise of the power possessed by Congress to regulate our internal commerce. But the time has probably not arrived for new departures in this field of legislation, and the Commission is careful to confine its recommendations within the limits and aims of the original enactment. The distinet object, therefore, of the amendments now urged upon your attention is to give to the statute the degree of completeness and effectiveness which it was designed to have, and to provide the means whereby its purposes can be fairly accomplished. It certainly can not be believed that Congress, having once assumed to exercise a measure of control over railway carriers, will allow that control to become ineffectual by withholding the legislation found necessary to secure the results expected. We desire to make it specially plain that the amend ments asked for at this time are intended simply to make the substance of the law mean what it was supposed to mean at the time of its passage. Experience has demonstrated the respects in which the statute is inadequate, and that demonstration discloses, we submit, the duty of Congress to correct its proven deficiencies. If the policy of regulating railroads by public authority is to be permanently continued, it is obvious that laws should be provided to make that regulation efficient and useful.

The special weakness of the law as it now stands is the want of finality and binding force to the decisions of the Commission, though made upon facts ascertained after notice to the carriers and full opportunity for all interested parties to be heard. The absence of any conclusive character to our determinations deprives them of the weight and vigor which they ought to possess, and prevents the exercise of that authority which is essential to effective regulation. The Commission is not a court and has no means of its own for enforcing its orders. The theory of the law is that if the directions of the Commission are not regarded by those affected thereby the courts will enforce compliance unless justifying cause for not doing so is made clearly to appear. With this view the law provided that in proceedings in the courts to enforce the decisions of the Commission the facts found by it in any

investigation, and the conclusions based upon those facts, should be deemed prima facie correct for all the purposes of such proceedings. By this we suppose it was expected that the courts would compel obedience to an order of the Commission, unless the record of the investigation which resulted in that order disclosed some plain error of fact or conclusion sufficient to justify the court in refusing to take such action. But this result has not been realized, nor will this feature of the law, as interpreted by the courts, bear such a construction.

The effect of the provision, therefore, is, when the matter comes into court, to throw the burden of proof upon the disobedient carrier and require it to take the affirmative of the issue. This simply means that the carrier can have practically a new trial of the same question in the courts. Not only so, but the courts may thus be required to pass upon a very different state of facts than those presented to the Commission. The carrier may not even appear before the Commission when called to account, unless compelled by subpoena to do so, and if appearing may give much or little evidence before the Commission, as it chooses; and then if there is a decision against the carrier it can meet in the courts the prima facie case made before the Commission with such new evidence and defense as it is able to produce. So the whole work of the Commission in a given case, however careful and exhaustive, and its decisions, however just and salutary in the public interest, may have only the most lame and impotent conclusion.

This has been the actual outcome in several cases, and until such a result is made practically impossible the work of the Commission in its most valuable aspects must be more or less a disappointment. Five years ago, in the annual report of the Commission for 1890, this infirmity of the law was pointed out and the resulting consequences described in the following language:

The inadequacy of a scheme of regulation under which such results may be common is entirely manifest. One of its elements of embarrassment is the uncertainty and delay that must attend the administrative action of the Commission. If a carrier can simply ignore the findings of the Commission and wait for a new trial in the courts upon different testimony, in a proceeding to be instituted and carried on by the Commission, there can be no certainty upon any administrative question until the judgment of the court of last resort shall be pronounced, and the delay alone substantially defeats the remedy. This is fatal to effective regulation. The remedial procedure should be in a measure summary, and there must be finality, so far as facts are concerned, in the action of some tribunal, leaving only questions of law for review, and these at the instance of the party claiming to be aggrieved. A procedure of this nature would be in harmony with the general policy of the law that the facts, as found by the primary body that hears the testimony and sees the witnesses, shall be final for purposes of justice and for appellate review.

Adopting the views then expressed and impressed by the experience gained since that time, the present Commission can not be too earnest in urging upon Congress the necessity for so amending the procedure section of the act, relating to the enforcement of disobeyed orders, as to make the findings of fact by the Commission in any case conclusive

upon the parties affected by its decisions, under such limitations as will fully protect their constitutional rights. There is no disposition on our part to exercise any needless authority or to deprive an interested carrier or complaining party, dissatisfied with our rulings, of the amplest opportunity for obtaining a judicial review of our determination. Absolute finality for our decisions is neither asked nor desired. But we do insist that there can be no efficient regulation unless the revisory power of the courts, in cases where full opportunity has been given for a disclosure of all the facts upon which reliance is placed, shall be confined to a record made up of the testimony taken and proceedings had before the Commission. It is indispensable to the exercise of real and useful control over railway carriers-such control as the Constitution contemplates and the law intended-that this Commission or some other special tribunal should have authority to determine in the first instance, and to the extent of a court of first instance, whether the conduct of a given carrier against which complaint has been made, and which has been fairly investigated upon notice and opportunity to be heard, is or is not in violation of the provisions of the act.

Let there be a trial of the question before this tribunal; let both sides put in all their proofs; let all the parties be fully heard; and then let there be a decision by this tribunal which shall stand as a rule of conduct prescribed by public authority unless the courts, upon examination of the record thus made, shall find therein some material error plainly prejudicial to the defeated party which furnishes sufficient reason for refusing to enforce that decision. Under such provisions of law the appropriate degree of conclusiveness would attach to the findings and orders of the Commission, while any injustice resulting from discovered mistakes or unwarranted conclusions could be corrected by the refusal of the courts to compel compliance with the disregarded requirements. As a part of such a scheme the courts should have power, when satisfied that the directions of the Commission are not justified by the facts appearing in the record, to render such judgment as the case might seem to require, or to recommit the matter to the Commission for further investigation. This, in brief, is the change in the law of most immediate and special urgency.

The importance of amending the act in this regard, so that the decisions of the Commission in contested cases may have some actual authority, is emphasized in a special degree by a correct understanding of the questions to which regulation is primarily related. This point of view is frequently overlooked, and most erroneous and misleading notions upon the subject are widely entertained. In many quarters it seems to be assumed that the principal purpose of the law is to ferret out the individual instances of rate cutting and other secret devices, by which in various ways one shipper gets an advantage over another, and that the special object of the statute as well as the chief duties