and planted them elsewhere, and so given other merchants than those of the first commercial centre a chance to grow rich? Is it not, in other words, not because they have, but because they have not made arbitrary centres and "diverted trade from its natural channels," that they are put under the centralized dictatorship and power of an Interstate Commission? The Almighty set the bounds within which the Atlantic Ocean and Lake Michigan roll and fret. If Senator Cullom states facts when he says that railways built by human hands can divert trade from its natural channels and create by favoritism natural centres of trade, then it is unjust and monstrous that these railroads should still operate themselves on the Scriptural principle, "that to them that hath shall be given, while from them that hath not shall be taken away even that they hath"; and still wickedly cater to the Atlantic Ocean and Lake Michigan ports (which were there before the railways were built), instead of equalizing matters and making tradecentres for the interior where there are no Atlantic Oceans and Lakes Michigan. Why should the railroads cruelly carry trade to and from those ports which are already trade-centres by reason of their waterways? Let the railroad companies be just and fair. To be sure, railways in Europe still despotically carry to Liverpool, Antwerp, Marseilles, but this is a land of equal rights. Let all its citizens have equal privileges, and equal opportunities of getting rich. The New York merchant and the Chicago merchant have grown rich because they have the Atlantic Ocean and Lake Michigan over which to do business. Now let the railways (who have only, according to Senator Cullom, to turn their hands over to oblige us) build some trade-centres for the honest farmer, or the interior merchant. Let us have as many trade-centres as we have watering-places, for example, until this nation, where the people make the laws and own themselves, becomes the land of trade-centres! And if the coarse and brutal railway company -owned by the grasping and bloated capitalist, the heartless Gould, or Vanderbilt, or Huntington, or Garrett—will not give us any trade-centres, let us petition the Interstate Commerce Commission, that these men and their soulless companies cease to

dominate and despotize over this republic, and build us tradecentres wherever we want them; and, if they then refuse, let the Commission itself designate the points where our trade-centres shall hereafter erect themselves, and to which our railways shall build their track.

The simple, honest truth is that railways, like natural persons, must live by doing what is set before them; that however their tariffs are regulated, whether discriminations by rebates and drawbacks are allowed or disallowed, whether they are ordered to charge more for the long haul or the short, whether passes are given to shippers or refused-the railway must do the business the people bring to it, or go into bankruptcy and wind up. If grain seeks Chicago, if beef seeks New York, if cotton seeks New Orleans-to Chicago, New York and New Orleans must the railway haul these products. It cannot carry them to Milwaukee, to Albany, to Mobile. And, moreover, to pay its fixed charges, the railway company, like any natural person, must take the business it pays it to do, and reject that which will not pay it. Neither a railway company, nor all the railways on this continent, nor yet the Interstate Commerce Commission, nor any merely human agency can make a trade-centre. It is a disappointment, no doubt, that this is so; that toward points already favored with ample water communication, and to those only, will railroads extend their tracks, and ultimate their systems. But, even though that disappointment be crystallized in penal and prohibitory legislation, such indeed has always been the vital principle of self-preservation in the railway, as in the human system and such indeed, I fear (especially since Judge Deady has held judicially that railways have a right to live), will always be the rule, whether or no this people's antidote for their disappointment be to place the railroads in charge of changing administrations at Washington, or whether tariffs will be more reasonable when left to politicians than to railway experts.

CHAPTER XIII.

THE LOUISVILLE AND NASHVILLE DECISION.

THE Interstate Commerce Act was the concentration of popular forces, which had for years fought railway incorporations in our legislatures and in our courts: the crystallized expression of fifty years of popular discontent with railway management throughout this Republic. The people, therefore, looked to the first utterance of a commission created to administer it, for arraignment of the wrecked railways for that disregard of popular rights, that high-handed indifference to law, and supercilious contempt for the non-railway element in the community, with which they had been so often charged-that should be scathing in its terms, and triumphant in its justification of the government's constitutional right to assume control of a private interest, and to take the first step toward that centralization which Washington deprecated in prospect, which Jackson scotched in its birth, and from the possibility of which a bloody and costly civil war was supposed to have finally relieved.

That oppor

The opportunity for such first utterance came. tunity was the presentation of a petition, on the part of one of the corporations brought under the paternal power of the commission,—the Louisville and Nashville Railroad Company,—for relief from the operation of so much of the fourth section of the Act as prohibited railway companies from charging more for the "short haul" than the "long haul,”—a prohibition which was and is the gist of the Interstate Commerce Act, and which opens up the entire question of the right of a railway company to judge for itself as to its right to live, operate its roadway, to pay its fixed charges, or generally conduct the business for which the people had incorporated it.

The commission heard the petition aforesaid and duly promulgated its opinion. But upon promulgation, the opinion, so far as

any crimination of the railway companies or any indication of the constitutionality or policy of the law was concerned, turned out to be as unsatisfactory to the non-railway public as Balaam's cursing of Israel was to Balak. "What hast thou done unto me?" cried the disappointed king. "I took thee to curse mine enemies, and behold, thou hast blessed them altogether." The first pronouncement of the Interstate Commerce Commission begins with an apology for not interfering with the railway companies, which, to say the least, was unique in juridical liter ature. It declared (p. 5*), that "if the commission were to perform the inquisitorial duties imposed upon it, it would be compelled to forego the performance of judicial and other functions which by the statute were apparently assumed to be of high importance, and even then its authority to grant relief would be performed under such circumstances of embarrassment and delay that it must in a large measure fail to accomplish the beneficial purposes which it must suppose the statute had in view." The commission deprecated any performance under its inquisitorial function, since that function" in a single case might require for its proper determination the taking of evidence all the way from the Pacific to the Atlantic; and this not merely the evidence of witnesses for the petitioning carrier, but of such other parties as might conceive that their interests or the interest of the public would be subserved either by granting the relief applied for, or denying it" (p. 5). Certainly, nobody can blame the commission for preferring to sit cosily in Washington and exercise judicial functions than to take testimony not only of the parties before the commission, but of any party who might consider himself aggrieved by any act of a railway company or by any proximate or remote effect of such act or its theory, from Maine to California. And, even should the commission be able to decide the matter before it without the bother of hearing testimony, the commission admits that "an adjudication upon a petition for re

*The references are to the official copy of the opinion printed at the Government Printing-Office, Washington, 1887. See post. Appendix.

:

lief would in many cases be far from concluding the labors of the commission in respect to the equities involved: for questions of rates assume new forms, and may require to be met differently from day to day and in those sections of the country in which the reasons or supposed reasons for exceptional rates are most prevalent, the commission would, in effect, be required to act as rate-makers for all the roads, and compelled to adjust the tariffs so as to meet the exigencies of business while at the same time endeavoring to protect relative rights and equities of rival carriers and rival localities." "This [and here is a touch of nature which shows, at any rate, that an interstate commissioner's life threatened at the very outset to be no bed of roses] in any considerable state would be an enormous task. In a country so large as ours, and with so vast a mileage, it would be superhuman. A construction of the statute which should require its performance would render the due administration of the law altogether impracticable" (p 5) says the commission finally. And yet if the Interstate Commerce Act means anything, it means just what the commissioners, in their first decision, declared to be impracticable, -superhuman and impracticable! Here are seven commissioners, at a salary of seven thousand five hundred dollars per annum, launched with an appropriation of one hundred thousand dollars from the people's treasury, and on that equipment expected to supervise the hourly business of a continent at present in the hands. of perhaps a couple of thousand auditors, with a combined staff of a hundred thousand clerks and agents-with salaries ranging from twenty thousand dollars downwards, and overworked at that! But to proceed with examination of the opinion. Having frankly admitted that to endeavor to discharge the functions it was organized to administer would be superhuman and an impossible task, the commission sets to work, as in duty bound, to find something to do. It is legally bound to assume that it was created for a possible purpose, to do something not superhuman. And so the commission, groping, as it frankly admits, in the dark, strikes at last upon the clause, "under substantially similar circumstances and conditions," and finds at last a foothold. Surely, it says, "if the