March i6, 1888.] 



SCIENCE. 



129 



ized to administer would be supei-human and an impossible task, 

 the commission sets to work, as in duty bound, to find something 

 to do. It is legally bound to assume that it was created for a pos- 

 sible purpose, to do something not superhuman. And so the com- 

 mission, groping, as it frankly admits, in the dark, strikes at last 

 upon the cause, " under substantially similar circumstances and 

 conditions," and finds at last a foothold. Surely, it says, " if the 

 carrier . . . shall depart from the general rule, ... if the circum- 

 stances and conditions of the two hauls are dissimilar, the statute 

 is not violated." Clearly, if Congress shall take the grocery trade 

 tinder its jurisdiction, and declare that the poor man must not be 

 obliged to pay more per pound for his two pounds of sugar than 

 the dealer pays per pound for his two thousand hogsheads, it would 

 put an end to the wholesale grocery business on the instant. But 

 if Congress says that this rule shall only apply to the sugar made 

 " under substantially similar circumstances and conditions," then 

 the sugar trade may go on in peace, as before, relying on the 

 immutable truth that no like transactions are or can be under the 

 same circumstances and conditions, and foregoing to attempt the 

 'superhuman task' of taking evidence all over the continent, — 

 from the planters, the cultivators, the harvesters of the sugar-crop, 

 the teamsters who carried it to the railroad, the shipper, the book- 

 ing clerk, the carrying company, and so forth and so on, down 

 through the jobber, the wholesaler, to the consumer or the mes- 

 senger sent to pay the twenty or twenty-five cents for the brown 

 paper parcel, — in perfect faith that in no two cases can the adjec- 

 tive clause ' substantially similar ' be predicated to any one trans- 

 action when collated with any other transaction on record. Cer- 

 tainly the commission is right. Indeed, the wonderful part of the 

 opinion is in the e.xact legal consistency and candor with which it 

 admits that the law is one, ivhich, if logical, is impossible of cnforce- 

 7nent : and, if illogical, caii only be administered by leaving mailers 

 precisely as they were before the law was passed ! Following the 

 above line of reasoning, the commission declares (p. 6) that the 

 statute becomes practical, and may be enforced without serious 

 ■embarrassment. The commission, having settled this much, now 

 proceeds to collate the two sections of the Act which relate to the 

 long and short haul (Sections 2 and 4), and proceeds, " It is not at 

 all likely that Congress would deliberately in the same act. and 

 when dealing with the same general subject, make use of a phrase 

 which was not only carefully chosen and peculiar, but also con- 

 trolling, in such different senses that its effect as used in one place 

 upon the conduct of the parties who were to be regulated and con- 

 trolled by it would be essentially different from what it was as used 

 in another" (p. 7). And therefore the commission renders its de- 

 cision in a sentence which I must be pardoned for putting in Italics : 

 ^' Beyond question, the carrier must judge for itself what are the 

 substantially similar circumstances and conditions . . . on peril 

 of the consequences" (p. 7). But is not this what every carrier 

 (nay, every business-man) does, has always done, and always will 

 do to the end of time .' And is not this a pronouncement from the 

 mouth of the Interstate Commission itself, that if the clause ' under 

 substantially similar circumstances and conditions' is of the 

 •essence of the Act, then the law is a nullity ? 



But after having arrived, by application of every rule of law, and 

 the legal construction of statutes, — that is to say, by irresistible 

 logic, — to its conclusion on p. 7, the commission proceeds for 

 twenty-two pages more to discuss analytically and still logically the 

 situation. What situation ? The case submitted by the petition, 

 the Louisville and Nashville Railway Company, was simply the 

 ■case which arises every moment of the day to any railroad com- 

 pany which carries freight for hire ; and while considerable per- 

 centage of these cases are not necessarily ' interstate ' in their 

 character, yet every practical railroad man (certainly every student 

 •of political economy) knows that such a character, from a commer- 

 cial standpoint, could be given to almost everyone of them without 

 any difficulty. The remaining twenty-two pages of this startling 

 •opinion — startling in that it is a confession at the outset that the 

 Interstate Commerce Act cannot change the situation without dis- 

 •continuing the business and commercial transactions of the people 

 ■of the United States — is merely an analytical examination of the 

 reciprocal relations which arise between a shipper and a carrier in 

 any contract of transportation. 



The commission proceeds to lay down the following proposi- 

 tions, which it deduces from the case before it, and the evidence 

 taken : — 



" 1st, That the support and maintenance of a railroad ought prop- 

 erly to be borne by the local traffic for which it is supposed to be 

 built, and the through traffic may justly be carried for any sum not 

 below the cost of its own transportation. 



" 2d, That the cost of local traffic is greatest, and the charges 

 for carrying it should be in proportion ; and, if they are so, they 

 will often result in the greater charge for the shorter haul. 



" 3d, That traffic carried long distances will much of it become im- 

 possible if charged rates corresponding to those which may proper- 

 ly be imposed on local traffic ; and it must therefore be taken in 

 recognition of the principle accepted the world over, that the traffic 

 must be charged only what it will bear. 



"4th, That the long hauls at low rates tend to build up manufac- 

 tures and other industries without injury to the traffic upon which 

 rates are heaviest. 



" 5th, That charges on long hauls which are less than the charges 

 on shorter hauls over the same line, in the same direction, are com- 

 monly charges which the carriers do not voluntarily fix, but which 

 are forced upon them by a competition from whose compulsion 

 there is practically no escape." 



Since the above propositions are axioms in railway man- 

 agement, and since, however immutable, axiomatic, and eter- 

 nal they are — were before there was any Interstate Commerce 

 Act or Interstate Commerce Commission, and will be after both 

 have been numbered among the figments of the past ; since the 

 cominission is not supposed to be organized for the purpose of 

 ruling that black is black, and white is white, — what was left for 

 the commission to say to the railroads of the United States except, 

 " Depart in peace, be ye warmed and filled, you have done nothing 

 worthy of death or of bonds, you have conserved the best interests 

 of the people, have built up a continent, and are worthy of the high- 

 est praise " ? That is precisely what it does say, for it un- 

 hesitatingly adds, " On the construction we give to the statute, 

 these several applications need not have been filed, and there- 

 fore they might now be withdrawn without further judgment " 

 (p. 8). But the commission remembered the Act upon which 

 it was created, and that it was expected to justify at least the 

 action of Congress in creating it, and so announced its willingness 

 to go into the merits of the question (it had just decided that there 

 was no question), making its excuse. " that it is manifestly impor- 

 tant to the public interest, as well as to that of the railways them- 

 selves, that mistakes shall be as far as possible avoided " (p. g), — 

 (a proposition to which certainly nobody can demur); or to limit these 

 propositions, or discover anywhere a public need or benefit that the 

 management of the railways of the country have overlooked. How 

 should the situation be changed to benefit the people .' How can 

 it be changed without destroying our interstate commerce ; nay, 

 without destroying the welfare of the country and paralyzing all 

 business transactions.' " Every railroad company," says the com- 

 mission, " ought, when it is practicable, so to arrange its tarififs 

 that the burden upon freights shall be proportionate on all portions 

 of its lines, with a view to revenue sufficient to meet all the items 

 of current expense, including the cost of keeping up the road, 

 buildings, and equipment, and of returning a fair profit to owners." 

 But this is precisely what every railroad does, has always done, and 

 always will do. To attempt to make tariffs other than proportion- 

 ate would require an increasing of its book-keeping expenses, and 

 of its auditing bureaus, to every railroad company, which would 

 make it cheaper to go out of the business than to continue. In 

 other words (the words of the opinion), " a railroad ought not to 

 neglect any traffic of a kind that will increase its receipts more than 

 its expenses " (p. 22). To state it frankly, therefore, the opinion of 

 the commission, in the case of the Louisville and Nashville Railroad 

 Company, is a benign approval of the business methods of our rail- 

 road companies which certainly merits the exclamation of King 

 Barak over the efforts of the prophet Balaam. 



And then the commission repeats in detail its already general 

 commendation of the railways of this Republic. It says that they 

 may compete with Canadian railways (p. 22) and with the water- 

 courses (p. 22). And the commission therefore arrives at its rulings 



