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viva voce testimony. In any event, a majority of the Commission must consider the testimony before the case is decided. Both parties appear by counsel or in person, briefs are filed and arguments heard. The whole case proceeds exactly as it would proceed if it were a case in court.
When the case is decided the Commission promulgates its opinion, which consists of a statement of the facts found and of the conclusions of law applicable to those facts. These opinions are published in the same way that the decisions of the courts are published. If, in the opinion of a majority of the Commission, the complainant is entitled to relief, the Commission makes an order directing the carrier not to do the thing complained of, in accordance with its opinion.
Now, after all this has been gone throngh with, what is the effect of the order thus made? Really nothing whatever. If the carrier declines or neglects to obey, it suffers no penalty and incurs no loss. The act provides that any person interested in an order of the Commission, or that the Commission itself, may file a petition in the United States circuit court in the proper district, asking to have the order enforced, and the court is instructed to determine whether the order is a proper one, and, if so, to enforce it. In this proceeding the report of the Commission is prima facie evidence of the correctness of the facts found. If the order is for the payment of money, either party is entitled to a trial by jury in the circuit court. Ordinarily it is not, and in that event the court proceeds to hear the case as a court of equity.
Upon the trial before the Commission the testimony is all reduced to writing, but no part of this can be used, except by stipulation, upon the trial in the circuit court. The testimony upon both sides must be entirely retaken. Nor is either party in any way confined to the testimony previously given nor the issues previously made. The result, of course, is that the case made before the circuit court may be entirely different from the case made before the Commission, so that the proceeding is not, in any proper sense, a review of the correctness of the decision of the Commission. If the circuit court, after a full hearing, is of opinion that the order ought to be complied with, it so decrees; if not, it refuses to enforce the order. From the decree of the circuit court, either enforcing or refusing to enforce the order, an appeal lies to the circuit court of appeals, and from that court, in moste cases, to the United States Supreme Court.
This, in brief, is the procedure at the present time; and what, if any, defects bas it developed in actual experience!
First. The same case is not tried before the coạrt which is tried before the Commission. The trial before the Commission, therefore, with all its attendant expense and consumption of time, goes practically for nothing. The decisions of the Commission are made upon one state of facts, while the decisions of the courts may be, and usually are, upon an entirely different state of facts. When the court refuses
to enforce a decree of the Commission, it apparently decides that the order was wrong, although upon the facts before the Commission it might have been absolutely right. If there is to be a trial before the Commission at all, some effect should be given to the outcome of it. A procedure like the present one tends to bring that body into disre. pute and is grossly unfair to it and to the complainants who appear before it.
Second. The delay which is attendant upon an attempt to enforce the order of the Commission is unjust to the public. We have already seen that the great majority of our decisions in the past have been, and that almost all our decisions in the future must be, under either the first or the third section, and that the only remedy for a violation of the provisions of these sections is by prohibiting that violation for the future. No satisfactory remedy can be given for what has been already done. If a carrier is allowed to exact an excessive freight rate, the. public, or that part of the public which is injured, never can be compensated by any money payment for the injury. The average duration of the cases which have been actually prosecuted for the enforcement of the orders of this Commission has been about four years. Of the cases which are now pending in the court, the average length of time since they were begun before the court is something over two years.
Third. Delay of this kind is fatal to a measure of regulation. It is of the very essence of a regulating body that its power, however limited, shall be capable of immediate application. Unless it has some real power of that sort, it can command neither the respect nor the obedience of those subject to its control. The best part of the work of this Commission ought to be and naturally would be by way of informal discussion with and suggestion to carriers; but why should the suggestion of this Commission, looking to the reduction of a rate, be acted upon when its formal order directing that reduction can not be made obligatory for four years, while during all that time the carrier has nothing to lose and everything to gain by continuing to charge the excessive rate?
This same fact deters shippers from the making and prosecution of formal complaints. An extensive shipper is dependent upon the railroad company. That company may completely crush him before we can afford him the slightest relief, and in spite of any action which we can take in his favor. If it does not openly discriminate against him, there are innumerable ways in which it can annoy and injure him. Shippers fully understand this. Complaints received by us are often accompanied by the request that the name of the complainant may not be made known to the carrier. If we could grant speedy and effective relief, this would not be true. Carriers would then fear the complaint and treat fairly the complainant.
Fourth. Our order, when made, binds nobody. Nobody is compelled
to obey it. Nobody suffers any penalty for refusing to obey it. The carrier is under every inducement not to obey it. During the first year the orders of the Commission were uniformly complied with, but latterly such has not been the case. We do not intend to suggest that the railroads refuse the Commission all proper respect. Upon the contrary, they treat it with the most uniform courtesy. We have no doubt that the majority of carriers are sincerely anxious to obey its recommendations, and would do so in the great majority of cases if they could without prejudice to what they consider their interest. The great difficulty is that a single contumacious carrier forces every other one to go along with it. If the reduction of a competitive rate is ordered, the refusal of one necessitates like action upon the part of every other carrier. If a single participating carrier refuses to recognize a differential established by us, every other carrier must do the same.
What is happening to-day (November 1) illustrates the irony of the situation. The fourth section provides that carriers shall not charge more to an intermediate than to the more distant point. The intent of this was to prevent them from exacting from local stations exorbitant tariffs for the benefit of competitive points. Incidentally it prevents rate wars at competitive points, since, if a line is obliged to reduce its rates to all intermediate points, it feels sooner the effect of the low rate at the competitive point.
About October 15 the Chicago, Burlington and Quincy Railway Company announced a reduction between Chicago and Denver and points taking the Denver rate, called “Colorado common points,” of about 33} per cent, and the reduction was met by the other lines between those points—the Union Pacific, the Missouri Pacific, the Santa Fe, and the Rock Island. This reduction left the rates to intermediate points higher than the rate to Colorado common points. Upon having their attention called to the matter by the Commission, the Rock Island and the Santa Fe lines adjusted their intermediate rates. Later the Commis. sion began proceedings against the three roads which were still apparently violating the fourth section, and thereupon the Missouri Pacific and the Chicago, Burlington and Quincy reduced and brought their rates into conformity with the law. This left the Union Pacific as the only one in apparent violation of the act.
Now, what is the result to these six lines? The five lines which obey the law lose upon all traffic carried to intermediate stations which are not competitive. The Union Pacific is obtaining from its illegal charges to these intermediate points the means to continue its warfare against the other lines. The carriers which obey the law lose heavily, while the carrier which is in apparent violation of the law draws from that very violation the sinews of war with which to continue its contest against its law-abiding rivals. If a formal order is made against this carrier it changes nothing. It is not to be wondered that railroads often neg.
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lect to follow the suggestions and orders of the Commission. The wonder is that they ever obey them.
All these defects may be summed up in a single sentence: The proceedings and the order of the Commission go for nothing. Such is the theory of the present act as interpreted by the courts. An eminent circuit court judge, afterwards a member of the Supreme Court of the United States, declared, in substance, in a well-considered opinion, that the Interstate Commerce Commission was a new adjunct of the circuit court for the purpose of informing that tribunal whether some alleged violation of the interstate commerce law required its judicial investigation.
It is difficult to understand why this, and no greater, effect should be given to the conclusions of the Commission, and it is impossible to suppose that Congress understood this to be the real import of the act. Investigations before the Commission are conducted with all the formality of proceedings in court. Parties have the same opportunity to be informed of the charges against them. They produce testimony upon the issues formed, and are heard by counsel in exactly the same way. The body which tries the issues is selected with special reference to its fitness for the trial and determination of just such questions. Cases submitted are deliberately decided, and the law requires that written reports shall be filed. Why, after all this, should the decision when reached be meaningless.
This Commission is said to be in some sense discharging, by delegation, the functions of Congress itself. What would be thought if an act of Congress should contain this provision: “If any citizen of the United States feels that this law should be obeyed he may apply to the circuit court, and if that court is of the opinion that it ought to bave been enacted in the first instance, it may enforce it.” We believe that, subject to whatever review by the courts may be thought proper, the orders of this Commission should be not merely prima facie evidence, but conclusive upon all parties concerned. They are not technical judgments or decrees; but it is difficult to find a reason for making the decree of an inferior court conclusive, unless set aside, which does not apply with equal force to the orders of this Commission.
TO WIAT EXTENT SHOULD ORDERS BE SUBJECT TO JUDICIAL
If this view should prevail, to what extent and in what manner ought the orders of the Commission be made the subject of judicial review? It is generally understood that under the Constitution of the United States an order for the payment of money can not be enforced without giving the defendant an opportunity for a trial by jury. Such orders must therefore stand very much as they do at present. They are, however, a very insignificant part of the entire number, and from their very nature will be such that ordinarily the carrier will comply
with them without the necessity of any steps for their enforcement. The great bulk of our orders, as already stated, must pertain to the future. They will be orders fixing either a maximum or a minimum rate. The only power which courts can exercise over orders of this sort is to vacate them. They can not be invested with authority under the Federal Constitution to make and enforce a modified order.
For what reasons, then, should the court be allowed to vacate an order? The only appeal which lies from the decrees of the English railway commission is upon questions of law. There is no appeal upon questions of fact as to which the decision of the commission is final. This is analogous to the verdict of a jury or the findings of fact by a special master in chancery under the equity practice of some States.
Much might be said in favor of applying the same idea to the orders of this Commission. It can hardly be expected that ordinarily the case, upon proceedings in review, will come before a tribunal which is in theory better fitted to determine questions of fact than the one which passes upon them in the first instance.
Upon the other hand, the right of review is always a safeguard. It puts a certain restraint upon the judgments of any tribunal. It would not probably embarrass the practical operation of the law, and it might prevent the occasional miscarriage of justice if the whole case, both upon the law and the facts, were submitted to the court. The question for review would then be, Is the order lawful, just, and reasonable! If so, the proceedings in review are dismissed. If not, the order is vacated. No new order can be made by the court. If the order is vacated, the case should be sent back to the Commission for further proceedings.
The right to apply for review should be exercised within a time limited or not at all. When application is made for review, the Commission should send to the court the testimony taken before it, which should constitute the record upon which the case is reviewed, unless the court is of the opinion that there is testimony which is material to a proper disposition of the case and which could not or under all circumstances ought not to have been given before the Commission. In that case the court should instruct the Commission to take and send up the additional testimony.
WHAT EFFECT SHOULD BE GIVEN ORDER PENDING PROCEEDINGS
The important question is, What effect should be given the order of the Commission pending the proceedings for review? If the carrier is obliged to obey an improper order, ordinarily it can obtain no redress. If the carrier is not obliged to obey a proper order, the public can ordinarily obtain no redress. When a question has been fairly and fully tried before the Commission, it appears to us that ordinarily the order