other person on like and contemporaneous shipments. The result was to render successful prosecutions almost impossible. This defect seems to have been remedied. The new law in most explicit terms makes the published tariff the standard of lawfulness, and any departure therefrom is declared to be a misdemeanor. It is sufficient now to show that a lower rate than that named in the tariff has been accorded. A further provision of the law makes it lawful to include as parties, in addition to the carrier complained of, all persons interested in or affected by the matters involved in the proceeding. Under the former law carriers only could be made parties defendant; under the amended law shippers may also be included. Another provision confers jurisdiction upon the circuit courts of the United States to restrain departure from published rates, or "any discriminations forbidden by law," by writ of injunction, or by other appropriate process. 184. The Provisions of the Hepburn Bill11 BY LOGAN G. MC PHERSON The Hepburn Bill took effect on August 28, 1906. The bill provides: (a) That as "common carriers" under the Interstate Commerce Law shall be included companies transporting oil by pipe lines, express companies, sleeping car companies, all switches, tracks, terminal facilities, and that "transportation" under the law shall include all cars regardless of their ownership, and all service in transit. (b) Prohibits the issue of passes, with certain specified exceptions that cover mainly employes, fixing a penalty in case of violation that shall apply to both the giver and the recipient. (c) Makes it unlawful after May 1st, 1908, for any railroad company to transport for sale any commodities in which it may have a proprietary interest, except lumber and its products. (d) Provides that a common carrier shall provide, when practicable, and upon reasonable terms, a switch connection for any applicant who shall furnish sufficient business to justify its operation. (e) Makes more explicit the specification as to the filing of tariffs, especially providing for the posting and filing of through tariffs; fixing penalty for violation. "Adapted from The Working of the Railroads, 255-259. Copyright by Henry Holt & Co. (1907). (f) Provides that "every person or corporation, whether car rier or shipper, who shall knowingly offer, grant, give or solicit, or accept, or receive rebates, concession, or discrimination, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand or more than twenty thousand dollars." Moreover, any person, whether officer or director, agent or employe, convicted of such misdemeanor, "shall be liable to imprisonment in the penitentiary for a term not exceeding two years, or both fine and imprisonment in the discretion of the court." In addition, the acceptor of any rebate shall forfeit to the United States three times the amount of the rebate. (g) Provides for the publication of the reports and the decisions of the Commission and their acceptance as evidence. (h) Empowers the Commission, if upon complaint it finds that a rate, or any regulation or practice affecting a rate, is “Unjust or unreasonable, or unjustly discriminatory, or unduly preferential or prejudicial," to determine and prescribe a maximum rate to be charged thereafter and modify the regulation or practice pertaining thereto. (i) Empowers the Commission to award damages against a carrier in favor of a complainant. (j) Provides for forfeit to the United States, in case of neglect to obey an order of the Commission, in the sum of five thousand dollars for each offense, each violation and each day of its continuance to be deemed a separate offense. (k) Empowers the Commission to apply to a circuit court for the enforcement of its order, other than for the payment of money; for the appeal by either party to the Supreme Court of the United States; and that no order of the Commission shall be suspended or restrained, except on hearing, after not less than five days' notice to the Commission. (1) Provides for the rehearing by the Commission, upon application, at its discretion. (m) Authorizes the Commission to require annual reports from all common carriers, that shall contain specified information ; to prescribe the form of any and all accounts, records and memoranda to be kept by carriers, making it unlawful for the carriers to keep any other accounts, records, or memoranda than those prescribed and approved by the Commission; provides that all accounts of the carriers shall be open to the inspection of the special agents, or examiners employed by the Commission. (n) Provides that a common carrier issuing a through bill of lading shall be responsible for loss, damage or injury to the prop erty covered thereby upon the lines of any company over which it may pass, leaving it to the line issuing the way-bill to gain recovery from another line upon which the loss, damage, or injury may have occurred. (0) Enlarges the Interstate Commerce Commission from five to seven members, with terms of seven years, increasing the salary from seven thousand five hundred to ten thousand dollars per annum. 185. The Mann-Elkins Act12 The Interstate Commerce Bill, as it was reported out of conference on June 14, contains the following provisions : I. It creates a court of commerce for the enforcement of orders of the Interstate Commerce Commission.13 2. It provides that no railroad shall charge any greater compensation for a shorter than for a longer haul, except in cases where such action is authorized after investigation by the Interstate Commerce Commission. 3. It provides that railroads shall be required to state in writing the rate or charge applicable to a described shipment. 4. The Interstate Commerce Commission upon complaint is authorized to determine and prescribe the just and reasonable individual or joint rate as the maximum to be charged and to specify the individual or joint classification, regulation, or practice which it deems to be fair, just, and reasonable. 5. The commission may suspend the operation of any new rate, classification, regulation, or practice for a period not exceeding 120 days, and extend the time of suspension for a further period of six months, after which time the new rate, classification, regulation or practice will become effective unless the commission orders to the contrary. 6. The commission may establish through routes and joint classifications and joint rates as to the maximum to be charged whenever the carriers themselves refuse to do so. 7. The right is given to the shipper to designate one of several through routes by which his property shall be transported to its destination. 8. Every failure to obey an order of the commission shall be punished by a fine of $5,000. 12 Adapted from articles in the Railway and Engineering Review, L, 546547, 587 (1910). 13This court was practically abolished in 1912 by the failure of Congress to make financial provision for its support. 9. Copies of classification, tariffs, etc., furnished to the commission shall be public records. 10. Authority is granted for the appointment of a commission to report upon the advisability of the physical valuation of roads and the control of railroad capitalization. D. ASPECTS OF RATE-MAKING 186. Freight Classification11 BY WILLIAM Z. RIPLEY Imagine the Encyclopedia Britannica, a Chicago mail-order catalogue, and a United States protective tariff law blended in a single volume, and you have a freight classification as it exists in the United States at the present time. Such a classification is, first of all, a list of every possible commodity which may move by rail, from Academy or Artist's Board and Accoutrements to Xylophones and Zylonite. In this list one finds Algarovilla, Bagasse, "Pie Crust, Prepared;" Artificial Hams, Cattle Tails and Wombat Skins; Wings, Crutches, Cradles, Baby Jumpers and all; together with Shoo Flies and Grave Vaults. Everything above, on, or under the earth will be found listed in such a volume. To grade justly all these commodities is obviously a task of the utmost nicety. A few of the delicate questions which have puzzled the Interstate Commerce Commission may give some idea of the complexity of the problem. Shall cow peas pay freight as "vegetables, N. O. S., dried or evaporated," or as "fertilizer"-being an active agent in soil regeneration? Are "iron-handled bristle shoe-blacking daubers" machinery or toilet appliances? Are patent medicines distinguishable, for purposes of transportation, from other alcoholic beverages used as tonics? What is the difference, as regards rail carriage, between a percolator and an every-day coffee pot? Are Grandpa's Wonder Soap and Pearline to be put in different classes, according to their uses or their market price? When is a boiler not a boiler? If it be used for heating purposes rather than steam generation, why is it not a stove? What is the difference between raisins and other dried fruits, unless perchance the carrier has not yet established one industry while another is already firmly rooted and safe against competition? The classification of all these articles is a factor of primary importance in the making of freight rates both from a public and "Adapted from Railroads, Rates and Regulation, 297–304. Copyright by Longmans, Green & Co. (1912). private point of view. Its public importance has not been fully appreciated until recently as affecting the general level of railway charges. So little was its significance understood, that supervision and control of classification were not apparently contemplated by the original Act to Regulate Commerce of 1887. The anomaly existed for many years of a grant of power intended to regulate freight rates, which, at the same time, omitted provision for control over a fundamentally important element in their make-up. Control over it has now been assured beyond possibility of dispute. The freight rate upon a particular commodity between any given points is compounded of two separate and distinct factors: one having to do with the nature of the haul, the other with the nature of the goods themselves. Two distinct publications must be consulted in order to determine the actual charge. Although both of them usually bear the name of the railway and are issued over its signature, they emanate, nevertheless, from entirely different sources. The first of these is known as the Freight Tariff. It specifies rates in cents per hundred pounds for a number of different classes of freight, numerically designated, between all the places upon each line or its connections. But it does not mention specific commodities. The second publication which must be consulted supplies this defect. This is known as the Classification. Its function is to group all articles more or less alike in character, so far as they affect transportation cost, or are affected in value by carriage from place to place. These groups correspond to the several numerical classes already named in the freight tariff. Thus dry goods or boots and shoes are designated as first class. It thus appears, as has been said, that a freight rate is made up of two distinct elements equal in importance. The first is the charge corresponding to the distance; the other is the charge as determined by the character of the goods. Consequently, a variation in either one of the two would result in changing the final rate as compounded. Freight tariffs and classifications are as distinct and independent in source as they are in nature. Tariffs are issued by each railway, by and for itself alone and upon its sole authority. Classifications, on the other hand, do not originate with particular railways at all; but are issued for them by coöperative bodies, known as classification committees. These committees are composed of representatives from all the carriers operating within certain designated. territories. In other words, the United States is apportioned among a number of committees, to each of which is delegated, by the carriers concerned, the power over classification. New editions of |