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SCIENCE. 



[Vol. XI. No. 267 



hard-earned savings and small economies of thousands more ; and, 

 most of all, that, of the total of all these losses and savings, almost 

 a hundred per cent had gone to pay for labor, and for material the 

 cost of which itself was largely the labor of handling it. Such 

 statements as these, few of his betters have the brains to grapple 

 with. The day-laborer may have sundry vague impressions that 

 he should be paid in proportion to the number of his children 

 rather than according to the value of his services ; that the idea of 

 anybody handling a million of money is a personal affront ; and 

 that altogether he is a slave, and that any change and convulsion, 

 and shifting of bases, could not make him more wretched, and 

 brought an even chance of betterment. He may not even be equal 

 to these ideas, but simply absorb the single idea that the master of 

 his local union has money to occasionally pay him a per diem 

 almost as great for not working as he receives from his employer 

 for working. But he knows that he is the slave of somebody. The 

 nearest railway company is to him the most prominent representa- 

 tion of massed wealth, and he accordingly selects it for the slave- 

 driver against whom he is to rebel. Everybody saw the wrong, 

 but the remedy was not so apparent. Everybody sees logically that 

 the railway as an institution is innocent of all this chaos. But logic 

 is one thing, and practical solution, quelling of clamor, ameliora- 

 tion of disasters, are quite another. So it was that when the com- 

 plicated problem reached the floor of Congress, it was no longer a 

 sentiment, a prejudice, or a jealousy : it was a mighty and imperious 

 fact, demanding and insisting upon immediate attention. Congress 

 passed the Act to regulate interstate commerce, the President ap- 

 proved it, and it was the law of the land. It has been in operation 

 a year. So far as the people of these United States are concerned, 

 has it changed the situation (existing at its approval, and admitted- 

 ly clamoring for remedy) in the slightest degree ? Have strikes 

 ceased.' Are rates lower ? Have private fortunes disappeared or 

 ceased to be accumulated ? Have the railways been curtailed in 

 their despotic sway over the lives, fortunes, and liberties of our 

 people ? Had any recipient of a pass over one of our railways, or 

 of a drawback, rebate, or special privilege, complained to Congress 

 that he had been so favored ? (That concessions to the few were 

 injuries to the many, and the ' pass ' system an unmitigated wrong 

 and nuisance, — these were the complaints of the railway com- 

 panies, not of the people ; and Congress had heard them with ears 

 as deaf as adders' ears for the last quarter of a century.) To these 

 questions some of us are still looking for an answer, others the 

 commission itself has answered for us. The Interstate Commerce 

 Commission (to its credit everlastingly, be it said) did not wait for 

 the filing of its first annual report to come boldly forward and tell 

 the people of the United States that they were in error ; that the 

 railways were not their enemies ; that, although bound to assume 

 that it had been created for some wise purpose, and therefore to 

 hunt around to find that purpose, the commission did not propose 

 to share in the communistic cry of ' Down with the railways ! ' or 

 even to admit that railways were a menace to the liberties of the 

 people. It seized upon its first opportunity to assume that the 

 statute of interstate commerce was of no practical value to any- 

 body, but intended to be understood in a purely Pickwickian sense. 

 That opportunity was the presentation of a petition, on the part 

 of one of the corporations to be brought under the paternal power 

 of the commission, — the Louisville and Nashville Railroad Com- 

 pany, — for relief from the operation of so much of the fourth sec- 

 tion 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 to conduct the business for which the 

 people had incorporated it. For to say that a grocer may sell 

 sugar, but that if another grocer across the way also sell sugar the 

 first grocer may not compete with the second grocer, is clearly to 

 so embargo the first grocer as to close him out. To be sure, the 

 law added a clause limiting the prohibition to " substantially similar 

 circumstances and conditions ; " but the limitation scarcely helped 

 matters, since it merely substituted a question of fact for a question 

 of law, and opened an interminable and costly field for the taking 

 of testimony and the examination of witnesses which could easily 



paralyze any interest forced to enter it. Besides, to recur to the 

 simile of the grocer, it might be said to permit the retail trade in 

 sugar only on condition that no wholesaling was attempted. He 

 might sell a pound of sugar at any price he could get, but must be 

 careful, if he sold a thousand hogsheads, not to diminish his rate 

 per pound, either by quoting his commodity at less, or by rebating 

 or offsetting for the comparative magnitude of the transaction. 

 Such, then, being the opportunity, the cause of the client, the opin- 

 ion of the commission in this first case of importance was looked 

 for as an emphatic justification of the law the people had enacted. 



But on being promulgated, 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 unsatisfac- 

 tory 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 Inter- 

 state Commerce Commission begins with an apology for not inter- 

 fering with the railway companies, which, to say the least, was 

 unique in juridicial literature. 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 rail- 

 way company or by any proximate or remote effect of such act or 

 its theory, froin Maine to California. And, even should the com- 

 mission be able to decide the matter before it without the bother of 

 hearing testimony, the commission admits that " an adjudication 

 upon a petition for relief would in many cases be far from conclud- 

 ing 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 re- 

 quired 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 con- 

 siderable 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 imprac- 

 ticable " (p. 5) says the commission finally. And yet, if the Inter- 

 state Commerce Act means any thing, 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 I 

 But to proceed with examination of the opinion. Having frankly 

 admitted that to endeavor to discharge the functions it was organ- 



^ The references are to the official copy of the opinion printed at the IJovernment 

 Printing-office, Washington, 1887. 



