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possibility of inequality and unfair discrimination might be removed. The charges for transportation from the Atlantic seaboard to each of these trade-centres, when added to the charges from such points to the ultimate destination of the goods, have been made the same via all routes, no matter at which one of the trade-centres the goods were purchased by the consumers.

Thus, if goods imported or manufactured at New York were wanted at a little inland town in Nebraska, they might be purchased at New York, Chicago, St. Louis, Omaha or Kansas City, and the total charge for transportation from New York to destination would be the same in every case; the charge for transportation from New York to Chicago when added to the rate from Chicago to destination being the same as the total charge for transportation from New York to St. Louis, plus the rate from St. Louis to the destination, and so in every other case. In this manner all unreasonable discrimination has been avoided and all jobbing points have had a fair and equal field throughout the West to obtain all the trade that they could command upon even terms.

Under the Interstate Commerce Law this situation of affairs has been changed, and changed for the worse. The tendency is now to throw all business upon the shortest lines regardless of the business interests that have been built up upon the longer routes. Each centre of trade has a little section of the country surrounding it in which it has an advantage over all its competitors, but everywhere else it is at a disadvantage as compared with some one or more of the towns with which it has heretofore competed upon even terms.

66 The Interstate Commerce Commissioners have done something towards removing the difficulty so far as through shipments are concerned by ruling that the longer lines may make the same rates that are established by the short lines, and may do this without reducing their rates for hauling a part of the way over the same track. This, however, only emphasizes the injustice that is inflicted upon the jobbing towns that are situated upon the longer routes, as they now see freight carried from New York through their own city to western destinations at a through rate materially lower than the sum of the rates from New York to their city plus the charge for transportation therefrom to the ultimate destination. They therefore find it impossible to longer compete for much of the trade that once was theirs, and much of the dullness that is gradually settling down upon our western cities is owing to this cause. It is evident, therefore," continues Mr. Vining, “that the law in this way creates an injustice far greater than

any

which it was intended to remove; an injustice far greater than the most reckless of railroad officers would have dared to inflict upon the patrons of his road.” When the Interstate Commerce Commission, therefore, in the Louisville and Nashville case held that the public welfare required railways to be operated subsequently to the Act, precisely as they had been operated before it, and the only public safety was to overlook the Act completely, it kept to the line of truth and soberness, no doubt. But how has it helped the railways ? Clearly they must get together and settle the transportation problem for themselves, or else let it

go

unsettled. It was clearly unfair that this dog-in-the-manger law, this ironclad statute which forbade them on peril of death to pool their issues, either to discuss or settle them themselves, and at the same time declined to settle their issues for them—which compelled them to fight their costly fight at the expense of their stockholders and forbade them to treat for peace—it was clearly unfair that this statute should be other than Pickwickianically enforced. So, long ago, the warring railroad companies came together in 'conference,' committee,' or 'synod,' and terminated the ruinous battle I have above alluded to. Only (in deference to the statutes of united Germany, and the Bismarck policy whose spirit has lately materialized among us in the shape of an interstate commerce law), whatever they called it, they were mighty careful not to call it a "pool.”

CHAPTER XV.

66

THE

ACT OF GOD

AND THE RAILWAY COMPANY

So far back that memory of man runneth not to the contraryimported into the very earliest English jurisprudence from the Roman Code, was the theory of Nemesis, of the Inevitable, the Unavoidable. When it reached our Motherland and Christian times, and clamored for recognition in the Common Law, our reverent Norman-Saxon lawyers, to be sure, called it the “ Act of God.But it was the Stoic “Fate” of the Roman-his “Nemesis,” his “ Adrastea,”—just the same; and the earliest English digests declared that “the act of God or of the public enemy” discharged all legal responsibility.

The Roman law having always been, as it still is, the law of continental Europe, it was inevitable that such American colonies as were settled from the continent should retain the doctrine of the “act of God," and that when the Spanish brought it to Mexico, and implanted it in a community saturated with superstition, it should have augmented quite as rapidly as its adumbration has waned with us, Religious faith being in Mexico to-day as living and active a force in common personal life with the great body of the people as it was in Europe in the middle ages,we have an illustration of how, while the limitations of the Old-World doctrine have been gradually narrowing in the United States, it still holds its ground in Mexico with proportions which practically make it the leading condition of all contracts, expressed and implied. "As an instance”(writes Mr. W. W. Nevin, Secretary of the Mexican National Construction Company (Science, Dec. 3, 1887), "of how this provision enters into express contracts, in Mexico, let us take the great railway-concessions to the leading American companies. In these concessions “fuerza mayor” generally appears in three distinct places. The obligations of the company to build within certain fixed periods are suspended in case of “fuerza

mayor." The concessions are forfeited by the companies carrying any foreign armed force or goods contraband of war, unless they can show that this was done because they were unable to resist “ fuerza mayor." Certain bounties granted to the railways cease during the time that the operation of the lines is suspended, even if the suspension should take place by reason of “fuerza mayor." In the smaller transactions of daily life this doctrine continually appears as an unwritten law, which suspends all other laws, or contracts. or obligations. Superior force, which often in Mexico means what would simply be called disaster in the United States, is to the Mexican mind a good defense against almost any obligation. For instance : should one lease a boat for a month at a fixed

sum, and unusual storms prevent using the boat for half the month, that would be ample reason why the lessee should tender only half the rent to the lessor, and he feel constrained to accept the offer.

Fuerza mayor' is translated as "superior force,' or 'uncontrollable circumstances. These circumstances are nowhere, to my knowledge, defined, but the facts of what are uncontrollable circumstances are to be decided in each case. The coercion of an armed force is 'fuerza mayor. The violence of storms is 'fuerza mayor.' The flooding of a river is 'fuerza mayor.' And, as before remarked, very generally what we are apt to con sider as disaster, in Mexico becomes “fuerza mayor,' and operates to relieve a contract of its obligations. To the American mind a contract made must be carried out, and disaster, if there is any, falls on the man who has loosely guarded his contract.” Mr. Nevin adds: “In the confluence of the American and Mexican civilizations now taking place, it becomes an interesting question how this wide difference between the usage of the two countries will adjust itself.” My own idea is that as United States capital and energy are speedily civilizing Mexico by building railroads within her territory, doubtless we may expect a very considerable attenuation of the doctrine at no distant day. But in the common law countries of England and the United States the doctrine is oftener laughed at than applied. In our very

youthful days, indeed, we may have been taught that railway accidents were sent to teach us the shortness and uncertainty of human life. But most of us have survived that view of the matter. Counsel for a railway company, who, in defending an action for damages for haystacks destroyed by fire communicated from the company's locomotive, claimed that his client had no control over the winds of heaven, speedily found himself out of court_his client should have used spark-arresters. But until a very recent date, courts of justice habitually saved time and routine labor by assuming accidents far less remote from their proximate causes than the distance between a haystack and a smokestack to be • Acts of God;' though, indeed, a very recent English court, while recognizing the principle, declared that a shipwreck, to be a veritable act of God, must have happened in extremely bad weather. And yet, possibly a well-known rule of law limiting the responsibility of the employer for mental conditions of the employé may not be entirely without bearing upon the question at hand. The common law expressly declares that there are possible conditions of an employé's mind which discharge the employer. An employé who, in ejecting trespassers, becomes vindictive, passionate, or willful, and on that account employs a surplusage of force, so acts at his own and not at his employer's peril. Might there not, for example, be a question whether an entirely unforeseen and instantaneous absence of mind on an employé's part was any more within his employer's control than a burst of passion ? Let us see. Though to-day in the United States the principle has all but disappeared from our digests, its existence is rather suggested by the somewhat startling fact, that, in all our recent chronicle of railway casualty (and I confine myself to the United States in this chapter, because our safety appliances are invariably the latest, costliest, and most elaborate in the world, our corps of watchmen and care-takers the most numerous, and our estimates of the value of human life incomparably the largest), as a rule the simplest accident is the deadliest, and the utmost perfection of life-saving appliances (whose adoption saves in nine hundred and ninety-nine cases in the thousand) may yet turn out to be

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