of the act requiring previous publication, posting, and filing with the Commission of contemplated changes in rates may be practically set at naught. The failure of railroad companies to establish, maintain, and make known to the public the rates the shipper must pay and the names of all the carriers undertaking to carry from place of shipment to destination at the stipulated rate leads to hindrance in continuous carriage, to the denial of equal facilities, to overcharges and abuses. to * * * * The following letter, received from merchants in Louisiana concerning the shipment of a single bale of cotton goods, illustrates how abuses. result from the failure to establish, in conformity with law, joint rates and charges on continuous lines operated by more than one company: The following facts are already sworn testimony in a suit now on trial in our parish court, as yet undecided: In July, 1890, was shipped from St. Louis, Mo., Louisiana 1 bale of lowells or osnaburgs, under a bill of lading properly signed and stamped in every particular as usually required, and a rate inserted of 54 cents per 100 pounds, through to destination. On arrival, $1.18 per 100 pounds was charged, and upon our refusal to pay same and put in a claim for overcharge, waiting the pleasure of the railroad company to settle same, we were forced into a lawsuit for possession of the goods. The attorneys of the railroad company have availed themselves of every technicality and subterfuge known to our State laws to make us pay the $1.18 rate in a suit now lasting over a year, and yet undecided. * * * Appendix C, prepared in the auditor's division, is an instructive report or statement both as to the practices of carriers and requirements of law in the matter of preparation, publication, and filing of schedules of rates and charges; and it must be admitted that, while substantial progress is being made in most of the subject-matters of regulation, there are many abuses still practiced which it was the object of the law to prevent. COMMISSION DEPENDENT UPON THE COURTS FOR EFFIcient EXECUTION OF THE ACT. Considered in its relation to the methods and practices prevailing at the time of its enactment, the law to regulate commerce enacted a new standard of right and wrong, and was intended to completely change many of the methods and practices then in general use in railway management. It was believed by the Commission that a law affecting interests of such magnitude as those involved in the business of railway transportation would not be best administered and executed by such hasty action as would necessarily invite and provoke hurtful opposition and antagonisms; and it was thought both prudent and just that such reasonable time should be given for adjustment to new conditions as might enable the carriers to so modify their classifications, schedules, and methods as to promote their own and the public interests while complying with the law. Though required to execute and enforce the provisions of the act, the Commission not being invested with power to enforce its own orders, is dependent for the efficiency of such execution and enforcement upon the courts; and while much progress has been made in the work of regulation and in the general observance of the law, the orders of the Commission are not always obeyed and performed by the carriers to be affected. Within the year, and in compliance with the provisions of section 16 of the act, applications have been made by petition to the United States circuit court, and suits are now pending for the enforcement of orders which, with a single exception, were made in previous years, and one or more of them by the Commission as originally constituted. Such petitions have been filed: In the southern district of California, against the Atchison, Topeka and Santa Fé Railroad Company, to enforce an order enjoining that company from making any greater charge on certain articles of general merchandise carried from places of production to San Bernardino, the shorter distance, than is at the same time charged on like articles carried from the same places through San Bernardino to Los Angeles, a longer distance. In the eastern district of Pennsylvania, against the Lehigh Valley Railroad Company, to enforce an order requiring reduction in the charges for carrying coal from the Pennsylvania anthracite coal regions to New York, and in which proceeding the authority of the Commission to determine what rates are reasonable as well as what are unreasonable is questioned. In the northern district of Georgia, against the Georgia and other railroad companies, enjoining and forbidding any greater charge to Social Circle, Ga., a shorter distance, than is made to Augusta, Ga., over the same line, on buggies and carriages shipped from Cincinnati, Ohio. In the northern district of Georgia, against the Georgia Railroad Company, to enforce order requiring equal accommodations and treatment of colored and white persons paying the same fare. In the western district of Michigan, against the Detroit, Grand Haven and Milwaukee Railroad Company, to enforce order forbidding maintenance of free cartage at Grand Rapids, Mich., which is not maintained to the shorter distance station, Ionia, Mich. Copies of the petitions and answers thereto filed in the cases in which these several orders were made are found in Appendix D. ENFORCING THE ACT-CRIMINAL PROCEEDINGS. The act to regulate commerce contemplates two methods of enforcing compliance with its provisions; one by the imposition of criminal penalties for infractions of the law; the other by civil proceedings in the Federal courts to compel obedience to "the lawful order or requirement" of the Commission. The tenth section of the act, containing its penal enactments, provides that * Any common carrier subject to the provisions of this act, or whenever such common carrier is a corporation, any person acting for or employed by such corporation who shall violate the provisions of the act, by way either of commission or omission, shall be deemed guilty of a misdemeanor. It has been held by one of the circuit judges of the United States, apparently in view of the language above quoted, that- Corporations acting as common carriers between States are not liable criminally for violations of the interstate commerce act; nor are they exposed to its penalties or forfeiture. Nearly, if not quite, all carriers subject to the act to regulate commerce are corporations, and it is plain, therefore, under this construction, that criminal penalties can be visited only upon persons "acting for or employed by such corporations," and against such persons, presumably, only when they actually participate in, or are responsible for, the act or omission which the statute condemns. In this respect the law is defective at an important point, and should be corrected by suitable amendment. The imposition of criminal penalties upon railway officials, as well as the corporation itself, where such officials participate in a violation of the law, is unquestionably a wise and salutary feature of the act. Indeed, in those cases where punishment by imprisonment is prescribed, such punishment can, in the nature of things, be inflicted only on a real individual or natural person, and not on an abstract entity or artificial person like a corporation. In very many cases, however, where the punishment prescribed is a fine, or pecuniary penalty, it is much more appropriate that the real offender, the principal rather than the agent, should be compelled to suffer; and the law-making power has undoubted authority to provide for the criminal prosecution of the corporation itself. Where criminal proceedings are instituted against the officers and agents of a railroad company for violations of the law which in no way inure to their personal advantage, but which are committed in the interest, real or supposed, of the corporations they represent, there is liable to be a sentiment in the minds of the public, and possibly of jurors also, which militates against conviction, even when the evidences of guilt appear to be conclusive. In some instances this sentiment has been assiduously cultivated, and perhaps not without effect; for although it may be believed that a fine imposed upon an official will be paid by the company to which he belongs, yet the obvious fact that some employé, or petty officer is sought to be convicted, while the corporation itself, the real beneficiary of the transaction, not only goes unpunished, but is adjudged incapable of criminal wrongdoing, tends both to nullify the law in the particular case and to bring its penal provisions into general discredit. In addition to these considerations is the further fact that in many cases, especially where the offense consists in the failure or omission to discharge some duty required by the law, it is very difficult to determine what particular official is charged with the performance of the duty, and consequently liable to criminal prosecution for its non performance. There may be, for instance, failure to publish and post the tariffs of a railway company, or to publish and post changes therein for the time prescribed. What officer can be held criminally accountable? Against what particular person could proof be made sufficient to justify conviction? Yet, if the corporation itself could be indicted for the offense and fined upon conviction, the evidence of its misdemeanor would be within easy reach, and the justice of its punishment unquestioned. The tenth section, declaring what conduct, acts, or omissions are misdemeanors and punishable as such, is very broad and comprehensive in its terms. * It is thereby declared to be a misdemeanor to "willfully do or cause to be done or * * * willfully suffer or permit to be done, any act, matter, or thing in this act prohibited or declared to be * * unlawful,” or to "aid or abet therein," or to "willfully omit or fail to do any act, matter, or thing in this act required to be done," or to "cause or willfully suffer or permit any act, matter, or thing so directed or required by this act to be done not to be so done," or to "aid or abet any such omission or failure," or to "be guilty of any infraction of this act," or to "aid or abet therein." So far as acts of commission are thus made misdemeanors, they consist for the most part in willfully doing or causing or permitting to be done" any act, matter, or thing in this act prohibited or declared to be unlawful." What, then, are the acts, matters, and things prohibited or declared to be unlawful in the act? They seem to be seven in number, as follows: (1) Unjust and unreasonable charges, as provided by the first section. (2) Unjust discrimination, or charging more or less to one person than to another for like and contemporaneous service under substantially similar circumstances and conditions, as provided by section 2. (3) The giving of undue preference and advantages, or imposition of undue prejudice and disadvantage, as provided by section 3. (4) Charging more for the longer than the shorter haul under substantially similar circumstances and conditions, as provided by section 4. (5) Pooling, as provided by section 5. (6) Charging more or less than published rates, as provided by section 6. (7) Arrangements to prevent carriage of freights from being continuous, as provided by section 7. And in this connection it is to be remembered that section 10, as amended, makes both shipper and carrier criminally liable for willful false billing, false classification, false weighing, false representation of contents of packages, or other devices, to give or obtain transportation at less than published rates. It will be seen that some of the things thus forbidden and declared S. Mis. 31 -2 to be unlawful are stated in very general and comprehensive terms, which do not in all cases specifically define a particular act or course of conduct. The line between a criminal violation of the law and a mere error of judgment or opinion as to what is lawful or unlawful in a particular case is often very difficult to locate. Precisely what "pooling" is, within the meaning of the act, what charges are "unjust and unreasonable," what is "unjust discrimination" or "undue preference," or what is substantial similarity between "circumstances and conditions," are, for example, questions which it is not always easy to answer. When such inquiries are presented in the course of criminal proceedings it is presumed that juries will depend for guidance or correct conclusions very much upon the instructions of the court; but it may be expected that the well-known rule which in criminal causes gives the accused the benefit of all reasonable doubt will sometimes result in a failure to convict, even where the circumstances disclosed by the evidence would seem to require a judgment against the same party in civil proceedings. It is probably safe to say, therefore, that the vast number of questions arising between shippers and carriers subject to the provisions of the act, involving general considerations of reasonableness of rates, discriminations, diversity of circumstances attending on the business of transportation, and other like questions, will in general come either before the courts in civil actions for damages, which the act provides for, or before the Commission, upon complaint made to it, at the option of the party alleging a grievance. The Commission thus has duties of a quasi judicial character imposed upon it, involving the investigation of questions of great intricacy and importance. It has not, however, been clothed with that essential function of a strictly judicial tribunal-the power of enforcing its orders by its own process. Suppose that Congress should, as probably it constitutionally may, organize a court with power to adjudicate finally all cases and controversies arising under the act to regulate commerce, in what respect, it may be asked, would the powers of such a court differ from the powers now possessed by the Commission. The most important difference, as above indicated, would consist in the finality and inherent authority of the court's decisions, which would be enforcable by the court's own process. As the law now stands the decisions of the Commission are not final, and it is without the power to enforce them by any process of its own. But it is to be remembered that the investigation and determination of controversies originating in complaints against the carriers, based on alleged unreasonableness of rates, unjust discriminations, or other charges of like character, constitute a part only of the duties imposed on the Commission by the act under which it exists. The Commission |