England is concerned, the attempts to obtain cheap settlements, in the face of the existing involved body of railway law, would mean, if successful, results of little worth. In the United States the Federal courts have recognized the debt of the Act to Regulate Commerce to the English regulative legislation. But, when comparison is made of the constitution and functions of the English Commission with those of the Interstate Commission, differences at once appear. The English Commission is a court. The American Commission has the functions of a referee or special commissioner. The former has final decision in regard to fact and a limitation on the right of appeal, with the result that appealed cases are normally settled within a year. The latter has no finality of decision in regard to fact, and appeals from its decisions have taken from two to nine years to decide. While the English Commission has been overruled in the period ending 1904, wholly or partly, in six out of thirty-eight appeals, the American Commission has, in approximately the same period, been overruled in twenty-nine out of thirty-eight appeals. While the Interstate Commerce Commission has, practically from the outset, claimed, as a necessary implication from the language of its enabling statute, an amendatory rate-making power, the English Commission, organized as a court, has, almost without exception, kept aloof from making implications extending its jurisdiction, and has denied any intention to exercise a rate-making power. While the members of the American Commission hold on a limited tenure and the Commission is a bipartisan organization, the tenure of the lay commissioners in the English Commission is for good conduct, there is a pension on retirement, no question of bipartisan organization enters in, and the provision is made that one of the commissioners shall have technical knowledge of railway affairs. The judicial members of the English Commission are assigned to it for five years; but during the period they are not engaged in the Commission work they perform their regular duties as judges of the high court. 1 See Table III. See also Appendix D, Vol. V, p. 331, Hearings of Committee on Interstate Commerce, etc., 1905. In the details of the regulative policy which has developed under the Commissions, resemblances and differences appear.1 The English regulative policy is not in harmony with that of the United States in regard to the extent to which competition is to be considered as a justification of rate anomalies. While the English legislation eliminates competition in the case of import rates, the American position, as established in the Import Rate case, states that competition is to be considered as affecting both import rates and domestic rates. In the case of domestic rates the English Commission at first would not recognize competition as the justification of an anomalously low rate basis unless a well-defined "public interest" was thereby served. Later it accepted the same view as was set forth in the United States in the Alabama Midland case; namely, that competition is one of the matters which may lawfully be considered in making rates. The grievance of secret rebates, one of the central evils in the United States, is practically nonexistent in England. There is no provision other than that of the undue preference clause to cover such a grievance. In both countries the principle that undue preference is a question of fact has been accepted. While the United States has singled out a particular form of preference for special treatment under the "long-and-short-haul" clause, England has allowed more elasticity by placing the matter under a general clause. On the question of the justifiability of granting wholesale rates in respect of quantities larger than car-load lots, the American decisions have been contradictory. The lower courts have shown a tendency to accept the decision in Nicholson's case, but in the Party Rate case the Supreme Court estab lished as the law that a discrimination in respect of quantity, even if allowed to all doing the same amount of business, is to be considered from the standpoint of public policy and the effect of such an arrangement upon trade competition.2 In so deciding 1 There is no recognition, in the working of the English Commission, of results arrived at in the regulative policy of the United States. 2 I. C. C. v. Baltimore & Ohio Rd. Co., 145 U. S. 263. This upholds the general position taken at an earlier time by the Interstate Commerce Commission in Providence Coal Co. v. Providence & Worcester R. Co., 1 I. C. C. Decisions, 363. See also Judson, The Law of Interstate Commerce and its Federal Regulation, p. 194. there has been accepted as a principle what is, so far, only a tendency in the English regulative policy. The dissimilarities of the matters dealt with by the two Commissions will be seen by referring to Table I. The items common to the two Commissions are legality of rates, unreasonable rates, reasonable facilities, and undue preference.1 In all, about one half of the applications made to the English Commission are concerned with matters of a kind coming before the American Commission. The English Commission has used two sets of rate principles: competition as an important factor in differential rates, export rates, and in general in the home side of undue preference; cost of service in regard to preferential rates, and unreasonable rates. This has been in great degree attributable to the legislation. The traders have desired free trade in exports, not in imports. Admitting that there has been a certain judicial bias in favor of the cost-of-service principle, it is at the same time apparent that legislation, like that of 1894, which makes a past rate the prima facie criterion of reasonableness rules out the possibility of considering present competition. The defects of the legislation of 1894 are its own. The Commission has made the legis lation less unworkable than could have been expected. A considerable part of the desire to control and lower actual rates in England pertains to that hysterical belief in England's industrial decadence which has found some favor in recent years. A considerable part of the criticism arises from the endeavor to prove, on the basis of foreign statistics not properly comparable with English statistics, that English rates are unduly high. Some rearrangements in the Commission's machinery would, however, effect improvements. An arrangement whereby, when a question of principle is established in a decision of the Commission as distinct from a mere finding on facts, the enforcement should be placed in the hands of the Board of Trade 1 I omit sidings' rent (demurrage) charges, because the conditions under which these arise in England differ entirely from those existing in the United States. instead of leaving it as a question of possible dispute to be fought out in individual cases, would effect an improvement. A closer articulation of the conciliation procedure of the Board of Trade with the process of the Commission, whereby the findings of the former would have a status before the latter, would also be expedient. The Commission is becoming more and more a technical court, whose decisions are modified by an attempt to obtain settlements rather than legal decisions. Notwithstanding the criticism directed against it, it is difficult to see how, considering the peculiar geographical, industrial, and railway conditions it has faced, the Commission could have accomplished more than it has done. LELAND STANFORD JR. UNIVERSITY S. J. MCLEAN |