Annual Report of the Interstate Commerce Commission

By the act to regulate commerce the Commission is required to make and transmit to the Congress each year a report containing such "information and data" as may be considered of value in the determination of questions connected with the regulation of commerce, together with such recommendations as to additional legislation as the Commission may deem necessary to such regulation.

As indicated in our last annual report to the Congress, questions arising under the act have been from the time of its enactment the frequent subject of adjudication in the courts. Its provisions have been applied by the Commission in the numerous cases continually demanding investigation and adjustment. Its scope and purposes have been widely commented upon by newspapers and other publications. The earlier reports made by the Commission to Congress were largely given up to the discussion of the act, its interpretation, and intended application, and it may be accepted as true that the objects and require-. ments of this law are fairly well known to carriers and shippers and to the public.

It is believed, as was further indicated in our last report, that the discussion of the principles and aims of the statute may well give place, temporarily, to a consideration of the means necessary to make effective and give force to the law in accordance with the purpose of its enactment. The experience and observations of the past year, in which the progress of regulation under the act has not been entirely satisfactory, warrant the conclusion that with the official proceedings and transactions of the year relating to the operations of the law we should report as a matter of first importance and recommend the additional legislation deemed indispensable to give effect to the act in accordance with

its purposes, as declared in the first three sections thereof. These sections declare the purposes and objects of the act, while the subsequent sections supply, or are intended to supply, the means for making it effective, afford remedies for its infraction, and provide penalties for violating its requirements. If the carriers made no other than reasonable and just transportation charges, as by the first section they are required to do; if they made equal charges for equal services, did not unjustly discriminate and charge some persons more than others for like service, which is forbidden by the second section, and would give no unfair preference and advantage and would afford equal treatment, as they are enjoined to do by section 3, the subsequent sections of the act might well be dispensed with.

In connection with, or as preliminary to the additional legislation recommended and the necessity therefor, and that both may be more readily understood, it is deemed advisable to report to Congress the hindrances to the execution of the act and the obstacles which have prevented and which still obstruct its efficient enforcement.

HINDRANCES TO THE EXECUTION AND ENFORCEMENT OF THE

ACT.

The Commission is authorized and required to execute and enforce the provisions of the act. To enable it to perform this duty the act provides that the Commission shall have the right to obtain from common carriers full and complete information as to the management of their business and the manner in which the same is conducted. The means

or method of performing the duty thus enjoined upon the Commission to execute and enforce the provisions of this law is through the courts, under the following provisions of the twelfth section of said act:

And the Commission is hereby authorized and required to execute and enforce the provisions of this act; and, upon the request of the Commission, it shall be the duty of any district attorney of the United States to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the AttorneyGeneral of the United States all necessary proceedings for the enforcement of the .provisions of this act and for the punishment of all violations thereof.

Said section 12 further provides:

For the purposes of this act the Commission shall have power to require, by subpœna, the attendance and testimony of witnesses and the production of all books, papers, tariffs, contracts, agreements, and documents relating to any matter under investigation.

In case of disobedience to a subpoena or refusal of a witness to appear before the Commission and give testimony or produce books, papers, and documents, it is further provided by said section 12 that

The Commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of books, papers, and documents under the provisions of this section.

Section 860 of the Revised Statutes, which provides that witnesses. shall not be excused from testifying because their testimony may tend

to criminate them, and that such testimony shall not be used against persons so testifying in any criminal proceeding, was incorporated into the act, and without being so incorporated was applicable in proceedings under this act.

To better secure observance of the statute, any willful infraction thereof by carriers and shippers, their officers and agents, is made a misdemeanor, punishable by fine not to exceed $5,000 for each offense. When the offense for which any person may be convicted shall be an unlawful discrimination in transportation charges such person shall in addition to such fine be liable to imprisonment in the penitentiary for a term not exceeding two years, or to both such fine and imprisonment, in the discretion of the court.

In the third year after the act to regulate commerce became a law an indictment was found in the United States district court for the northern district of Illinois (Chicago) against a common carrier, a corporation, and one or more of its officers and agents, for giving rebates. The court held that under the terms of the statute the corporation was not indictable. The Commission reported the fact to Congress and asked that the statute might be so amended that corporations should be subject to indictment, according to the original intention of the law, and this recommendation was several times repeated. Five years have elapsed since this recommendation was first made, the law is unamended, and, as the courts hold, corporations are not indictable.

The offenses which are made misdemeanors by the act to regulate commerce are peculiarly within the knowledge of the parties to these unlawful transactions. The cases are rare and exceptional, if not accidental, in which such offenses can be proven by other testimony than that of one of the guilty parties, as provided by the terms of said section 860 of the Revised Statutes.

In November, 1890, one Charles Counselman was subpoenaed to testify before the United States grand jury in the northern district of Illinois (Chicago) touching alleged violations of the penal provisions of the act. The witness having refused to testify on the alleged ground that his testimony would tend to criminate him, and being held for contempt because of such refusal, he, the witness, appealed to the United States Supreme Court, and on January 11, 1892, that court held said section 860 of the Revised Statutes to be unconstitutional and void. This statute had been in force twenty-five years and applied as well to all other misdemeanors as to those arising under the act to regulate commerce. The overthrow of this statute rendered proof of guilt under the act impracticable without further legislation, and several indictments then pending were necessarily dismissed.

In declaring the statute void in the Counselman case the Supreme Court said:

In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.

In our annual report, December 1, 1892, we reported to Congress the necessity for, and recommended, additional legislation in conformity with that which the Supreme Court had said would be "valid." On February 11, 1893, subsequent to such recommendation, Congress enacted the following:

That no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission, whether such subpoena be signed or issued by one or more Commissioners, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the act of Congress, entitled "An act to regulate commerce," approved February fourth, eighteen hundred and eighty-seven, or of any amendment thereof on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to criminate him or subject him to a penalty or forfeiture. 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 testifying shall be exempt from prosecution and punishment for perjury committed in so testifying.

Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce books, papers, tariffs, contracts, agreements, and documents, if in his power to do so, in obedience to the subpoena or lawful requirement of the Commission, shall be guilty of an offense, and upon conviction thereof by a court of competent jurisdiction shall be punished by fine not less than one hundred dollars nor more than five thousand dollars, or by imprisonment for not more than one year, or by both such fine and imprisonment.

On February 16, 1894, when said act of February 11, 1893, was in full force and effect, one James G. James was subpoenaed to give testimony before the United States grand jury in the northern district of Illinois (Chicago) touching offenses which were misdemeanors under the act to regulate commerce.. The witness refused to testify, alleging that his testimony would tend to criminate him. He was reported to the court by the grand jury. The court discharged him on the alleged ground that said act of February 11, 1893, required testimony which would tend to criminate him, and that the act was therefore unconstitutional. The Government could not appeal from this ruling, and therefore it was impossible to obtain the decision of the Supreme Court upon the correctness of this ruling until the question could be raised and a different ruling obtained in another jurisdiction. The Commission therefore reported the facts to Congress and recommended that the law be so amended as to allow the Government to appeal to the Supreme Court in such cases. No action was taken on this recommendation.

After a delay of nearly two years, in the western district of Pennsylvania one Theodore F. Brown was subpoenaed to testify before the United States grand jury in relation to the alleged giving of rebates by E. P. Bates and Thomas R. Robinson, officers of the Allegheny Valley Railway Company. Brown having refused to answer questions lest he should criminate himself, though required to answer by the court, was

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