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Mr. Daisy. To amplify the point a little, suppose the circuit court suspends the order; that would place the traffic back on the higher rate.

The CHAIRMAN. Or the rate made by the railroad.

Mr. Daisy. Yes; we may use that term, presuming it means an unreasonable rate. That puts the traffic back to the railroad rate. As representing a shipper, I should certainly want to apply at once to the Supreme Court of the United States and say to that court that this is so wrong, that the circuit court of the United States has so sadly missed the mark, and that the Commission were so completely right, that I want you, pending full argument, to say that the Commission was right when it determined that the rate was unreasonable and unjust. On the other hand, if the circuit court does not suspend the order, then the carrier, who on appeal should certainly be allowed to have his day in court, could say to the Supreme Court: “The circuit court is wrong, the Interstate Commerce Commission is wrong, and without looking at these papers that have been filed against us, we want you to suspend this order pending proceedings.” It seems to me as fair for the one as for the other.

The CHAIRMAN. The Elkins bill provides that the Supreme Court may do it.

Nr. Daish. If by application in the nature of a petition, or by any interlocutory proceeding, you allow one party that right before the circuit court, then allow both parties the same right before the Supreme Court, because the circuit court may do either one way or the other.

There is another difference between the two bills, and that is as to the length of time that the order of the Commission shall be in force and effect--the difference between one year and two years. For some reasons I am rather inclined personally to favor the one year on certain classes of commodities. I recall distinctly one of the earlier cases before the Commission, dealing with transportation rates on wheat from Oregon to Washington. The order in that case was practically this: That on and after the 21st day of December until the end of the present shipping season—which I think was the 21st of June--it shall be unlawful for the carrier to charge a greater rate than a specified amount. I think Mr. Jones will bear me out that if these orders or decrees could be made to correspond to certain harvest times it would be of advantage.

On the other hand, it may be said that a year is too short a time in which to try the particular rate. Or, again, it may be said that within two years we may have serious business conditions which would practically necessitate asking that the rate be changed.

But I take it that under either the Nelson-Corliss or the Elkins bill, at

any time pending the decree, upon the assumption that the carriers obey the order, at any time within a year or two application might be made by the carrier or by the shipper for a modification of the decree. If, for instance, the price of steel rails should go up, or if we should have a panic and the price of steel rails should go down, freights were hard to move, nobody wants anything, and you wish to raise or to lower the rate, let the power be vested in the Commission that they may increase, or allow the carrier to increase the rate, as the case may be.

Mr. JONES. That is in both bills now.

Mr. Daish. Yes; but the difference is the difference between one year and two years. However, I do not know that the time is mate

rial, because the Commission has been given the power in both bills to change or modify the order, so that they may say that, upon a hearing or a rehearing of the case and upon a consideration of new evidence, some other fact has entered into the case, and so they may conclude to modify the order a little.

It seems to me that not only do we want legislation, but we want legislation along one of the lines, either of the Nelson bill or of the Elkins bill. There is no great amount of difference in them in substance.

I appreciate this: That the commercial interests of the country when you come to the subject of pooling, a great number of them consider it a dangerous thing. The word "pool" seems to the minds of some people to mean a great big ghost, something that will hit you when you are not looking. I do not want to charge those people with lack of properly investigating transportation matters, but concerning them it is a word which either in itself, or as it is the result of a pool, has done in the past serious injury to no one.

As I said before, it is in the line of aggregation of capital; it is in the line of the regulation of things, setting them in order. But I will say, frankly, that it is considered by a great many people to be objectionable, because their argument to me is that to give the carriers the power to pool would give them such power as would enable them not only to dominate the Commission but dominate the power that created that Commission; and on those lines they have argued to me that a pool is a dangerous thing.

I have not gone very fully into the subject of our grievances, because that has been thrashed over this morning. I think the committee thoroughly understand the question of rebates and discriminations as it has been outlined. Our case was a little different from most cases. Our case

was a discrimination, not against persons or localities, but against a particular commodity. If the committee desire, I can prepare for filing in this record, on behalf of the National Hay Association, something of that kind.

The CHAIRMAN. All right; you can do that, if you like.

Mr. Daish. I have prepared a brief upon the constitutionality, not of any one of these proposed measures, but upon the power of Congress over the Interstate Commerce Commission, which will be filed if you desire.

The CHAIRMAN. Is it in print?
Mr. Daish. It is in print.
The CHAIRMAN. Very well. You may file it.
Following is the brief referred to:

POWER OF CONGRESS OVER INTERSTATE COMMERCE.

Congress has power to constitute tribunals inferior to the Supreme Court. (Cons. U. S., section 8, clause 9.)

To regulate commerce with foreign nations and among the several States and with the Indian tribes. (Cons. U. S., section 8, clause 3, article I.)

The making and fixing of rates is a legislative, and not a judicial, function; and the decisions are uniform in declaring that statutes creating railroad commissions, and giving them the power to make and fix rates, are not unconstitutional as delegating a legislative power which belongs only to the legislature itself. (8 Am. and Eng. Ency. of Law, 911; Chicago & N. W. R. Co. 1. Dey, 4 Ry. & Corp. L. J., 465, 35 Fed. Rep., 866, 2 Inters. Com. Rep., 325, 1 L. R. A., 744; Granger Cases, 94 U. S., 113-187, 24 L. ed., 77–97; State ex rel. Railroad & Warehouse Commission 1. Chicago, M. & St. P. R. Co., 38 Minn., 281, 37 N. W., 782; State ex rel. Board of Transportation v. Fremont, E. & M. Valley R. Co., 22 Neb., 313, 35 N. W., 118, 23 Neb., 117,

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36 N. W., 308; Tilley v. Savannah, F. & W. R. Co., 5 Fed. Rep., 641; Georgia R. Co. v. Smith, 70 Ga., 694; New York & N. F. R. Co. v. Bristol, 151 U. S., 556, 38 L. ed., 269; Reagan v. Farmers' Loan & T. Co., 154 U. S., 362, 38 L. ed., 1014, 4 Inters. Com. Rep., 560, and cases quoted; Ames v. Union P. R. Co., 64 Fed. Rep., 165, 4 Inters. Com. Rep., 835; Interstate Commerce Commission v. Cincinnati, N. 0. & T. P. R. Co., 167 U. S., 479, 42 L. ed., 243; Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S., 197, 40 L. ed., 940; Smyth v. Ames, 169 U. S., 466, 42 L. ed., 819).

When the law has confided to a special tribunal the authority to hear and determine certain matters arising in the course of its duties, the decision of that tribunal, within the scope of its authority, is conclusive upon all others. (Johnson v. Towsley, 13 Wall., 72, 20 L. ed., 485.)

The legislature's determination, either directly or indirectly, of what is reasonable, is conclusive, subject only to charter rights and to the fact that the rates established will give some compensation to the carrier. (Atty. Gen. v. Old Colony R. Co., 160 Mass., 62, 22 L. R. A., 112; Chicago & N. W. R. Čo. v. Dey, 35 Fed. Rep., 866, 2 Inters. Com. Rep., 325, 1 L. R. A., 744.).

The power to regulate is to prescribe the rule by which the commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. If, as has already been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations and among the several States is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions in the exercise of the power as are found in the Constitution of the United States. (Gibbons v. Ogden, 9 Wheat., 1, 197, 6 L. ed., 23, 70.)

It is obvious that the Government, in regulating commerce with foreign nations and among the States, may use means that may also be employed by a State in the exercise of its acknowledged powers-that, for example, of regulating commerce within a State. (Gibbons v. Ogden, 9 Wheat., 204, 6 L. ed., 72.) The power to regulate commerce

amounts to nothing more than a power to limit and restrain it at pleasure. (Gibbons v. Ogden, 9 Wheat., 227, 6 L. ed., 77.)

It may be doubted whether any of the evils proceeding from the feebleness of the Federal Government contributed more to that great revolution which induced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and .all commerce arising among the States. (Brown v. Maryland, 12 Wheat., 446; 6 L. ed., 688.)

The power to regulate commerce includes that of punishing all offenses against commerce. (United States v. Coombs, 12 Pet., 72; 9 L. ed., 1004.)

The design and object of that power, as evinced in the history of the Constitution, was to establish a perfect equality among the several States as to commercial rights, and to prevent unjust and invidious distinctions which local jealousies or local and partial interests might be disposed to introduce and maintain. (Veazie v. Moor, 14 How., 574; 14 L. ed., 547.) Commerce is a term of the largest import.

The power to regulate it embraces all the instruments by which such commerce may be conducted. (Welton v. Missouri, 91 U. S., 280; 23 L. ed., 349.)

The power conferred upon Congress to regulate commerce with foreign nations and among the several States is not confined to the instrumentalities known or in use when the Constitution was adopted, but keeps pace with the progress of the country, and adapts itself to the new developments of time and of circumstances. It was intended for the government of the business to which it relates at all times and under all circumstances; and it is not only the right, but the duty, of Congress to take care that intercourse among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation. (Pensacola Teleg. Co. v. Western U. Teleg. Co., 96 U. S., 9; 24 L. ed., 710.) The power to regulate that commerce,

vested in Congress, is the power to prescribe the rules by which it shall be governed; that is, the conditions upon which it shall be conducted.

The power also embraces within its control all the instrumentalities by which that commerce may be carried on, and the means by which it may be aided and encouraged. (Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 203; 29 L. ed., 161; 1 Inters. Com. Rep., 382.)

When a commodity has begun to move as an article of trade from one State to

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commerce

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another, commerce in that commodity between the States has commenced. (The Daniel Ball, 10 Wall., 565, sub nom.; The Daniel Ball v. United States; 19 L. ed., 1002.)

But this movement does not begin until the articles have been shipped or started for transportation from the one State to the other. (Coe v. Errol, 116 U. S., 517; 29 L. ed., 715.)

This species of legislation is one which must be, if established at all, of a general and national character. (Wabash, St. L. and P. R. Co. v. Illinois, 118 U. Š., 577; 30 L. ed., 251.)

For the regulation of commerce as thus defined there can be only one system of rules applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. (Mobile County v. Kimball, 102 U.S., 691; 26 L. ed., 238.)

The power to regulate commerce embraces a vast field, containing not only many but exceedingly various subjects quite unlike in their nature. (Cooley v. Philadelphia Port Wardens, 12 How., 299, 13 L. ed., 996.)

The power to regulate commerce among the several States is granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations. (Brown v. Houston, 114 U. S., 622, 29 L. ed., 257.)

The uses of railroad corporations are public, and therefore they are subject to legislative control in all respects necessary to protect the public against danger, injustice, and oppression. (New York & N. E. R. Čo. v. Bristol, 151 U. S., 556, 38 L. ed., 269.)

Congress has plenary power, subject to the limitations imposed by the Constitution, to prescribe the rule by which commerce among the several States is to be governed, and may, in its discretion, employ any appropriate means not forbidden by the Constitution to carry into effect and accomplish the objects of a power given to it by the Constitution. (Interstate Commerce Commission v. Brimson, 154 U. S., 447, 38 L. ed., 1047, 4 Inters. Com. Rep., 545.)

The making and fixing of rates by either a legislature directly or by a commission do not work a deprivation of property without due process of law. (Munn v. Illinois, 94 U. S., 113, 24 L. ed., 77; Davidson v. New Orleans, 96 U. S., 97, 24 L. ed., 616; Stone v. Farmers' Loan & T. Co., 116 U. S., 307, 29 L. ed., 636; Dow v. Beidelman, 125 U.S., 680, 31 L. ed., 841, 2 Inters. Com. Rep., 56; Minneapolis & St. L. R. Co. v. Beckwith, 129'U. S., 26, 32 L. ed., 585, and cases cited; Budd 0. New York, 143 U. S., 517,

4 Inters. Com. Rep., 45; New York & N. E. R. Co. Bristol, 151 V. S., 556, 38 L. ed., 269; Reagan v. Farmers' Loan & T. Co., 154 U. S., 362, 38 L. ed., 1014, 4 Inters. Com. Rep., 560.)

The State does not lose the right to fix the price because an individual voluntarily undertakes to do the (public) work. · (Budd v. New York, 143 U. S., 517, 36 L. ed. 247, 4 Inters. Com. Rep., 45.)

The Nebraska statute fixing maximum rates is not obnoxious to the fourteenth amendment. (Ames v. Union P. R. Co., 64 Fed. Rep., 165, 4 Inters. Com. Rep., 835.)

The compelling of railway companies to comply with the order of railroad commissioners regulating rates is due process of law. (8 Am. & Eng. Enc. of Law, 911; Chicago, M. & St. P. R. Co. v. Becker, 32 Fed. Rep., 849; Louisville & N. R. Co. v. Railroad Commission, 19 Fed. Rep., 679, 16 Am. & Eng. R. Cas., 1; Railroad Comrs. v. Oregon R. & Nav. Co., 17 Or., 65, 2 L. R. A., 195, 35 Am. & Eng. R. Cas., 542; State ex rel. Railroad & Warehouse Commission v. Chicago, M. & St. P. R. Co., 38 Minn., 281, 37 N. W., 782; Stone v. Natchez, J. & C. R. Co., 62 Miss., 646; Stone v. Farmers' Loan & T. Co., 116 U. S., 307, 29 L. ed., 636; State ex rel. Board of Transportation v Fremont, E. & M. Valley R. Co., 22 Neb., 313, 32 Am. & Eng. R. Cas., 426; People v. New York, L. E. & W. R. Co., 104 N. Y., 58; State v. New Haven & N. Ry. Co., 37 Conn., 153.)

The principal objects of the interstate-commerce act were to secure just and reasonable charges for transportation.

(Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S., 263, 36 L. ed., 699, 4 Inters. Com. Rep., 92.)

It is difficult to perceive how the power to fix and regulate the charges for such transportation

can be considered in any other light than that of a power to regulate commerce. (Illinois C. R. Co. v. Stone, 20 Fed. Rep., 468.).

It is not doubted that Congress has the power to go beyond the general regulations of commerce which it is accustomed to establish, and to descend to the most minute directions, if it shall be deemed advisable. (Cooley, Const. Lim., 732, quoted with approval by Mr. Justice Field in the case of Gloucester Ferry Co. v. Pennsylvania, 114 U. S., 196, 29 L. ed., 158, 1 Inters. Com. Rep., 382.)

That this power to regulate by fixing charges for interstate transportation is vested solely in Congress by Article 1, section 8, paragraph 3, of the Constitution of the

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36 L. ed.,

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United States, is, in my opinion, equally well settled by numerous decisions of the Supreme Court of the United States. (Mobile & 0. R. Co. v. Sessions, 28 Fed. Rep., 592.)

Several of the State statutes, under State constitutions containing nearly identical provisions on the subject as the Federal Constitution, allowing State railroad commissions to make and fix railway rates for such States, which said rates were to be operative until set aside by the courts, have been upheld as valid and constitutional by the L'nited States Supreme Court. (See Pensacola & A. R. Co. i. State (Fla.), 3 L. R. A., 661, with extensive notes to that case and notes to Winchester & L. Turnp Road Co. v. Croxton (Ky.), 33 L. R. A., 177.)

This Federal Commission has assigned to it the duties and performs for the United States in respect to that interstate commerce committed by the Constitution to the exclusive care and jurisdiction of Congress the same functions which State commissioners exercise in respect to local or purely internal commerce, over which the States appointing them have exclusive control. Their validity in their respective spheres of operation stands upon the same footing. The validity of State commissions invested with powers as ample and large as those conferred upon the Federal Commission has not been successfully questioned when limited to that local or internal commerce over which the States have exclusive jurisdiction, and no valid reason is seen for doubting or questioning the authority of Congress, under its sovereign and exclusive power, to regulate commerce among the several States, to create like commissions for the purpose of supervising, investigating, and reporting upon matters or complaints connected with or growing out of interstate commerce. What one sovereign may do in respect to matters within its exclusive control the other may certainly do in respect to matters over which it has exclusive authority. (Kentucky and I. Bridge Co. v. Louisville and N. R. Co., 37 Fed. Rep., 567; 2 Inters. Com. Rep., 380; 2 L. R. A., 289.)

The power granted to Congress to regulate commerce is necessarily exclusive whenever the subjects of it are national or admit only of one uniform system or plan of regulation throughout the country.

In the matter of interstate commerce the United States are but one country, and are and must be subject to one system of regulation, and not to a multitude of systems. (Robbins v. Shelby County Taxing Dist., 120 U.S., 489; 30 L. ed. 694; 1 Inters. Com. Rep., 45; Stoutenburgh v. Hennick, 129 U. S., 141; 32 L. ed. 637.)

Congress may, under certain conditions, reduce the rates of fare on the Union Pacific Railroad, if unreasonable, and fix and establish the same by law. (12 Stat. L., 497, chap. 120, sec. 18.) This statute is discussed by Mr. Justice Brewer in Ames v. Union P. R. Co., 64 Fed. Rep., 165; 4 Inters. Com. Rep., 835, and held not to conclude the State of Nebraska from fixing rates until Congress takes action.

This act (of Colorado) was intended to apply to intrastate traffic the såme wholesome rules and regulations which Congress two years thereafter applied to commerce between the States. (Union P. R. Co. : Goodridge, 149 U. S., 680, 37 L. ed. 896.)

The Interstate Commerce Commission is an administrative board, and the courts are only to be resorted to when the Commission prefers to enforce the provisions of the statute by a direct proceeding in the court, or when the orders of the Commission have been disregarded. (Interstate Commerce Commission v. Cincinnati, N. 0. & T. P. R. Co. 162 U. S., 184, 40 L. ed. 935, 5 Inters. Com. Rep., 391).

The entire commerce of the United States, foreign and interstate, is subject to the provisions of the act of Congress to regulate commerce. (Texas & P. R. Co. v. Interstate Commerce Commission, 162 U. S., 197, 40 L. ed. 940, 5 Inters. Com. Rep., 405.)

Upon the power of legislatures to fix tolls, rates, or prices, see note to case of Winchester & L. Turnp. Road Co. v. Croxton (Ky.), 33 L. R. A., 177.

A statute imposing a penalty for charging more than just and reasonable compensation for the services of a carrier, without fixing any standard to determine what is just and reasonable, thus leaving the criminality of the carrier's act to depend on the jury's view of the reasonableness of a rate charged, is in violation of the constitutional provision against taking property without due process of law. (Louisville and N. R. Co. v. Com., 99 Ky., 132; 33 L. R. A., 209.) Penalties can not be thus inflicted at the discretion of a jury.

The legislature can not delegate this power to a jury. If it can declare it a criminal act for a railroad corporation to take more than a "fair and just return” on its investments, it must, in order to maintain the validity of the law, define with reasonable certainty what would constitute such “fair and just return.” (Louisville and N. R. Co. v. Railroad Commission, 19 Fed. Rep., 679.)

The Supreme Court of the United States, in Railroad Commission Cases, 116 U. S., 336, sub nom. Stone v. Farmers' Loan & T. Co., 29 L. ed. 646, refers to the last-named case and substantially approves it.

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