terized by an energy and persistence which, if rightly employed, would have resulted in the substantial enforcement of the present law in all respects. It has devoted much of its recent annual reports to arguments in support of its desire for the rate-making power. Some of its members have urged similar arguments in newspaper interviews, magazine articles, and public addresses. Two years ago the Commission, in its official capacity, sent out a circular soliciting support for what was known as the Cullom Bill, which proposed to confer this rate-making power. Two of its members have assisted in the preparation of a bill, recently introduced in the House of Representatives by Mr. Corliss, which confers substantially the same rate-making power, but in different language. Since the beginning of the present session of Congress the Commission has had public hearings in Chicago and Kansas City at which it has investigated the failure to maintain tariff rates in that region on packing-house products and on grain and grain products. This was presumably for the purpose of giving a carefully timed object-lesson of its long-standing contention that the present law cannot be enforced. The Commission delayed the publication of its annual report, apparently so as to get the full benefit of these belated disclosures, although substantially the same facts have no doubt been fully known to it for several years past. Of course, it followed up this showing by its usual contention that it should be given the rate-making power, although there is no imaginable way in which the rate-making power can avoid or diminish secret rate-cutting.

Next in importance to the unfounded claim that the present law is worthless is the equally incorrect assertion that the proposed power is in no sense a general rate-making power. The Commission itself, however, has afforded a complete and striking refutation of this last assertion. Several years ago, in the assumed exercise of the precise power which the pending bill proposes to confer, the Commission, upon complaints filed by the freight bureaus of Cincinnati and Chicago against. about thirty-five carriers, found that the rates on some 2,000 articles. from Chicago and Cincinnati to Knoxville, Chattanooga, Rome, Atlanta, Meridian, Birmingham, Anniston, and Selma were unlawful; ordered them to be reduced to the figures prescribed by it; and further required the carriers to readjust their tariffs to other Southern points to make them bear a due and proper relation to the rates thus fixed. This order, if it had been within the Commission's power, would have resulted in corresponding reductions from all other places in the East, North, and West to Southern points, and thus would have changed the rates upon

a very large percentage of all the traffic in this country, besides affecting indirectly many other rates. This order constituted such a striking evidence of general rate-making that the Supreme Court was moved to remark:

If the power exists as is claimed, there would be no escape from the conclusion that it would be within the discretion of the Commission of its own motion to suggest that the interstate rates on all the traffic in the country were unjust and unreasonable, notify the several roads of such opinion, direct a hearing, and upon such hearing make one general order reaching to every road and covering every rate.

The Supreme Court further suggested that authority of this char

acter

having respect to the large amount of property invested in railroads, the various companies engaged therein, the thousands of miles of road and the millions of tons of freight carried, the varying and diverse conditions attaching to such carriage, is a power of supreme delicacy and importance (167 U. S. 479).

This single illustration, drawn from actual practice, overthrows all the sophistries to the effect that "the proposed power could be exercised with respect only to the single rate complained of "; that "general ratemaking is so extensive that it is absurd to presume the Commission would attempt to exercise it "; and that "no power to make rates primarily or in the first instance is to be conferred."

In another case, the Commission, upon complaint as to the firstclass rate from Cincinnati to Atlanta, fixed a substantially lower rate between those points on the several hundred articles in the first class. If this rate had become effective, it would have indirectly compelled corresponding changes throughout almost as wide a territory as in the first case mentioned, in order to preserve the established rate relations, which long commercial usage had determined, between different localities.

This unrestricted power to prescribe rates, classifications, and practices would be practically limited by the Commission's discretion only. No judicial review is, or can be, provided under which the courts could correct any unwise or injurious orders that the Commission might make, except in cases amounting to a direct and palpably excessive reduction of the carriers' revenue. For practical purposes there would be no judicial. interference on account of indirect injury which might result to the carriers or at the instance of localities which might be injured by the Commission's orders although there is now a substantial opportunity to correct an injury done to a locality through rates fixed by the carrier- or generally in any case where flagrant injustice could not be shown. In other words, the Commission would be vested absolutely with a tremendous

margin of discretion. The Commission no doubt fully recognizes this, as it has intimated in one of its recent annual reports that the judicial review “would not probably embarrass the practical operations of the law." Therefore, despite reiterated representations to the contrary, t , the proposition is to give to the Commission an almost unlimited authority not merely over the welfare of nearly 200,000 miles of railroad, but over all the commercial and industrial interests of this country. The proposition is not to transfer this power from the railroads to the Commission, because the railroads do not now possess it. Their unjust acts are in every instance subject to correction under the law. The unjust acts of the Commission would be subject to no correction, except in cases of flagrant and palpable abuse of power.

The argument in favor of creating this stupendous power and conferring it upon the Commission rests upon the assertion that the courts have destroyed the power of the Commission and rendered it impossible to enforce the present law. The fact is that courts have not impaired a single power conferred, or intended to be conferred, upon the Commission; and the law is at present susceptible of substantial enforcement. The ratemaking power could have no possible tendency to promote the maintenance of tariff rates. Its purpose would be to prevent rates named in tariffs from being unreasonably high or unduly preferential as between different persons, localities, or classes of traffic.

The present law prohibits every unreasonable or unduly preferential rate, and empowers the Commission, upon or without complaint, to investigate any rates supposed to be unlawful, and, if they are found so to be, to order the carriers to desist from charging those rates in the future. If the carrier fails to obey the Commission's order, the Commission or any party interested may resort for its enforcement to the proper circuit court, whose duty it is to afford a speedy hearing. Upon this hearing the Commission's findings shall be prima facie evidence as to every fact. In other words, the carrier must assume the burden of showing that the Commission's findings are wrong. Unless he can make this showing, the court enters a decree compelling obedience to the Commission's order. No appeal by the carrier can suspend or postpone the taking effect of the circuit court's decree. Whenever the Commission sees proper to institute these proceedings in its own name, they are conducted at the expense of the Government, not at the expense of the parties complaining.

Since this method of correcting extortion and unjust discrimination has been deliberately adopted by Congress, it should not be contemptu

ously thrown aside as utterly worthless until upon actual and thorough trial it is proved to be ineffectual. Yet, remarkable and preposterous as it may be, the fact is that the Commission has condemned this procedure as puerile and worthless, in the absence of any actual experience whatever to that effect. The only rational way of determining the efficacy of the remedy prescribed by the law is to try it. To prove that the remedy is useless, the Commission should show that its orders condemning rates as unreasonable or unjustly discriminatory have been taken into court and their enforcement decreed, and then that the carriers have technically complied with those orders by making immaterial changes only. It should, moreover, make this showing not merely in some isolated case, but, after a thorough trial of it, in numerous

cases.

Yet there is not a single case where this showing can be made. The carriers have complied with most of the Commission's orders; the Commission has not tried to enforce some of those not complied with; and those of the Commission's orders which have been taken into court have been declared by the court, in almost every instance, to be in plain conflict with the principles and procedure of the law-not because the Commission is without the power to make valid orders, but because it has persistently insisted on making orders which were not in accordance with the law. In the one or two instances in which the courts have found the orders of the Commission in accordance with the law, and have therefore enforced them, the carriers have substantially complied with the orders of the courts. This record not only fails to show that the remedy prescribed by Congress is senseless and unavailing, as the Commission insists; but it further shows that the Commission has been grievously at fault in refusing to confine itself to the plain jurisdiction conferred upon it by the act. The long delays in court to which the Commission has so often and so feelingly referred have been incurred in cases where the Commission was in the wrong; and they do not tend to show that there would be any unreasonable delay whatever if the Commission would proceed to enforce the act in accordance with its provisions.

In the absence of actual demonstration to the contrary, all presumptions should be in favor of the efficacy of the remedy prescribed by Congress rather than against it. There is no reason whatever to assume that railroad companies would invite additional litigation by giving a merely nominal compliance with judicial decrees enforcing the act, or, for that matter, with orders of the Commission made in accordance with

the act. On the contrary, it would be clearly in accord with ordinary business prudence for the railroads to comply in a substantial manner in order to avoid the necessity for further litigation. It is certainly absurd, in the utter absence of any actual experience, to brush aside all these presumptions in favor of the efficacy of the remedy prescribed by Congress and condemn it as wholly worthless.

The Commission has preferred, however, to devote its time to criticising the courts for restricting it to the plain procedure laid down by the act, and to arguing that that procedure was necessarily useless. It has created and encouraged this erroneous belief on the part of the public. A striking illustration is afforded by the numerous complaints which were made to the Commission about two years ago, with regard to increases in rates due to changes in classification. The Commission sought to make the impression that it was without the power to assist in obtaining relief. In its annual reports it made elaborate attempts to prove that the increases in rates due to these changes in classification were unjust and indefensible; but it seems to have wholly refrained from exercising the undoubted power which it had to prohibit the continuance of the improper classifications or unreasonable rates. The Commission, while publicly charging the carriers with having made by this method unjust increases in their rates, nevertheless refrained from making orders which would necessarily have corrected that condition if it really existed.

In view of this apparently practicable and reasonable method of correcting unlawful tariff rates—a method which has never been proved to be inadequate it would seem that there can be no valid excuse whatever for conferring upon the Commission the tremendous authority involved in the grant of power to prescribe rates, classifications, and practices. This is especially true in view of the further fact that there is no serious pretence that tariff rates are prevailingly excessive or unjustly discriminating. On the contrary, rates are remarkably low; and discriminations, so far as tariff rates are concerned, either between different localities or between different classes of traffic, are comparatively few. But whether such instances are few or many, there is a complete remedy under the present law. The real transportation evil, however, is that of discriminations between different persons, localities, or classes of traffic due to secret departures from tariff rates, which cannot possibly be prevented or diminished by the grant of the rate-making power. The Commission might, in pursuance of the proposed legislation, find all the interstate rates in the United States unlawful, and in effect prescribe