amount to be annually raised by the government, to perform the railway transportation business of the country and pay the interest on the additional debt, would be about nine hundred million dollars. Of course it would be preposterous to think of supplying by general taxation. any considerable deficiency in the revenues from transportation. The American people would never submit to it. The system would have to be not only self-sustaining, but at least profitable enough to pay the interest on the debt contracted for its purchase. The railroads then must be made to earn as much money under government ownership as they now do under private ownership. There is no doubt that the present system of discriminations is the means by which railroad earnings have been raised to their present figures. These discriminations, as has been shown, are sometimes unfortunate, but they are not necessarily unjust, while they are necessary to maintain revenues. Certain discriminations which the railways have endeavored to obviate by pooling would, no doubt, be more effectually checked under public ownership, the effect of which would indeed be to bring the whole railroad system under one vast pool.

But discriminations arising from water competition and from the comparative natural advantages of different rail routes would still exist, and it is difficult to see how government could abolish them without doing an injustice, which would never be tolerated, to sections of country enjoying superior natural advantages.

GOVERNMENT OWNERSHIP.

205

But apart from the foregoing considerations is that of the influence which, under government ownership, different sections of the Union, according to their various interests, would exert in the public management of the railroad system, and in the establishment of classifications, rates, traffic connections, etc., etc. The inevitable proneness of representative men to seek to promote the commercial interests of their immediate constituencies at the expense of other portions of the country, is constantly observable. It can hardly be doubted that under governmental ownership of railways there would be worked out, either by legislation or by departmental rules, a system of sectional discriminations worse than any which under private ownership can possibly be imposed.

Government probably would not fall into the error of building unnecessary lines of road, and this would be an undoubted advantage of public ownership. But, on the other hand, it is likely that the development of new territory would be seriously retarded by the refusal of government to extend the railway system, except under circumstances likely to make the extension immediately remunerative, or at least self-sustaining.

CHAPTER VIII.

THE INTERSTATE COMMERCE ACT.

Analysis of the Act-Powers of Commission-Decisions concerning Long and Short Haul-Discriminations between Places, Persons, and Kinds of Traffic-Effects of the Act-Tendency toward Combination-A Railway "Trust."

THE legislation recently enacted by Congress for the regulation of commerce by railway is the result of more careful and intelligent deliberation perhaps than any other measure of similar character, and it is not unlikely that the legislation of many of the States will sooner or later be conformed to it. The general provisions intended to prevent extortion and unjust discrimination are not unlike those which have already been discussed. The powers conferred by the act upon the commissioners are in a certain sense judicial, inasmuch as they are authorized to hear and decide complaints of violations of the law. Yet their decisions lack the finality and binding effect of the judgments of a court, and are not enforcible by any process issuable by the commission itself. The enforcement of their decisions is left to the regular courts, where the conclusions and findings of fact of the

PROVISIONS OF THE ACT.

207

commission, though held to be prima facie correct, may on sufficient grounds be reversed. To have conferred strictly judicial powers on the federal commission would have been to make of it a court, of which the members under the constitution hold office for life, and not for a mere term of years. Its functions are, perhaps, as nearly judicial as could be made, without conferring a life tenure upon its members. The powers of the commission in administering the law are also limited by analogy to those of the regular courts; inasmuch as they cannot decide upon hypothetical or ex-parte statements of cases, but only upon complaints of actual infraction of the law duly presented and verified. Considerable verbiage is used in the act of Congress to define and limit the subjects to which it is intended to apply, and the attempt at too much detail in specification may give room for construction which will rob the measure of some of its desired effect; that is, if its object was, as commonly supposed, the regulation of all such commerce carried on by railroads as Congress is empowered to regulate.

The provisions of the act apply to common carriers engaged in transportation "wholly by railroad, or partly by railroad and partly by water, when both are used, under a common control, management, or arrangement, for a continuous carriage" from State to State, etc.

This language confines the scope of the law within much narrower limits than might, under the authority of

the Constitution, have been fixed; for it exempts from its operation commerce carried on by two independent agencies, one of which operates by water; and it contemplates, apparently, a continuous carriage from State to State, etc. And although Section 7 of the act is intended to prevent evasions of its purpose by any breach in the continuity of the carriage made intentionally to evade it, yet it seems probable that the terms of the law fail to cover some very important cases of interstate commerce carried on by rail. The provisions of the act apply to both passenger and freight transportation. All charges made for or in connection with transportation services, or for receiving, storing, handling, and delivering freight, are required to be “just and reasonable,” and "every unjust and unreasonable charge for such service is prohibited and declared to be unlawful." On the general subject of discriminations it is declared to be unlawful, for any common carrier subject to the provisions of the act, "to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular description of traffic, in any respect whatsoever, or to subject any particular person, firm, company, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage, in any respect whatsoever."

It is also provided that "every common carrier subject to the provisions of this act shall, according to their rẹ