dollar is worth considerably more to it now than before these wreckers sacked its treasury. But while there is no law to meet those who have taken its substance, there is a sleepless statute watching the wrecked railroad to discover if, perchance-in wicked zeal to earn a dollar here or a sixpence there-it takes what business it can get, without sufficient discretion lest now and then it haul at a greater rate for an annoying fractional than a convenient through haul.

As already demonstrated, no railway company or individualother things being equal-performs the greater service for the smaller wages. But railways, as well as individuals, must live, and, somehow or other, pay their bills. The railway company is always more or less at the mercy of the stock jobbers and the wreckers, and no national law steps in to protect it. They must take their chances as to these anyhow. But once let the company default in payment of its fixed charges, and there are no chances to take; it is bound hand and foot, and lies at the mercy of the operators, who can then pick its bones at their leisure. And yet, it seems, the situation did not call for enough vigilance, and so the interstate commerce law steps in and says, "Shut your eyes to what your competitors by water are doing, or to the laws of supply and demand. You are not supposed to know that wheat is a thousand miles from its market and beef only twenty miles, or vice versa. You are to be indifferent to the fact that dividends must be paid or you may be wrecked, and interest met or you go into the hands of a receiver. But strain your energies to filing of copies of your tariffs properly, and see to it that you never charge more for the short than the long haul under what may or may not hereafter happen to appear to the casual (or, say, to the most attentive and expert) beholder to be "substantially similar conditions."

Judge Deady has recently, it seems, held that a corporation chartered by the State-even if it be a railway company-has yet a right to its corporate life. Unless the commission, therefore, sees fit to rule differently, or until Judge Deady is overruled, such is the law. And if the words "under substantially similar circum

stances and conditions" in section 4 of the act are a substantial part of the law,-what becomes of the Act of Interstate Commerce? What is or was the necessity for any Act at all? It was hardly worth while for Congress to enact that railway companies should be guided by circumstances; and should consider the conditions under which they operated in making their rates.

DEADY, J. "It appears from the petition filed by the receiver that the Oregon and California Road will soon be connected with the California and Oregon Road, when the two will form a through line between Portland and San Francisco: that between these points there is also water communication by steamers and sail vessels that carry passengers and freight at less than the average cost of transportation by rail between the said places and all intervening stations; that the Oregon Pacific Railway, with the aid of steamboats on the Willamette River, now receives a portion of the freight which would otherwise be carried on the Oregon and California Road; that the Canadian Pacific Road connects with a line of steamers running between the western terminus and San Francisco, and that to compete with such all water and rail and water transportation it is necessary to make the corresponding rates on the Oregon and California Road.

"The receiver asks, first, whether under the Interstate Commerce Act such rates can be made for through traffic as will enable the Oregon and California Road to compete for the same at points where competition by water or rail exists, although the rates for the long haul between Portland and San Francisco or intervening points may be less than those for a shorter haul in the same direction between said places or such points, and second, whether in conjunction with the Northern Pacific Railroad or other transportation lines the Oregon and California Road may meet the competition of the transcontinental business orginating to the north and east of Portland, although its share of the through rates may be less than the local charges over the road, or its share of the through rates on competitive business between Portland and San Francisco"

Judge Deady refers at some length to the decision he made two years before in ex parte Koehler, 23 Fed. Rep., 529, in which

he authorized the Receiver of the Oregon and California Road to make a lower rate for a competitive long haul than for a short haul, notwithstanding the act of the Oregon Legislature of 1885, known as the Hoult Law, which prohibited a corporation from charging a greater rate for carrying similar property for a short haul than for a long one in the same direction. In this decision for the first time in the United States, the principle was laid down that a railway corporation has a right to live." ***“This opinion has been before the world for more than two years, and on account of the importance of the subject, has attracted some attention, but so far as I am aware it has received no unfavorable criticism, and time and reflection have finally satisfied me of the ruling. The Interstate Commission is intended, among other things, to prevent discrimination between long and short hauls, except where they are made under substantially dissimilar circumstances and conditions. In my judgment Congress in limiting the prohibition contained in section 4 has recognized the rule laid down in ex parte Koehler as a proper one. Freight carried to or from a competitive point is always carried under substantially dissimilar circumstances and conditions from that carried to or from non-competitive points. In the latter case the railway makes its own rates. In the former case the circumstances are altogether different. The power of a corporation to make rates is limited by the necessities of the situation. Competition controls the charge. It must take what it can get, or, as was said in ex parte Koehler, abandon the field and let its trade go to rust. Competition may not be the only circumstance that makes the condition under which longer and short hauls are performed substantially dissimilar, but it certainly is the most obvious and most effective one, and must have been in contemplation of Congress in passing the act. The court refers to the case of the Union Pacific Railway, v. the United States (10 U. S. 662, and 117 U. S. 355), wherein the company charged the Government local rates for transporting United States troops from Council Bluffs to Ogden, such rates being higher than the Union Pacific's share for a through passenger to San Francisco. The question was decided in favor of the Union Pacific by the Supreme Court, which held (117 U, S.

355) 'the services rendered by a railway company in transporting local passengers from one point on its line to another is not identical with the service rendered in transporting a through passenger over the same rails.' The decisions of the Supreme Court in these cases were doubtless present in the mind of Congress at the passage of the Interstate Commerce Act, but under the Interstate Act, mere difference in distance is not such a circumstance as will justify a greater or even an equal charge for a short haul than a long one, yet Congress must have contemplated that there might be such a difference in the circumstances attending a long and a short haul as would make it necessary for railway corporations in the acquisition and retention of the business for which their roads are constructed and operated to charge less for a long haul than for a short one. Congress never intended to make of this act a procrustean bed in which the conduct of the business of roads engaged in interstate commerce shall be made to conform to one arbitrary rule without reference to probable and even unavoidable differences in the conditions and circumstances under which it must be transacted." But, eliminating this, and the provisions which establish at Washington a Depository or Congressional Library of Railway Tariffs and Schedules for Immemorial Preservation-and what is left? Certainly nothing except the penal clauses to which allusion has just been made.

The bottom trouble is that the people of this great nation—the masses, the voters-have neither leisure nor inclination to study the workings of the railway industry, an industry that operates 139,986 miles of roadway with $8,000,000,000 of capital, and gives direct employment to two or three millions of the population and indirectly supports some seven millions more (though that there is a single individual of our sixty-five or seventy millions of population who is entirely independent of any railway service may be reasonably doubted.) What they do see is that vast private fortunes have been accumulated somehow in connection with railways. But nothing is further from the thoughts of these masses -these voters-than to pause to inquire whether the private fortune has been produced by the operation of the railways, or by the

manipulation of their securities, by the earnings or by the bankruptcies of the companies themselves. The masses-the voterssay, therefore, "We must have a law to put an end to this overaggregation of wealth in the hands of a few; it is dangerous to society, to the nation." They have the interstate commerce law. They think it suits them. Perhaps it does. But while it will have no effect on the accumulation of private fortunes, it certainly will not operate to relieve the railway companies from the chances of bankruptcy or the railway wrecker who comes after. Possibly it would be premature to say exactly what the interstate law can or cannot do. That its only effect so far has been to increase rates to the shipper, I suppose is conceded. But the raising of a few rates is a most trifling matter compared with the question whether the law itself is in accord with our national policy. Never mind what private industry it embarrasses if it only conserves a public interest. If it can be shown that the inter state commerce law is patriotic and constitutional, its mere effect upon any matter of private concern sinks at once into the perspective. I am sure that the law the people wanted was one not framed to cripple any given industry, but rather, if possible, to protect all industries. And that in their desire to protect all alike, the fact that railway companies, like other artificial persons, were yet persons in law and entitled to enjoy every privilege given them by the State, was neither intended to be overlooked or denied. I admit, of course, that the common law ought to protect the railway companies from the railway wrecker so that no statute should be required. But so, also, ought the common law to protect the shipper by providing (and it so happens that it does so provide) that every railway should make its rates reasonable, so that no statute should be required. If the common law, however, has failed in either case, let us examine if it has not likewise failed in both. But the fact is, that while the common law has neither protected the railways from the wreckers nor the people from exorbitant rates, the pool has and did both. But, no sooner had it done so, than the interstate commerce law stepped in and abolished the pool!

It is not the purpose of this monograph to attempt to meet all