tribunal. The lines should then be required, separately and without concert of action, to file on a fixed day a schedule of the freight charges which they propose to adopt. I know this might be evaded; but as, in some measure, a safeguard against that, penalties should be prescribed for a violation of this provision; and the schedule should be verified by the affidavit of the managing directors of each line, to the effect that they had complied with the statute specifying the forbidden acts and stating that they had not been done. From the schedules thus filed, and the information obtained by the preliminary inquiry, the tribunal should be authorized to prescribe a minimum rate of freight charges, and all competing lines should be forbidden to go below that rate without cause shown, and the decree of the tribunal consenting thereto. This provision should be made to go into effect on the first day of the railroad year, as prescribed by the tribunal. The minimum rate adopted might be the lowest rate offered by any one of the competing lines; or it might be some other rate, in the discretion of the tribunal. Heavy penalties should be annexed to violations of the rule; and it might, in the discretion of the tribunal, be imposed on the company, as such, or any or all of the directors and managers, personally, whether they participated in the wrong or not, except that those opposing the wrong should be exempt.

Thus, railroad wars would be eliminated from the problem, and legitimate competition would be stimulated. Competition should not be eliminated, but regulated so as to prevent aggression and afford security in the enjoyment of rights properly exercised. It is a mistake to suppose that the laws of competition do not apply to railroads. That they do apply, and that beneficently, is the dictate of reason and common sense. Herbert Spencer says: "It is not true that there cannot exist between railways a competition analogous to that which exists between traders. * * * The results (of competition) are, that each takes that portion of the traffic which, in virtue of its position and local circumstances, naturally falls to its share; that each stimulates the other to give the greatest

advantages it can afford, and that each keeps the other in order by threatening to take away its natural share of the traffic, if, by ill behavior or inefficiency, it counterbalances the special advantages it offers. Now, this is just the form which competition eventually assumes between traders." He instances the example of the Great Western Company and the Northwestern Company, which both communicate with Birmingham and Oxford, on the testimony of Mr. Saunders, the Secretary of the Great Western Company. (Railway Morals and Railway Policy.) This plan would also allow both railroads and places to enjoy, unmolested, their natural advantages, as they ought to do. I am aware that railroad managers will say the scheme is impracticable, and so they will say of all schemes that do not amount to a mockery of a real remedy; but after careful consideration I fail to see the force of any such objection. I know, too, that some roads and some places may suffer more or less by the arrangement, but they will suffer justly and through natural economical conditions, while others will profit by the same cause, and arbitrary wrongs will be less frequent. And then it must be remembered that the good of the whole, of all interests, is the thing sought, and no remedial plan whatever could be devised which would not operate more to the advantage of some than of others. But that plan is best which is based on natural laws, combined with skill, efficiency, honesty and courtesy in the management of the railroad. Thus legitimate enterprise and endeavor to please is encouraged in the road disadvantageously situated.

This tribunal should have, in addition to the functions already suggested, general jurisdiction of all cases arising under national railway laws. I am not of the opinion that it should, like the railway commissions, have general supervision over railroads. It should collect, through the bureau, the information before mentioned, and should report the same annually to Congress, with recommendations as to legislation needed to perfect the administration of justice in the matter of transportation. Beyond this its action would be, perhaps, best confined to reported grievances. To this end its action should be invoked

by simple petition under oath. Any governor of a State, mayor of a city, selectmen of a town, or any ten lawful voters and citizens, and any railroad company, should have the right to petition the tribunal for a redress or prevention of a wrong, or the granting of a privilege, that is, of course, when the same affected inter-state or foreign commerce, and arose under national legislation or came into conflict with it. The petition should fully set forth the facts and reasons on which it is based, together with a statement of the names of witnesses and documentary evidence to sustain its allegations. The tribunal should then order an investigation, hear the other side, and make its decree, which should be enforced in the same manner as any decree of a court of the Uuited States. Where the bureau is already in possession of the facts on which the petition is based, the tribunal might dispense with an expensive investigation and simply order the respondents to file a written answer and argument, and then dispose of the matter at once. When petitions are filed notice should be given by the petitioner to the other side by serving a copy of the petition, omitting the names of the witnesses and the statement of documentary evidence. Thus any breach of law might be expeditiously noticed and disposed of.

Another important class of questions would arise in regard to discriminations and changes of rates. The provision forbidding discriminations and establishing a minimum rate should be subject to this exception. If any road desired to drop its schedule below the minimum rate, it should be permitted to petition the tribunal to that effect, setting forth its reasons. If there were any competing lines, or any place or class to be affected by the change, notice should be ordered to be given and a hearing had by the adverse parties, and the tribunal, in its wisdom, should grant or deny the petition, or otherwise modify existing arrangements. The same course should be pursued when any road wished to discriminate in favor of one place or person and against another, or to grant special rates on particular classes of merchandise. We have seen that cases will arise where it would be very proper to

grant such a privilege. But the granting of this is, under modern circumstances, a governmental function, and, as we have seen, should not be left to the regulation of interested parties. The same observations will apply to the proposed construction of new lines for the express or obvious purpose of disturbing the existing equilibrium, and to arrangements or combinations by the companies with each other, or with other persons and corporations, for entering into speculative enterprises not necessarily connected with the business of transportation. In short, every breach of statutory or common law provisions, and of the policy of the government, as declared by statute, could thus be brought before the tribunal. Of course, suits for damages and actions for penalties should be left for the Circuit Courts of the United States to decide, except that the tribunal should enforce, by the aid of the executive power, its own decrees and its own fines and penalties. And the tribunal should have power to inflict proper fines and penalties for violations of law and duty, and these should form a fund for the payment of the salaries and expenses of the tribunal. Where they are insufficient the deficiency should be paid, onehalf by the companies subject to the jurisdiction of the tribunal, in proportion to their gross inter-state traffic, and the other half from the treasury of the United States. These details, however, may be modified as the wisdom of Congress may dictate.

The tribunal should formulate, as cases arise, a rule of decision, and this rule should be promulgated in stated reports, according to the practice of other courts. At first it should be guided by the principles of natural justice and right reason, and the principles of common and constitutional law and the statutes of the United States. Congress should, from time to time, change the rules of decision of the tribunal, when the interests of transportation, justice and commerce require it.

Undoubtedly, prophets will arise and say this is all unconstitutional. I cannot discuss this question in this essay. There is not time nor room. But I have considered that objection and do not consider it tenable. The cases and

authorities I have cited establish that the power of Congress over these matters is ample and exclusive; and I believe I have advocated no detail which is not strictly within the spirit of those authorities. As to the means I have advocated, I will content myself with citing two great cases, in which Chief Justice MARSHALL delivered the opinions, which fully establish the constitutionality of those means. These cases are too lengthy to be inserted here, but are accessible to all. (McCulloch v. The State of Maryland, 4 Wheaton, 316; Osborn v. The United States Bank, 9 id., 738, 859.) The power to regulate commerce is vested in Congress. The Congress has large discretion as to the means of executing its powers, as is shown in the cases cited. The establishment of the United States Bank was held by the Supreme Court to be a proper means of performing the functions of Congress in relation to the fiscal concerns of the nation. This tribunal is merely a means to an end the regulation of commerce. It is a "necessary' means, as perhaps this, or some like method, is the only feasible way that Congress can hope to deal with this very dif ficult subject. Again, Congress may establish tribunals inferior to the Supreme Court. The functions of the tribunal, though not wholly so, are principally and eminently judicial. Congress having created by law a certain class of cases, peculiar in themselves, constitutes a tribunal competent to deal with those This seems to be a sound view of the constitutionality of the proposed legislation. I omitted to say that appeals on questions of law only, should be allowed from the decisions of the tribunal to the Supreme Court, whenever the tribunal or any one member thereof shall deem it in the interest of justice to to allow it, or whenever the tribunal or one member thereof shall certify that the legal questions involved are of sufficient importance to require a review by the highest tribunal in the land.

cases.

I have thus sketched the outline of a system of legislation which will effectually deal with the railroad problem. I have not undertaken to go into every detail, nor can I hope that it is beyond criticism. I know I advocate bold legislation, but