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name any three judges of the United States district courts to constitute a special court with jurisdiction in all the States and Territories to review all causes which may arise under the provisions of the act to regulate commerce, and to administer all receiverships, etc., in common carrier causes?
From the findings of such court appeal to be only to the Supreme Court. The creation of the court of appeals since the act to regulate commerce became a law has increased considerably the time and expense of reaching the final decision.
England, through the Parliament, has createu a court composed of one judge, one railroad man, and one business man.
The findings of that court are, I understand, conclusive except on questions of law. They make the rates, which, however, are commonly said to be very high on freights.
They provide that there shall be no discrimination between parties and places.
If this country forms some such court as I have suggested to administer railroad receiverships the effect would seem to be beneficial to vested interests.
The bankrupt road could not be used as a club, as formerly, to distress solvent and prosperous roads who would have to pay interest, dividends, etc.
I hope I have been able to partly outline this subject and regret having to annoy you with so much manuscript. I am, sir, with high respect, your obedient servant,
Wm. H. CHADWICK, Chairman Transportation Committee, Board of Trade of Chicago.
STATEMENT OF T. W. TOMLINSON.
The CHAIRMAX. Please state whom you represent here.
Mr. TOMLINSON. I am the railway representative of the Chicago Live Stock Exchange. I have the honor to represent not only that exchange, but the Cattle Raising Association of Texas, and cojointly with Judge Springer I have also the honor to represent the National Live Stock Association. That association comprehends practically all the live stock associations in this country, and I believe you can safely say that I represent the live stock industry of this country--a very poor representative it is true, but at least I have that honor.
The CHAIRMAN. We shall be glad to hear you. There are just two points here that give us concern, and we must settle them. Can you give us light on the point of giving power to the Interstate Commerce Commission to change rates and the power to pool under proper restriction?
Mr. Tomlinson. The live stock industry objects to any pooling bill. The railroads indorse that, and want pooling for no other purpose than to increase their rates. We believe that in the aggregate the earnings of the railroads to-day give them a very fair return upon their investment. We will not indorse any machinery that will enable them to extract any more money without some absolute assurance that if they get more of this competitive traffic affected by the pool that additional traffic will be handled at lesser rates.
As to the making of the orders of the Interstate Commerce Commission effective immediately, the bill which we indorse, the Nelson bill, gives, as I read it, fifty days practically for the court to pass upon the order of the Commission. We think that is ample and long enough. The bill of your honorable chairman recognizes at least that the rates of the Commission ought to be in effect a year. As a matter of fact, if you can not get some immediate results from the order of the Commission the conditions will doubtless change in the course of a year so that it will be of no benefit to anybody at the end of that time.
Further than that, you must always bear in mind that there are many people interested in rates other than those who actually pay the freight. În other words, the producer and consumer may be indirectly affected,
and yet not be the ones who actually pay the freight. Hence those people would have no redress in a court from unreasonable charges.
We are certain of our position on those two points. I trust I have made it plain to you, and I shall now be very glad to answer any questions.
Senator TILLMAN. You are very strenuous in your statement. The matter has gone beyond a plea, as I understand, for action by Congress in restraint of the condition of confusion worse confounded in which the roads are left practically free to do as they please.
Mr. TOMLINSON. Yes; that is the condition. The situation has been very serious. There have been very portentious changes in the rail. road situation, but every change has been such as to strengthen their grasp upon the country. There used to be competition, but that is now a word almost without meaning as regards the railroad transportation facilities of the country. It is a very, very serious matter. The public should be safeguarded better than is even provided in the Nelson bill. While we indorse the Nelson bill, I feel personally that legislation ought to go farther.
Senator CLAPP. What would you suggest in addition to the Nelson bill?
Mr. Tomlinson. I do not know that I could suggest anything except to make the decision of the Commission absolutely final.
Senator CLAPP. Without appeal to the courts?
Mr. TOMLINSON. Yes. I do not know why we can not rely upon the Commission as well as upon the courts. "If the members of that Commission are not to be relied upon, they ought not to be there.
Senator CLAPP. Have you ever thought of the proposition that an action which involves property rights must have its day in court somewhere?
Mr. TOMLINSON. Yes. I have thought the matter over very carefully, and I am quite satisfied in my own mind that the interests of the entire country would be just as well safeguarded by having the Commission's decision final.
Senator CLAPP. I think you do not understand my question, which was as to the validity of a law which affects property rights without giving the parties their day in court.
Mr. Tomlinson. I assume that they fully have their day in court when they appear before the Commission.
Senator TILLMAN. In other words, Mr. Tomlinson, you consider that as the court itself is an appointive one, created by the President with the consent of the Senate, the Interstate Commerce Commission, getting its authority from the same source, backed by act of Congress, ought to be fully as able to render a final decision as a court devoted to ordinary legal matters?
Mr. Tomlinson. You have stated my view practically. Senator CLAPP. That is not the question. The question I asked is whether, under our Constitution, we can delegate authority to a tribunal to make an order which affects property rights without giving the owners an opportunity to appeal to the courts.
Have you ever given that point consideration?
Mr. TOMLINSON. I do not believe I can make any further answer than I did a moment ago. I am not a lawyer and I have not paid very much attention to it from a legal standpoint. I am only expressing my views as to the equity and fairness of the matter as they occur to me.
The CHAIRMAN. In expressing your views about pooling, do you express the views of all the parties you represent?
Mr. TOMLINSON. Yes.
Senator CLAPP. That is, the statement that there should be no appeal from the order of the Commission?
Mr. TOMLINSON. That there should be no appeal?
Senator TILLMAN. No. He was speaking of pooling. He said he was not entirely satisfied with the Nelson bill; that he thought it did not go far enough; and that personally he was in favor of going to the point of leaving no appeal.
Senator CLAPP. I understood the chairman's question to go to that point, but he did not so understand it.
The CHAIRMAN. It covered both points.
Mr. TOMLINSON. The association which I have the honor to represent indorses and supports the Nelson bill.
Senator TILLMAN. And that gives the right of appeal.
Mr. TOMLINSON. Mr. Chairman, before I leave the stand I wish to say that Mr. Barry asked me in his absence to file with you a peti.. tion from merchants, members of the Baltimore Chamber of Commerce, in support of this Nelson bill, and with your permission I will file it for the purpose of having it appear in the record.
The CHAIRMAN. Very well.
BALTIMORE, MD., April 1, 1902. The INTERSTATE COMMERCE COMMITTEE OF THE HOUSE OF REPRESENTATIVES,
Washington, D. C. GENTLEMEN: The undersigned merchants, members of the chamber of commerce, Baltimore, respectfully petition your honorable body to favor the adoption of the interstate commerce legislation now before you, embodied in a bill known as H. R. 8337, amending the interstate commerce law and giving it authority and force.
It is plain to all men that a few more years of discrimination and favoritism on the part of the railroads in the interest of the few shippers as against the many, will make business, except for the very wealthy, an impossibility. Already we have seen our fellow-merchant shrivel up and drop out by the wayside, ourselves have suffered and must in turn be driven from the marts of trade, if this unfair favoritism is continued. All we ask is a fair field and no favor, and this we hope is found in H. R. 8337, which we pray you will speedily enact into law.
W. G. Bishop & Co., George Frame, James J. Comer & Co., W. M. Knight,
Frank Kraft, H. A. Lederer, H. C. Wright, The Baltimore Pearl
, J. Oliver Neal, J. H. Maynadier,
Senator CLAPP. Is this Judge Springer you speak of, ex-Congressman Springer?
Mr. TOMLINSON. Yes.
Senator ClApp. He was also a judge in Oklahoma Territory; is that the man?
Mr. TOMLINSON. Yes. I said that cojointly with him I have the honor to represent the National Livestock Association, whose headquarters are in Denver.
Senator Tillman. I should like to ask you, if you are willing to express an opinion offhand, as to what effect the Nelson bill, for instance, would have in giving protection to the shippers, provided that the railroad consolidation has been effected, such as we were told this week had taken place, and we do not know but that it is true, by which every road from here to Texas, south of the Potomac and Ohio rivers, comes under one management. Would not that be a railroad pool that would practically leave the roads in absolute possession of the field, and we should have no protection whatever unless Congress specifically regulates the rates?
Mr. TOMLINSON. With the passage of the Nelson bill, the public would be at least assured of a tribunal who would have the power, after hearing, to say what was a reasonable rate. No tribunal has that power now.
Senator TILLMAN. Then you think that it is absolutely essential to the business interests of the country that Congress should do something by way of protection against this absorption or consolidation of the roads which tends toward making all roads practically one road throughout the United States ?
Mr. TOMLINSON. I think that is absolutely necessary.
STATEMENT OF JOHN D. KERNAN.
The CHAIRMAN. Please state your name, business or occupation, and whom you represent.
Mr. KERNAN. My name is John D. Kernan; my office is at 39 Liberty street, New York City. I appear here as counsel for the New York Produce Exchange. The CHAIRMAN. Proceed with your statement.
We shall be very glad to hear you.
Mr. KERNĂN. You know this subject is one to which a man may devote a good deal of his time, day and night, and then feel that he has not very greatly succeeded; but I shall endeavor to be brief.
I am here to say that since the passage of the interstate-commerce act I have given much thought and study to the operations of that law. I was the first chairman of the New York State railroad commission, serving in that capacity from 1873 to 1877, when I resigned. Since then I have been engaged in a great many cases brought before the Interstate Commerce Commission, representing the produce exchange and others, and that duty has led me to give thought, study, and investigation to the question.
We think that the Nelson-Corliss bill, with some amendments and perhaps additions, is one that meets the recognized necessities of the situation, that something should be done. If the interstate-commerce law is to be continued as the policy of the Government for the purpose of regulating the relations between the carriers and the people, something must be done to increase the efficiency of the orders made by the Commission after investigation, and to facilitate and hasten the remedy when rates are found to be unjust and unreasonable.
I may say at the outset that I think you will find 99 per cent of the complaints made before the Commission since its organization have not been upon the subject of the rates being too high. I do not think to-day that that is of any material importance. While there was an increase in rates of 35 per cent on the 1st of January, 1900, yet that was no more, I thought, than the increase ought to be in fairness, in view of the long period of disaster through which the railroads had passed and the reduction of rates that had occurred during that period. It is not the matter of high rates. The difficulty we have got to think about and the difficulty that this bill needs to remedy is the relation of rates to the competition between business men. I do not care whether the rate from New York City to Chicago on my freight is 50 cents per hundred, 60 cents, or 75 cents. But I do
very much care that upon my freight reaching my customer in Chicago the relation of my competitors' rights to mine shall be relatively fair, that one man shall have no more advantage in Chicago than I have.
This can only be secured by a body having the power to take in hand the actual situation and investigate in reference to it. The remedies proposed by this individual man or that individual man have ceased to be of use, as applied to this situation, where the great question between all the manufacturers and business men of the country is not as to just how much they pay, but that their relations to their competitors in reaching common markets shall all be fair and just.
I must first say that that bill, with some additions, would, in my opinion, be all right. In the first place, the most important'amendment to be suggested, to my mind, is that on page 6.
The filing of a petition to review an order shall of itself suspend the effect of such order for thirty days.
I think that ought to be sixty days. And the court before which the same is pending may also, if upon an inspection of the record it plainly appears that the order proceeds upon some error of law, or is unjust and unreasonable upon the facts, and not otherwise, suspend the operation of the order during the pendency of the proceedings in review, or until the further order of the court.
These words ought also to be stricken out-they have no business in the law-from the word “also” down to the word “suspend;" so that if both these amendments be adopted, it will read:
The filing of a petition to review an order shall of itself suspend the effect of such order for sixty days, and the court before which the same is pending may suspend the operation of the order during the pendency of the proceedings in review, or until the further order of the court, etc.
You can not undertake to break down the jurisdiction of the courts of the United States in that way. A railroad comes before the court and says, “ Here is an order of the Interstate Commerce Commission that is unjust; we want to appeal; we want a stay pending appeal.” The court says, “Under the ordinary equity jurisdiction of a United States court you should present a case where it is justitiable for us to suspend the operation of an order pending appeal; but we find that Congress in this new act has stated that it must plainly appear to usthat is, it must more plainly appear to the court than in an ordinary