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 Commerce, the Commission and the Courts 
 
 A Lecture delivered under the auspices 
 of the College of Arts and Sciences 
 
 At Cornell University 
 May 13, 1912 
 
 By ' 
 
 Logan G, McPherson 
 
 Lecturer on Transportation at the Johns Hopkins University 
 Director of the Bureau of Railway Economics' ' 
 
 WASHINGTON, D. C, 
 1912
 
 2^o 
 
 c< . 
 
 1 
 I
 
 Commerce, the Commission and the Courts. 
 
 With the utilization of steam came that development under which 
 a stationary steam engine transmits power through belts and wheels 
 enabling the simultaneous working of varied machinery in ever more 
 specialized manufacture. With the utilization of steam came the loco- 
 motive which has given a new significance to the transportation of 
 persons and of the things which people use. The stationary engine 
 and the locomotive brought the great modern mill and factory, the 
 trend of the population to the cities, the large scale operations that 
 have enhanced the differentiation between employer and employee and 
 have accelerated the segregation of capital. The tremendous eco- 
 ^ nomic changes have brought about changes and are bringing about 
 ^' still other changes in the law of the land. 
 
 Y But these economic changes in the ramification of their effect are 
 
 X^ not yet understood, and therefore it is not yet known just what should 
 
 wClie the adjustment of the law necessary to promote wholesome eco- 
 
 j.'-> nomic progress. For instance, when the Sherman Anti-Trust Law 
 
 --^ was under discussion in the Senate a Senator remarked that it was a 
 
 (4 measure which nobody wanted, nobody understood, but everybody was 
 
 i^;!^^oing to vote for. That law remained on the statute books for twenty- 
 
 "j one years before anybody had a definite idea of just what it meant. It 
 
 » needed a decision of the Supreme Court to give it vitality and even 
 
 '^s now vitalized a large measure of uncertainty attends its application. 
 
 In no respect is there greater uncertainty than in the attempt to 
 
 vj^djust the law to the function of transportation. This question has 
 
 many aspects, but that of most importance both to the railways, which 
 
 'are the principal agencies of transportation in this country, and to the 
 
 public concerns the rates which shall be charged for transportation, 
 
 and especially for the carriage of freight. The revenue upon which 
 
 the railroads depend for existence is determined in large measure by 
 
 "^ the rates which they charge, the volume of traffic being the other 
 
 R factor. As the rates applying to a shipment are higher or lower the 
 
 «: profits of a producer or a dealer are as a rule, other conditions equal, 
 
 ^ lower or higher. 
 
 '>i When the railroads came into existence they were as a matter of 
 
 ^ 35837
 
 course subject to the existing law. A most important part of the 
 common law is that which relates to property, the rights to 
 property, the conditions under which property may be held and trans- 
 ferred. The right to the use and enjoyment of property lawfully 
 held is one of the fundamental rights guaranteed to the American 
 citizen by the Constitution of the United States and the law of the 
 land. The railways in the United States are private property and as 
 such those who hold title to them are entitled to their use as property 
 and are entitled to be protected in that use by the law and the Govern- 
 ment. 
 
 It is also true that the railways are "affected with a public use." It 
 is, because of the public nature of their services that the railroads were 
 accorded the power of eminent domain which almost continuously has 
 been referred to as the reason that they should be subject to public 
 regulation. It ought to be recognized, however, that the real basis 
 for this regulation is the economic power of the railways which was 
 not foreseen when the original charters were granted. The distinction 
 between the private rights and the public obligations of a railway 
 have not even as yet been definitely and finally determined. 
 
 So recently as October, 1876, the Supreme Court of the United 
 States in Lake Superior & Mississippi Railroad Company vs. United 
 States; and Atchison, Topeka & Santa Fe Railroad Company vs. 
 United States (United States Reports, Supreme Court, Volume 93, 
 p. 442), held that the act of Congress providing that a railroad shall 
 be "a public highway for the use of the nation of the United States, 
 free from all toll or other charges, for the transportation of any 
 property or troops of the United States," decrees to the Government 
 the free use of the road only and not of the rolling stock or other 
 personal property of the company. Still later — October 2d, 1883 — it 
 is declared in a Pennsylvania case (Pierce vs. Commonwealth, 104 
 Pa., 150, 155, 13 Am. & Eng. Cas., 74, 79, per Gordon, J., citing Pres- 
 byterian Society vs. Auburn & Rochester Railroad Company, 3 Hill 
 (N. Y.) that "A railroad company is not public, nor does it stand in 
 the place of the public ; it is but a private corporation over whose rails 
 the public may travel if it chooses to ride in its cars. Indeed, we re- 
 gard it as a misnomer to attach even the name 'quasi-public corpora- 
 tion' to a railroad company, for it has none of the features of such cor- 
 porations, if we except its qualified right of eminent domain, and this
 
 is because of the right reserved in the public to use its way for travel 
 and transportation. Its officers are not public officers, and its business 
 transactions are as private as those of a banking house. Its road may 
 be called a quasi-public highway, but the company itself is a private 
 corporation and nothing more." 
 
 It was the intent of the founders of this Government that the indi- 
 vidual citizen have the utmost possible liberty, that his activities be 
 limited only by trespass upon the equal rights of others. To the prop- 
 erty holder was guaranteed his right to the use of his property subject 
 to this limitation. 
 
 The railroads of the United States were regarded as private prop- 
 erty subject to the law of the common carrier, and they were so ad- 
 ministered as private property. In the sale of transportation they re- 
 sorted to practices that are still common among those engaged in other 
 branches of commerce. They adjusted rates to markets, to competition, 
 to the pressure of shrewd and effective buyers just as the manufacturer 
 or the wholesale merchant still adjusts his prices to markets, to com- 
 petition, to the pressure of shrewd and effective buyers. The railroads 
 gave rebates and cut rates as manufacturers and merchants still give 
 rebates and cut prices. They charged less to and from places where 
 there was effective competition just as manufacturers and merchants 
 still charge less for their goods where there is effective competition 
 than where such competition does not exist. 
 
 As producers and distributors strove to extend the area of their 
 markets and competition reduced their margins of profit the railroad 
 rate, especially that applied to the coarser and heavier staples of com- 
 merce, became more and more a factor in determining what markets the 
 various producers and distributors could enter. As industry and com- 
 merce developed, complaints increased of discrimination made by the 
 railroads between persons, between localities, and between commodi- 
 ties. These complaints in various cases were more or less well founded, 
 but the truth is that they arose in the main from that process of 
 adjustment entailed by the extension and ramifications of the channels 
 of trade, an adjustment which is still in process. There was discom- 
 fiture because of the loss of large amounts that had been invested in 
 railroad construction, and there was bitterness of feeling, frequently 
 justified, against promoters, speculators, and manipulators. The agi- 
 tation led to the enactment of the Interstate Commerce Act in 1887,
 
 the first measure of Federal regulation and which was based on that 
 clause of the Constitution authorizing Congress to regulate commerce 
 between the States. The intent of that act was simply to apply by 
 Federal statute to interstate commerce the principles of the common 
 law which applied in the separate States, and which there applied to 
 both interstate and intrastate commerce; to abolish rebates, secretly 
 cut rates, and other stealthy devices for securing traffic; to prohibit 
 unjust discrimination between persons, places and commodities. 
 
 It is to be noted that the agitation against the railways came in 
 greatest measure from shippers and communities of lower economic 
 strength who were being worsted in the competitive struggle. They 
 sought the aid of legislatures to obtain that which they could not 
 obtain for themselves with their measure of ability and under the con- 
 ditions which beset them. The essence of the complaint was not that 
 the railways contravened their public duties by stifling traffic, but 
 that in the struggle for existence which is what free competition means 
 they favored, as they were forced to favor, those having economic 
 strength against those who were economically weak. The outcry in 
 its earlier stages was against secret and underhand discrimination. In 
 this it was quite justified and it would seem that but little of such dis- 
 crimination remains. 
 
 The Interstate Commerce Commission has stated that it could not 
 undertake to equalize the natural disadvantages of shippers and of com- 
 munities. However, a member of the Commission once said that it 
 had been established to protect the people against the railways. Al- 
 though it is coming more and more to recognize that its duty is that 
 of an arbiter between the shippers and the railways, there is hardly 
 any doubt that the vast majority of the people regard it as an insti- 
 tution created primarily to curb the railways. It is sometimes claimed 
 that the railways are monopolies and as such that their rates should 
 be controlled by a body acting on behalf of the public. That the rail- 
 roads should be prevented by public authority from charging excessive 
 and extortionate rates is not to be denied. To but a partial extent, 
 however, are they a monopoly and the phase of monopoly seldom 
 enters into the complaints that are brought before the Commission. 
 Nearly all of these complaints, especially those of importance, are of 
 rates originally made by the railways and usually under stress of com- 
 petition, but which do not satisfy all of the shippers.
 
 Under the Constitution and the law of this land, the ultimate de- 
 termination of a question involving a property right rests with the 
 courts. To change this would be to change not only the law but the 
 Constitution. The law may be changed by enactment but only within 
 the limits prescribed by the Constitution. The Constitution itself may 
 be changed, but only through procedure that especially has been de- 
 creed in order that such a change may not be made without the most 
 thorough discussion and registration of the matured consent of the 
 people. 
 
 When the Interstate Commerce Commission was established there 
 began the so-called conflict between the Commission and the courts. 
 Many of the early decisions of the Interstate Commerce Commission 
 were resisted by the railroads and many of these decisions were over- 
 ruled by the United States Supreme Court. As an advocate of the 
 people it was not unnatural for the Commission to fall into errors in 
 the capacity of an arbiter between the people and the railroads, even 
 to make mistakes in the law not because of any lack of ability or 
 honesty on the part of the Commission, but because the inability on 
 the part of an advocate to see both sides of the question is a trait of 
 human nature. The railroad managers, not without sanction from the 
 courts, as evidenced by the decisions which have been quoted, had a con- 
 ception of their rights upon which the Interstate Commerce Commission 
 seemed to encroach. Although the railroads obeyed 90 per cent of the 
 formal orders made by the Commission, they steadily resisted its en- 
 croachments, while the members of the Commission, not satisfied with 
 the measure of their authority, as steadily pressed for an increase of 
 power. The Commission's zeal in advocacy and the natural human 
 resentment of interference led it to be exceedingly unfriendly to ju- 
 dicial control. The early annual reports of the Commission contained 
 numerous criticisms of the courts, even of the Supreme Court and 
 many of them most severe. This use by the Commission of its annual 
 report as an organ of public criticism of the courts has continued to 
 the present although the courts by the nature of their functions are 
 prohibited from making reply to such criticism or engaging in public 
 discussion of the cases that come before them. 
 
 Public sentiment, almost invariably against the railroads, led to the 
 enactment of the further Federal legislation which has given the 
 Interstate Commerce Commission enlarged power over the interstate
 
 8 
 
 railroads of the country. It has prescribed the system of accounts to 
 be used by the railroads, the standard of safety appliances, rules for 
 demurrage, for this, that and the other thing. The railroads unques- 
 tionably have been forced to do things that they ought to have done 
 of their own volition, but which were not done sometimes for lack 
 of funds, sometimes for lack of foresight, and sometimes because of 
 lack of accord between the administrators of various roads. The 
 drastic features of some enactments would have been avoided had 
 railroad managers always exercised the spirit of forbearance and com- 
 promise. 
 
 In accordance with their importance cases in the ordinary course of 
 litigation may be appealed from a lower to a higher court, and most 
 cases of Federal concern may be appealed ultimately to the Supreme 
 Court of the United States. 
 
 The expression "appeal" is used when a case is taken from a lower 
 court to a higher court. The Interstate Commerce Commission is not 
 a court, but none the less its decisions affect the rights of property and 
 therefore a party thereto cannot be debarred from having such a de- 
 cision passed upon ultimately by the courts. The Constitution pro- 
 vides, however, that except in a few classes of cases of peculiar 
 nature a cause cannot be heard first in the Supreme Court. It must 
 come to it on appeal from a lower court. 
 
 As the Interstate Commerce Commission is not a court, the taking 
 of one of its decisions into a court is not designated as an appeal; 
 the case is taken from the Commission to the Court for "review" by 
 the Court. It was originally provided in the Interstate Commerce 
 Law that the decisions of the Commission should be subject to review 
 by the United States Circuit Courts. Appeal would lie from the 
 United States Circuit Court to the United States Supreme Court. 
 
 There have been those who would deny to the courts the right to 
 review the decisions of the Commission. Although this right of re- 
 view was discussed in Congress during the debate on the Hepburn 
 Bill, it is obvious that it cannot be denied. 
 
 It has been enacted that the courts have no jurisdiction to review the 
 wisdom or expediency of the views or action of the Commission 
 within the limits of its administrative function. However, the Su- 
 preme Court has said, "Beyond controversy, in determining whether an 
 order of the Commission shall be sustained or set aside, we must
 
 consider (a) All relevant questions of constitutional power or right; 
 (b) All pertinent questions as to whether the administrative order is 
 within the scope of the delegated authority, under which it purports 
 to have been made; and (c) A proposition which we state inde- 
 pendently, although in its essence it may be contained in the previous 
 ones, viz., whether even although the order be in form within the 
 delegated power, nevertheless it must be treated as not embraced there- 
 in, because the exertion of authority which is questioned has been 
 manifested in such an unreasonable manner as to cause it in truth to be 
 within the elementary rule that the substance, and not the shadow 
 determines the validity of the exercise of the power." 
 
 To expedite the trial of cases brought into the United States Circuit 
 Court after decision by the Interstate Commerce Commission ; in order 
 that such cases might have the consideration of a court that should 
 gain increasing experience with the problems of trafific and in the 
 application of the law as related to them, the Congress established the 
 Commerce Court to review cases brought from the Interstate Com- 
 merce Commission. 
 
 As the Commerce Court which has no powers other than those 
 formerly possessed by the United States Circuit Court, and whose 
 judges rank as did the judges of the United States Circuit Court, 
 has been made the court in which reviews of the decisions of the 
 Interstate Commerce Commission are concentrated, it follows that 
 the long continued conflict between the Interstate Commerce Com- 
 mission and the Courts has now become primarily a conflict between 
 the Interstate Commerce Commission and the Commerce Court. 
 
 The Commerce Court has probably rendered no greater proportion 
 of decisions adverse to the Commission than have the Circuit Courts 
 or the Supreme Court if there be taken the entire record from the 
 organization of the Commission. It must be borne in mind that ordi- 
 narily the orders of the Commission are complied with. It is only 
 when the counsel for the railroad companies feel satisfied that they 
 can clearly demonstrate error on the part of the Commission that they 
 take a case to court. Therefore it may not be a cause of surprise that 
 in a considerable number of these cases, which involve but a very 
 small proportion of the orders of the Commission, the Court should 
 find that the Commission had committed errors that invalidated its 
 orders. This is only to be expected because of that human fallibility
 
 10 
 
 from which members of the Interstate Commission are not exempt. 
 
 The crucial point is whether the Court can determine no more than 
 that the decisions of the Commission have been or have not been 
 within the statutes which specify its authority and therefore is pro- 
 hibited from examining the questions of fact on which the Commis- 
 sion has based its decisions ; or whether the Court to ascertain whether 
 the authority of the Commission has been manifested in a reasonable 
 manner is entitled to make its own examination of the facts. The 
 decision of the United States Supreme Court upon this point is now 
 being awaited. 
 
 Certain differences in the point of view of the Interstate Commerce 
 Commission and that of the Commerce Court may be brought out by 
 a brief survey of a few of the decisions of the Commission whi.:h 
 have not been sustained by the Court. 
 
 It is the practice of the railways to build or to permit to be built 
 from their tracks to a large commercial or industrial plant what is 
 known as an industrial track, or sometimes colloquially as a private 
 siding. Over such a track freight cars are moved by the railway to 
 the industrial or commercial plant into whose receptacles their con- 
 tents are directly unloaded, the time and expense of conveyance from 
 the railway station by dray or truck thereby being saved. In the more 
 densely settled East it has become customary by reason of compet'.tion 
 and other causes that in most of the larger cities the railways haul 
 the cars over the private siding to the plant of the consignee, and 
 take cars from the plant of the consignee to its own track without 
 charging for this service other than the rate that applies to and from 
 the railway terminal on a shipment over a considerable distance. In 
 the State of California whose population all told is about the same as 
 that of the City of Chicago the railways serving San Francisco and 
 Los Angeles have made a charge of $3.50 per car for haulage o\pr 
 the private siding between the railway track and the industrial plant. 
 This charge for many years has been a cause of contention. The Inter- 
 state Commerce Commission held that such service was part of the 
 terminal service which should be performed by the railways without 
 extra charge and it ruled that they should desist from exacting the 
 charge of $2.50 per car when such carload freight is moving in inter- 
 tate commerce incidentally to a system line haul. The railways took 
 the case to the Commerce Court, which held that the railways are
 
 11 
 
 bound only to carry freight to the station to which freight may be 
 consigned or from which it may be shipped, that upon the facts pre- 
 sented it comes to a conclusion different from that reached by the 
 Commission ; that the real question is whether the railway is lawfully 
 entitled to make the charge for the service in question. The Court 
 held that "if the carrier is not bound by law to deliver freight at the 
 industrial plant, and it cannot be successfully contended that it is, 
 then it follows as a necessary consequence that this industrial track 
 service is a special service and is not a service which the carrier is 
 bound to perform for the general tariff charge for the transportation 
 of freight destined to Los Angeles." 
 
 In another case the Interstate Commerce Commission set aside the 
 rate of $1.05 per 100 pounds for the transportation of less than car- 
 load shipments of boots and shoes from Boston and New York to 
 Atlanta, Ga., ruling that a rate exceeding 95 cents per 100 pounds 
 was unreasonable, unjust, and unduly discriminatory. The Com- 
 merce Court said, "By the plain language of the law the power of 
 the Commission to prescribe a rate for the future cannot be exercised 
 unless after full hearing on complaint made it shall be of the opinion 
 that any of the rates or charges whatsoever demanded, charged, or 
 collected by any common carrier or carriers subject to the provisions of 
 the act * * * are unjust or unreasonable, or unjustly discrimina- 
 tory, or unduly preferential or prejudicial, or otherwise in violation 
 of the provisions of the act." The Court goes on to say, "The word 
 'opinion' must be interpreted with reference to the connection in which 
 it is used in the law. It is only after full hearing upon complaint made 
 that the law gives any weight or significance to the opinion of the 
 Commission; that is, it is only when the opinion results from a full 
 hearing that it can be used as the basis of further action by the 
 Commission. It is true that in making up the opinion of the Com- 
 mission its members may and it is their duty to call to their aid their 
 knowledge and experience, but if Congress had intended that the 
 Commission could make up its opinion from the knowledge and ex- 
 perience of its members independent of the evidence in the particular 
 case, then it was idle to provide for a full hearing, as an opinion of 
 the Commission could be formed as well without as with the full 
 hearing. A full hearing not only means an opportunity to be heard 
 by the carrier, but an investigation by the Commission itself of the
 
 12 
 
 lawfulness of the rate in question." The Court holds the allegation 
 that there was no such evidence offered, heard or introduced, to be 
 an allegation of fact ; that is that no evidence was offered to the Com- 
 mission to sustain the finding of the Commission. 
 
 In another case, the Commission had ordered a reduction in rates from 
 New Orleans to Mobile, Pensacola and Montgomery. The Commerce 
 Court, referring to a recent decision of the United States Supreme 
 Court in a case of the same general class, said, "Tested by the prin- 
 ciples laid down in that decision, we are of opinion that the order here 
 drawn in question must be held invalid, as exceeding the delegated 
 powers of the Commission, because there was no substantial evidence 
 to sustain it, * * * having regard to the undisputed evidence ad- 
 duced at the hearing, the existing rates were not shown to be unjust 
 or unreasonable and there was therefore no valid basis for the Com- 
 mission's conclusion." 
 
 In another case, in which the Commission ordered a reduction in 
 the rates on lemons from California to the East, the Court said that 
 the Commission dealt "entirely with matters tending to show the need 
 in this industry of a high-protective tariff against Sicily and, not on 
 traffic considerations, but to compensate for the tariff insufificiencies, 
 ordered a low transportation rate especially to eastern territory"; and 
 that as in the judgment of the Court "the order is based primarily 
 on the assumed authority to protect the industry against foreign 
 competition, it must be held void as beyond the powers delegated to 
 the Commission." 
 
 What perhaps is the most important decision of the Interstate Com- 
 merce Commission that has been taken up to the Commerce Court is 
 that affecting the rates on transcontinental traffic. The Commission 
 divided the country into zones, and specified in percentages the rela- 
 tion that the rates from each zone should bear to the through rate 
 from the Atlantic to the Pacific. That is, it did not prescribe exactly 
 what should be the rates from the respective zones but ordered that 
 they should bear a certain relation to a through rate no matter what 
 that rate might be. The Court said, "In so far as the Commission 
 attempts thus to determine the relation of the long and short haul 
 rates, irrespective of absolute rates, it goes beyond any authority that 
 has been vested in it, for it is not in the power of the Commission to 
 say that 100 per cent, 107 per cent, or any given percentage of an
 
 ]3 
 
 unknown less than reasonable rate to the coast is necessarily a maxi- 
 mum reasonable and a non-discriminatory rate." 
 
 These decisions are examples of the jurisdiction exercised by the 
 Commerce Court to control the action of the Interstate Commerce 
 Commission when the Commission has erroneously taken action ad- 
 verse to the railroads. The Commerce Court has also indicated that 
 it has jurisdiction to control the action of the Commission should it 
 erroneously be adverse to the public interest. 
 
 Whatever be the outcome of the controversy over the relation that 
 the Interstate Commerce Commission bears to the courts, it must be 
 recognized that from whatever viewpoint it be considered the Com- 
 mission is, under our scheme of government, an anomalous institution. 
 Under that clause of the Constitution which gives the Congress the 
 power to regulate commerce between the States, and which was in- 
 tended to keep one State from taking advantage of another, the Con- 
 gress has been considered to have the power to fix the rates of the 
 railways applying to interstate traffic. The delegation of this power 
 to the Commission, while not considered by the courts as a delegation 
 of legislative power, unquestionably is closely related to the legis- 
 lative power. The power accorded the Commission to determine 
 whether an existing rate is reasonable makes it a judicial body. 
 Its mandate to see that the Interstate Commerce Act is enforced 
 makes it an executive body. Therefore the Commission does 
 not fit into our scheme of government under which it is ordained 
 that the legislative, executive and judicial functions shall be 
 separate. This is not to say that the Commission may not be a 
 useful institution. It has done many useful things and has the oppor- 
 tunity to do more. This is not to say that although an anomaly at 
 present it may not become adjusted to our scheme of government, or 
 that our scheme of government may not become adjusted to include 
 the Commission. Indeed, as repeated decisions of the Supreme Court 
 of the United States have recognized the validity of orders issued by 
 th'--- Commission, it must be admitted that the constitutionality of 
 the Commission has been virtually even if not expressly estab- 
 lished. As it stands, it is engrafted upon the government and receives 
 nourishment from the same source that vitalizes the three original 
 coordinate departments, to no one of which can it in truth 
 be said to belong. Thus engrafted upon the government, the
 
 14 
 
 Interstate Commerce Commission exercises a greater measure of 
 power than any other agency of the government, not only over the 
 railways of the United States, but through its power over railway 
 rates over the entire industry and commerce of the United States. 
 
 As we have seen, the popular and legal conception of the relations 
 of the railroads to the government has undergone marked changes 
 and, as we all know, there is a possibility of still more radical change. 
 The era of corporate amalgamation marks a transition in the industrial 
 and commercial status which has found effect in modifications of the 
 laws. As the problems developed by this period of transition are not 
 as yet thoroughly understood, the laws to which they have given rise 
 are as yet incoherent. 
 
 Inasmuch as the railroads of this country have been constructed 
 and maintained by private capital that capital must be protected in the 
 rights inherent in property. To do otherwise would impede their 
 operation, impair their maintenance, and obstruct their development. 
 There is but one way in which the obligation of the government to 
 the railroads as private property can be removed, and that is through 
 their purchase by the government. The experience of other countries 
 in the ownership and administration of the railroads is sufficient to 
 give the people of the United States a long pause before taking this 
 step. 
 
 That private property must be used for the public good applies with 
 redoubled force to the railways. This does not mean, however, that 
 their public relations may be considered a basis for their oppression 
 by the public any more than their status as private property can be 
 made the basis for oppression of the public by them. 
 
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 UNIVERSITY OF ILLINOIS-URSANA 
 
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