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future. This constitutional view was accepted and has been clearly expressed by members of the Interstate Commerce Commission.

În commenting upon these and related judicial utterances, Hon. Martin A. Knapp, chairman of the Interstate Commerce Commission, made the following statement on March 10, 1898, before the Senate Committee on Interstate Commerce (page 9):

One doctrine is now settled—that whereas the investigation of the question whether an existing rate is a reasonable and lawful one or not is a judicial question, the determination of what the rate shall be in the future is a legislative or administrative question with which the courts can have nothing to do.

Again, on page 26 of the same hearing, Mr. Knapp said:

This is the theory of it: This Commission, for the purpose we are now discussing, represents the Congress of the United States, and when it has made an order, in a certain sense it is like an act of Congress.

On page 118 of Hearings before the Committee on Interstate Commerce of the United States Senate, February 20, 1900, Hon. Charles A. Prouty, Interstate Commerce Commissioner, also an attorney at law, said:

The prescribing of a rate is, under the decisions of the Supreme Court, a legislative, not a judicial function, and for that reason the courts could not, even if Congress so elected, be invested with that authority.

At a recent hearing in another place Mr. Knapp said, on page 296:

While the determination whether a given rate is—that is, has been-reasonable or not, is a judicial question, the determination of the rate to be substituted in the future is not a judicial question, can not be made a judicial question, and that authority, if exercised at all under the circumstances, must be exercised either by the legislative body itself or by an administrative tribunal to which some portion of the legislative power is delegated. Now, that being so, of course you must bear this in mind, that it is incorrect and misleading to speak of an appeal from the order of the Commission.

In the recent case of Louisville and Nashville Railroad Company v. Kentucky, decided January 6, 1902, the Supreme Court said:

It is scarcely necessary to say that courts do not sit in judgment upon the wisdom of legislative or constitutional enactments.

In the case of San Diego Land Company v. National City, the Supreme Court of the United States held as follows (174 U. S., 739-75+):

Judicial interference should never occur unless the case presents clearly and beyond all doubt such a flagrant attack upon the rights of property under the guise of regulation as to necessarily have the effect to deny just compensation for private property taken for public use.

Similar judicial opinions are abundant and need not be cited here.

An exceedingly able and distinguished lawyer, who has given practically his entire time to the study of transportation questions since the act to regulate Congress was passed, has recently expressed the following opinion upon this vitally important point:

As the power to make future rates is a legislative power, Congress can not, in my opinion, constitutionally confer upon the judicial department any power to review or reverse the action of the Commission in making future rates. The only power that would be left to the judiciary or that could be conferred upon the judiciary by Congress would be the power to decide whether those rates (made by the Commission) were confiscatory in character.

And again:

No court can determine whether an act of Congress is upon the facts unjust or unreasonable or whether an act has been passed under some error of law.

In an

While it is unquestioned constitutional law that no carrier can be compelled to carry freights at rates which are in effect confiscatory, yet a broad line of distinction lies between remunerative and confiscatory rates, which in practice excludes the courts from the power to condemn any rate made in pursuance of legislative enactment upon the ground that it is unjust or unreasonable. Without doubt the discretionary power proposed embraces the entire range of commercial profits which in practice justifies both the construction and the operation of railroads. In a word, it is an absolute and practically autocratic power.

The idea that the Federal judiciary will ever allow itself to be used for the purpose of eliminating its own authority in the realm of justice seems too preposterous for serious consideration. It can be safely predicted that in reply to any such proposition the judiciary would again be forced to the indignant exclamation, “Could anything be more absurd ?”

I think, Mr. Chairman, that certain members of the Interstate Commerce Commission are fully aware of the import of the bill now before you as I have stated it, namely, that it eliminates the judiciary and confers upon the Commission practically autocratic powers, and have been forced to the conclusion that it is impracticable. address delivered before the Illinois Manufacturers' Association on April 2, 1902, Mr. Commissioner Prouty said:

Personally I have for a long time insisted that these questions could only be properly dealt with by the creation of a new and special tribunal for that purpose.

And on page 238 of the hearings, in another place, Mr. Prouty said on April 22:

I think if you could create a special court which dealt with these questions alone, which was chargeable in the public mind with the proper disposition of these questions, and which would speedily become an expert body, you would solve that difficulty.

Governor Fifer, also an Interstate Commerce Commissioner, indicated the same purpose, and pointed to the deterrent influence of judicial procedure, an expression of governmental authority which does not attach to mere administrative authority. The same idea was expressed to me several years ago by another member of the Commission.

In a word, too, the Commission appear already to see the absurdity involved in the autocratic control of the commercial and transportation interests of this country freed from all judicial restraint.

There is no intimation of any such grant of power in the act to regulate commerce. This was emphatically declared by the Supreme Court of the United States in the Maximum Rate Case (167 0. S.) and the fact that ample remedy for all the evils complained of is afforded by section 16 of the interstate-commerce act is indicated by Judge Grosscup in his recent judicial utterance at Chicago.

MERITS OF THE QUESTION INVOLVED. And now I come to the merits of the whole contention, namely, the question as to whether the grounds of complaint are of such a character and are sufficient in importance to justify the action proposed in the Corliss bill. The question at issue relates to three causes of complaint, namely: (1) Discriminating rates; (2) exorbitant rates, and (3) violations of published or legal rates.

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First I invite your attention to the subject of


On April 16, 1900, Senator Elkins, then a member, and now chairman, of this committee, introduced in the Senate a resolution calling upon the Commission for the following information:

The total number of cases heard and determined by the Commission during the last ten years, the number of such cases which have been appealed to the courts, the number of such cases in which the decisions of the Commission have been sustained, the number of such cases in which the decisions of the Commission have been reversed, and the number of such cases which have not been determined.

This resolution was at once considered and agreed to. It is known as Senate resolution No. 267, Fifty-sixth Congress, first session. On the 28th of April the Interstate Commerce Commission transmitted its reply to the Senate (Senate Doc. No. 319, Fifty-sixth Congress, first session). From this answer the history of the cases decided from April 16, 1890, to April 16, 1900, appeared to have been, summarily, as follows: Total number of cases decided by the Commission.

180 Number appealed to the courts

35 This showed that in the millions of freight transactions in the United States during the ten years from April 16, 1890, to April 16, 1900, only 180 cases, or 18 a year, came to a hearing, and that of these only 35, or 34 a year, were appealed to the courts, of which in only 4 cases in ten years was the Commission sustained by the courts.

The 35 cases appealed to the courts during the ten years were disposed of as follows: Commission sustained Commission reversed.

17 Cases pending. Cases withdrawn

Total ..... The above result showed that of the 21 cases appealed from the decision of the Commission to the courts and decided, the Commission was overruled in over four-fifths of those cases. This, in connection with the fact as to the small amount of litigation involved, was exceedingly detrimental to the claim of the Commission.

The bill (S. 1439, Fifty-sixth Congress, first session) was reported adversely from the Senate Committee on Interstate Commerce and failed of consideration in the Senate.

In its last annual report the Commission says, “The great mass of complaints are handled and disposed of by the Commission by preliminary investigation and correspondence. The total number of proceedings brought before the Commission during the year were 340, but only 19 formal proceedings were instituted before the Commission, or only one in 18 of the complaints preferred. There were only ten cases decided by the Commission during the year, or one in 34 of the complaints entertained. Of the ten cases decided seven were cases of unjust discrimination. "This admirable result indicates the high degree of perfection to which the railroad system of the country has attained. It is also creditable to the cet to regulate commerce and to its administration.





In an argument which I had the honor to make before the Senate Committee on Interstate Commerce on April 3, 1894, I was able to present the following statement:

In the exercise of its function of preventing unjust discriminations and exorbitant charges the work of the Interstate Commerce Commission has been crowned with abundant success. Although several hundred complaints as to alleged violations of the act to regulate commerce were made during the year ending December 1, 1893, only sixteen cases came to a formal consideration and hearing, all the rest having been settled by the mediatorial offices of the Commission. In only one of the cases decided was the reasonableness of rates called in question, and in that single instance the claim was decided to be not well founded. One of the Commissioners has informed me that only about two-thirds of the cases decided sustain the charges preferred. This indicates that the actual number of proven cases of unjust discrimination did not exceed eleven and constitutes a most gratifying proof of the success of this nonjudicial tribunal in the exercise of its appointed function. Mr. Chairman, I venture the assertion that no court in this country inferior to the Supreme Court of the United States has had so few cases appealed from its decision in a single year.

All this proves beyond question that unjust discriminations and preferences of all sorts have been reduced to a minimum, and that they furnish no reason whatever in justification of the appeal of the Commission for more power. This the Commission practically concedes. Accordingly it has abandoned unjust discriminations in rates as a basis for its demand for autocratic powers, and now bases such claims almost, if not exclusively, upon rate cutting.


In its seventh annual report, submitted December 1, 1893, the Commission said at page 12: "To-day extortionate charges are seldom the subject of complaint.” In its twelfth annual report, submitted January 9, 1899, at page 27, the Commission said: “It is true, as often asserted, that comparatively few of our railway rates are unreasonable.” From time to time the Commission has had quite a good deal to say about "unreasonably low rates."

In its last annual report the Interstate Commerce Commission stated that the total number of proceedings brought before the Commission during the year was 340. These include formal as well as informal complaints. But only ten decisions were rendered by the Commission during the year, all of which were on formal complaints. Of these, however, only two involved unreasonable or exorbitant rates, or one in 170 complaints.

On March 18, 1898, Hon. Martin A. Knapp, the present chairman of the Interstate Commerce Commission, stated before the Senate Committee on Interstate Commerce that “the question of excessive rates--that is to say, railroad charges--which in and of themselves are extortionate, is pretty much an obsolete question."

The Supreme Court has in no case decided that a rate charged was in itself exorbitant, and I think I am not mistaken in saying that the question as to the reasonableness of any rate per se has never been presented to that court. I think also that I am not in error in stating that no rate has ever yet been proven to be unreasonable in the lower Federal courts.

The record of constantly reduced freight charges in this country since the year 1870, as published by the Interstate Commerce Commission and by the Bureau of Statistics of the Treasury Department, affords overwhelming proof not only of the fact that rates are not excessive, but also that they are very low. During the last thirty years rates have steadily declined in every section of the country. This is shown on page 397 of the Statistical Abstracts for 1901 as follows:

The average receipts per ton per mile on railroads of the United States during the years

1870, 1890, and 1900.

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The average charge per ton per mile for the United States fell from 1.99 cents in 1870 to 0.70 cent, or 7 mills per ton per mile in 1900. This shows that the average rate in 1900 was only a little more than one-third of the average rate in 1870—thirty years ago.

At the same time the facilities for railroad transportation have been enormously increased and wonderfully improved. The service during the year 1900 was very much more efficient than in 1870.

The following table compiled from the data of the Interstate Commerce Commission for the years 1890 and 1900 indicates the fall in rates by groups and for the whole country. It closely verifies the statement made by the Bureau of Statistics:

Revenue per ton per mile charged by railroads of the United States according to statistics of

the Interstate Commerce Commission.

[Data from page 72 of report for 1890 and from page 95 of the report of the Commission for 1900.]

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The facts thus stated prove beyond all doubt that in all our splendid American railroad system embracing about 200,000 miles of road, over which moves about $25,000,000,000 worth of merchandise annually or more than twice the value of the entire railroad system of the country, and involving millions of transactions every year, only 34 cases a year of unjust discriminations were proven in formal hearings before the Commission during the ten years from April 16, 1890, to April 16, 1900, a fact stated by the Interstate Commerce Commission in Senate Document No. 319 of the Fifty-sixth Congress, first session. Of this small number less than one case a year of unjust discrimina

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