effective action. That blow was struck by the Supreme Court late in 1897, in the Alabama Midland case1 which involved the interpretation of Section 4, the Long-and-ShortHaul clause. But before presenting this case, it will be well to trace the history of the Commission's struggle to apply the section effectively. In one of the earliest cases decided, the Commission, recognizing that the prohibition voiced in Section 4 applied only where circumstances and conditions were essentially similar, declared that the carriers might judge as to the similarity or dissimilarity in circumstances in the first instance, such judgment being subject to review and amendment on the part of the Commission itself. The Commission recognized two factors as constituting dissimilarity-the competition of carriers, both water and rail, not subject to the Act, and "rare and peculiar" circumstances governing among carriers under the statute. Upon this basis, Section 4 of the Act was administered without serious challenge until 1892 when the first difficulty arose the meaning of "line" in the phrase "over the same line."

One Osborne sought repayment, because of an alleged overcharge upon a shipment of corn from a point in Iowa to Chicago, by the amount that it exceeded that portion of the through rate from a more distant point, Blair, Nebraska, to New York City which was assignable to the movement west of Chicago. Although the holding of the Circuit Court of Appeals 2 in this case was in accord with previous conclusions, both of the courts and the Commission, in that the claim was disallowed, obiter dictum again gave rise to difficulty. In this excess verbiage the court suggested that a joint line formed by two roads is quite distinct from the component roads and that there was nothing in Section 4 to prevent a joint rate from being as low as, or even lower than, an included local rate on either line. 1 Interstate Commerce Commission v. Alabama Midland Railway Company, 168 U. S. 144.

2 Chicago and North Western Railway Company v. Osborne, 52 Federal Reporter 912.

The apprehension of the Commission that this interpretation might be used to nullify the purpose of the Long-andShort-Haul clause was quite justified. It opened the door to innumerable evasions, for as many "lines" were now declared to exist over a single set of rails as there were traffic agreements. The lower courts accepted this obiter dictum in such a way as to embarrass seriously the enforcement of Section 4; more, they so enlarged upon it that the intrastate portion of a movement was freed from the jurisdiction of the Act when the total interstate rate was ascertained by adding to any interstate rate, covering a part of the movement, an intrastate rate governing the remainder of the movement.

Not until 1896 in the Social Circle case1 was this question finally decided by the Supreme Court. At the request of the railway serving that point, connecting carriers had refrained from quoting through rates to stations on that line and the United States Circuit Court, in conformance with the reasoning found in other cases, held that the railway in question was not subject to federal jurisdiction as to rates which violated the Long-and-Short-Haul clause. This decision was reversed by the Supreme Court, however; it held that, while no road could be compelled to enter into agreements with connecting carriers, traffic moving to a local point upon a through bill of lading which covered an interstate movement was subject to the Act to Regulate Commerce. The high court went still further: it declared that, in the case of a shipment over several roads, these roads constituted but a single route and were in no sense separate lines; in consequence, rates to included points must conform to the requirements of Section 4 except as conditions are shown to be dissimilar. This represented a complete vindication of the Commission in its interpretation of the word "line" and promised to reestablish its control over this type of place discrimination. Such hope was not to be realized, 1 Cincinnati, New Orleans and Texas Pacific Railway Company v. Interstate Commerce Commission, 162 U. S. 184.

however, for a new attack was successful in knocking the entire section into a cocked hat.

EMASCULATION OF FOURTH SECTION

From the earliest application of Section 4, the railways had contended that competition of carriers subject to the Interstate Commerce Act made for dissimilarity within the meaning of the law. This contention the Commission refused to accept as sound and, when the railways showed an inclination to regard even the slightest variations in conditions as "rare and peculiar," hence justifying exception to the law, the Commission reversed its earlier policy of permitting the carriers to determine what constituted dissimilarity and took that privilege to itself. In passing upon petitions for exceptions which came before it, the Commission was controlled by a desire to so interpret and apply the Long-and-Short-Haul clause as to accomplish in some measure the purpose which actuated Congress to pass it, namely, the elimination of wholly indefensible instances of place discrimination. The protests voiced against this abuse had been most vigorous, and it was clear that more than a mere "slap on the wrist" was expected from the Commission by the advocates of the section, in Congress and out. However, the Alabama Midland decision left the Commission scarce the power to administer that punishment. From a conservative court the public received not interpretation of law, but rather, interpretation-made law!

The Alabama Midland charged a rate on phosphate rock to Troy, Alabama, an intermediate station, higher than that charged to Montgomery, though the rock destined for the latter place moved through Troy. It was further declared that cotton rates discriminated against Troy and it was shown that the rates charged upon its traffic from points in the North were higher than to Montgomery, farther distant. Upon investigation the Commission ordered the discrimination removed. From this order an appeal was

Figure 37: Map illustrating the Alabama Midland Case. taken to the courts and in 1897 the Supreme Court reversed the Commission, declaring that body had erred in refusing to recognize market or carrier competition at Montgomery as a justification for the lower rate accorded that point.1 Though it did not name such competition as alone justifying exception to the Long-and-Short-Haul clause, it held that it must be considered. Quite naturally the roads immediately asserted that this holding legalized practically all

1 Interstate Commerce Commission v. Alabama, Midland Railway Company, 168 U. S. 144.

departures from the long-and-short-haul principle. A complete breakdown of the clause was in prospect.

Encouraged by certain lower court decisions, however, the Commission sought to save something from the wreckage. In the Chattanooga case, therefore, that body ordered the railways to cease certain discriminations in favor of Nashville as against Chattanooga, consideration being given not merely to the question of similarity of conditions but also to the question as to whether the discriminations practiced were reasonable. But the reversal of the Commission by the Supreme Court in 1901 in this case 1 showed clearly that all endeavors to accomplish public good under Section 4 were useless; if railway self-interest justified the establishment of discriminatory rates or if local pressure for advantage constituted an adequate legal basis for similar action, then no ground remained upon which the Commission might make a stand. The Long-and-ShortHaul clause was as dead as though Congress had repealed it. Indeed, in the whole Act there remained as a memento not even a ragged stump of the "teeth" with which Congress had intended to equip it. Mute witness to the statement that no man knows what the law is until the courts, in their wisdom, have indicated what they believe the legislature meant or should have said.

COMMISSION CONTINUES WITHOUT POWER

The influence of the successive denials of power to act in an effective manner could not but have a marked effect upon the work of the Commission. Comparatively slight use had been made of its services even during those early years when its power had been little challenged, because of its newness, its physical remoteness from many, and the lack of familiarity of shippers generally with procedure. With the denial of authority to control in a positive manner all

1 East Tennessee, Virginia and Georgia Railway Company v. Interstate Commerce Commission, 181 U. S. 1.