this provision the prosecuting officer must show that the man had knowledge of the law before he committed the offense?

Mr. KERNAN. No, sir; I think the prisoner is presumed in the first instance to have had knowledge of the law; every man is presumed to have that, but I think he may show in defense his ignorance of it. That is a matter of defense. The onus is not on the district attorney to show that the man knew the law. The onus is upon the prisoner to show that it was done in ignorance.

The CHAIRMAN. That is only in mitigation of the punishment. That would be after the trial.

Mr. KERNAN. No, sir; that is on the trial.

The CHAIRMAN. It would mitigate matters after the trial.

Mr. ADAMSON. Ignorance of the law can not acquit a man.

Mr. KERNAN. Ignorance of the law or the statute will acquit a man in a criminal prosecution.

Mr. ADAMSON. That is a new law.

Mr. KERNAN. I maintain that is the law.

Mr. COOMBS. In what State is that in vogue?

Mr. TOMPKINS. How can a man have ignorance of the law when he is assumed to have knowledge of it?

Mr. KERN V. Take the milk case

Mr. MANN. Nobody could know whether he had knowledge of the law except the man himself, and all he would have to do would be to come in and swear that he did not have it, and he would go free.

Mr. KERNAN. In the milk case, the Murtagh case, of the Verona cheese factory, there was a penalty for watering milk, and I was employed in bringing the action of the Verona cheese factory against this man, and we proved our case and he proved that the water was put in in his absence by his wife and his children, and that he drew the pay for it from the factory, and we claimed that he was liable under the statute, inasmuch as the act of the agent in charge of the business is the act of the principal, and therefore he was liable individually under the act.

The case went to the court of appeals, and they reversed it on the ground that under the statute, notwithstanding he was responsible for the acts done in that case by the agents of the business, he could only be charged by showing his actual knowledge of the violation.

Mr. MANN. Of the fact?

Mr. COOMBS. Not of the law.

Mr. KERNAN. Actual knowledge of the violation.

Mr. COOMBS. That would make him an accessory. He had to have a knowledge of the offense and not of the law.

Mr. KERNAN. It goes to show that he had to have not only knowledge of the fact and the statute, but even on proof of a violation of the statute absence of intent is an excuse in a criminal prosecution.

Mr. COOMBS. The intent goes to the ingredients of the defense. Mr. KERNAN. If it goes to the ingredients of the offense, then I think it ought to go to the extent of knowledge and willfulness of the violation.

I notice here you might amend that section in that way. It might be provided that the carrier can not be punished unless he willfully violates the law.

Mr. COOMBS. Strike out "willfully" and put in "unlawfully."

Mr. KERNAN. In this first section you can put in there "Any per

son who willfully" commits these acts. That would remedy that defect, if I am wrong and you are right, and I presume you are, about this other proposition.

Now, the other thing that I want to call attention to which is a very serious defect in the original act, is remedied here. The provision is:

Every corporation which shall be guilty of any act or omission, which if done by an individual would be a misdemeanor under the provisions of this act, shall be deemed guilty of such misdemeanor and shall be subject to the same penalty which is provided against the individual.

Under the present interstate-commerce act the corporation goes scot free. It is not indictable for the offense, and the result is that all the efforts of the Commission have to be directed toward the subagents and employees who do these acts which, under the interstate-commerce act, are punishable.

That has always been a defect in the law, and this amendment provides that corporations should be the ones responsible for the acts, where the acts are done by them or their agents; that they should be made liable and no protection given them. The result of that is that you can not convict the agent before a jury. He can turn around and swear that the corporation did it under its directions and rules, and so forth, and it reaped all the benefit.

Now, that is a good provision, and the next which is proposed, the last to be considered, is giving the Commission the power

to determine what rate, relation of rates, classification, or other practice should be observed in the future in order to correct the wrong found to exist, and it shall order said defendants to observe the same.

That is to be after a full hearing; "after full hearing had." Of course that should be so. That is right. The hearing should be full and complete before there should be any order entered by which any rate should be changed for the future. And I intend to say more than I have about that; I think that was the original intention of the original act. I know that our Commissioners who appeared before Senator Cullom's committee, and who had been serving for years before State boards who had recommendatory powers, pointed out that our experience had been such as to show that at first, when a commission is new, or in a small State where there is not too much vast railroad business for it to consider, so that its action is lost sight of, these recommendations have power. In Massachusetts they had force for a number of years, and when I was on the New York commission as the first chairman, the first four years of its existence, the first question which came up and which we decided about rates, and in which we reduced the rate to some extent, the newspapers were full of it.

It was a new body, and its decisions were watched and given prominence, and talked about, and there was a focus of public interest upon the railroads upon that subject-as to whether they observed or did not observe the findings of the Commission. If the finding was right the public sustained it, and the railroad was under that kind of bias of public opinion that made them observe it. But after a time we found that the Commission ceased to be an object of much interest in regard to this question; that its recommendations lost power, and now they do not amount to anything there or anywhere else. There is no regard paid to them whatever.

Mr. TOMPKINS. Are you through on that point!

Mr. KERNAN. Yes, sir.

Mr. TOMPKINS. Inasmuch as the general debate must be closed on the floor of the House in a very short time on an important measure, I move that we now go into recess until to-morrow morning at half past 10 at this point.

(The motion was seconded, put by the chairman, and carried.) Thereupon, at 11.10 a. m., the committee adjourned until to-morrow, April 19, 1902, at 10.30 o'clock a. m.

SATURDAY, April 19, 1902.

The committee met at 10.30 o'clock, a. m., Hon. William P. Hepburn in the chair.

STATEMENT OF MR. JOHN D. KERNAN Continued.

Mr. Chairman, I want to say that I have looked at the question of law raised by Mr. Adamson yesterday, and he is right about that; that mistake of law does not excuse the doing of a prohibited act. I ought to have said that I have had nothing to do in my life with criminal law and I do not pretend to be an expert on that question. But the distinction in our New York courts seems to be this-and there are a good many decisions on this. In the case of Gardner v. the People (62 Court of Appeals), the court uses this language:

The defendants made a mistake of law. Such mistakes do not excuse the commission of prohibited acts. The rule on the subject appears to be that in acts mala in se the intent governed; but in those mala prohibite the only inquiry is, Has the law been violated? The act prohibited must be intentionally done. A mistake as to the fact of doing the act will excuse the party; but if the act is intentionally done the statute declares it a misdemeanor, irrespective of the motive or intent.

I had in my mind that in some instances there were prosecutions of crime where the knowledge of the law had been a question found to be necessary in order to constitute the offense; but those apply only to offenses that are offenses per se and not statutory.

Where there is a statute on the subject the rule seems to be that knowledge of that statute is presumed and the violation of it, regardless of knowledge of the statute, is an offense.

Now, that leads me to suggest that in that first clause there it would be wise to provide that that penalty of not less than $5,000 or more than $10,000 should only be imposed on the corporation, and that that should be amended so as to provide that any agent of a carrier or any shipper; that the penalty upon him should be only within the discretion of the court, not exceeding a certain amount, not requiring the court to impose any definite amount. That, you see, would permit a court in all cases of that character to take into consideration all circumstances that went to mitigate the offense, and to show that the party violated the statute, perhaps, inadvertently, and thus to graduate the fine down to a nominal matter.

It seems to me with that amendment to this section it would be all right, and would meet the difficulty and objection presented by Mr. Mann to the effect that the imposition of that penalty of $5,000, it being fixed, as inexorable, either upon an innocent freight agent, perhaps, or an innocent shipper, or one where the circumstances show no

particular intent to violate the law, that that would be right and make it perfectly fair.

Another thing. Your honor suggested yesterday that perhaps a remedy might be secured by requiring the carrier to continue the cut rate as a public rate, and if that could be confined in its operations to results to the offending carrier, it might, perhaps, afford a remedy; but the difficulty about that is that the cut rate imposed upon one competing railroad requires all of its competitors to make the same rate. The result would be you would be compelling innocent parties in that case to conform to the cut rate for which they were in no way responsible.

Now, another thing in this bill which is very important

The CHAIRMAN. How is that operated? I supposed that all carriers from common points do substantially agree upon a rate?

Mr. KERNAN. Yes, sir.

The CHAIRMAN. I think they must do that

Mr. KERNAN. Yes, sir.

The CHAIRMAN (continuing). In making up their rate tables?
Mr. KERNAN. Yes, sir.

The CHAIRMAN. Are there cases in your judgment where any given company would prefer a lower rate than that and, preferring it, obtain it under this method? If they were content with a cut rate that would be imposed upon them perpetually by the statute, if they would be willing to cut the rate for the purpose of getting that particular rate, why not agree to it in the first instance?

Mr. KERNAN. What is that, sir?

The CHAIRMAN. Why not agree to it with their competitors in the first instance?

Mr. KERNAN. There would be no object in doing that, because then the cut rate being on all of the lines would afford no advantage to one over the other.

The CHAIRMAN. That was what I thought.

Mr. KERNAN. The object of the cut rate made by a road is always to get under its competitors and get business, and if the cut rate was agreed upon by all the roads there would be no advantage in it, you

see.

The CHAIRMAN. Do you suppose in the ordinary practice of cutting rates, the cut rate is one that the company could afford to maintain for all of its business?

Mr. KERNAN. As a rule the cut rate is not regarded as remunerative in itself. That is the general railroad custom about it. It is not regarded that rates cut for the purpose of getting business are remunerative, it is not regarded that they will be; it is simply to get the traffic, and having got it hoping to maintain it and then eventually get something out of it.

I want to say another thing about the first section in reference to these offenses, there on page 2, line 2, you might insert "knowingly and willfully," so it will read, "Any person who knowingly and willfully procures or solicits to be done," etc. That would perhaps prevent that section from punishing innocent persons. That might be a suggestion you might think about; whether it might not be well to insert "knowingly and willfully.

Another very important provision of this act is this: The Commission is now authorized to take testimony, and its findings are prima

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facie evidence in a court, but invariably when you go into a court with the testimony before the Commission, and the findings of the Commission-I have had it myself a half a dozen times in my own experience the railroad apparently pays no attention to the fact that the testimony has been taken before the Commission on the part of the complainant.

It withholds its testimony before the Commission and does not give any, in the hopes the Commission will make some mistake of facts or will not get at the facts and that this order will not be of any use. The Supreme Court of the United States has commented upon it in one of its decisions, and has said that that is a very serious evil, and that in some way the railroads ought to be compelled to display their full hand before the Commission. At present when you go into court with the findings of the Commission and the testimony of the railroad company comes in and tries to fight the case on affidavits, which is the most unsatisfactory way of trying one of those issues; you get into conflicts of affidavits you can not have an opportunity to cross-examine the affiant, and thus all sorts of difficulties as to the evidence arise.

In one case I had the most voluminous affidavits come in on behalf of the railroad as to facts, none of which had been presented before the Commission at all. We were in a position where we had to make affidavits, and thus the case became a fight over affidavits, which is an unsatisfactory way to try a case.

This provides that in case of the railroad appearing before the court and desiring more testimony, that then it shall be sent back to the Commission to complete the record. In other words, the place where part of the testimony is taken is the place where the entire testimony should be completed in order that the sequence of facts and the omission of things that have been already allowed, and all that, may be somewhat controlled.

The CHAIRMAN. Right there, if you will allow me. In the procedure, in order to bring about that order to the Commission for additional testimony, you would require the defaulting party or the railroad to make such a showing as the court would require in a motion for a new trial on newly discovered testimony? You would require some such procedure as that?

Mr. KERNAN. I do not think I would make the rule as stringent as that.

The CHAIRMAN. What procedure would be necessary in order to secure the taking of additional testimony?

Mr. KERNAN. Nothing, except a mere desire to take further testimony. I would not make it the rule that applies to cases as to newly discovered testimony. The rule there is that the party must not only show that the testimony has been newly discovered, but that with ordinary diligence it could not be produced in the first instance. you apply that rule here, railroads might be shut out because-well, they might not choose to attend the hearing of the Commission and put in testimony. I would not for that reason cut them off. We will not accomplish anything in the end of value unless we have all of the facts presented before the Commission and the court to get at what is right about it.

An order based upon personal testimony, an order which is, therefore, wrong in not being comprehensive enough to cover the situation, could not do anybody any good, even although it be one giving a lower