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6th. Or to subject any particular description of traffic to such prejudice or disadvantage.

This section involves two distinct issues of fact, viz.: first, as to what is the making or giving of an undue or unreasonable preference or advantage; or, second, what is the subjecting of any person, etc., to any undue or unreasonable prejudice or disadvantage in any respect what


These questions of fact must be determined by the United States courts, or the Inter-State Commerce Commission, as the case may be.

Carriers Dealing with Each Other.

The second paragraph of this third section enjoins upon each common carrier three distinct duties in its dealings with other carriers, viz. :

1st. To afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines.

2d. Afford such facilities for the receiving, forwarding, and delivering of passengers and property, to and from their several lines, and those connecting therewith; and

3d. Shall not discriminate in their rates and charges between such connecting lines.


The performance of these duties are all questions of fact, to be determined by the courts of the United States, or the Inter-State Commerce Commission, as in the cases arising under the preceding paragraph of the same section. They all involve important and delicate issues of fact.

Abrogation of Franchises and Contracts.

Of course, if this legislation is sustained, it results in practically abrogating a great many of the important privileges and franchises now enjoyed by different common carriers, either existing by virtue of grants to them from different States; or by virtue of private contracts entered into between such carriers and private persons, or by carriers with each other.

I. All grants of franchises by States to common carriers, subject to the provisions of this Act, authorizing them to levy or collect a certain rate for mileage upon passengers, or a certain rate upon freight, or grant of any other description of special right, prerogative or franchise, inconsistent with the Inter-State Commerce Act, are vitiated and rendered nugatory; because, under the second subdivision of Article VI. of the Constitution of the United States, the

laws of the United States shall be the supreme law of the land.

II. So all private contracts, between carriers and individuals, relating to the transportation of persons or property, which are inconsistent with the terms of this Act, are likewise vitiated and rendered nugatory.

III. And all traffic, freight, or other agreements between common carriers subject to this law, relating to the transportation of passengers or freight, are likewise vitiated.

IV. The question will accordingly occur in this connection, whether the Act in this respect. is not contrary to the Fifth Amendment to the Constitution of the United States, which provides that no person shall be deprived of his property without due process of law, "nor shall private property be taken for public use without just compensation."

Long- and Short-"Haul" Provision.

Third: The fourth section of the Act deals with the "short-haul" subject, and provides that it shall be unlawful for any common carrier subject to the provisions of this Act to charge or receive any greater compensation in the aggregate for the transportation of passengers or of



like kind of property, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier within the terms of this Act to charge and receive as great compensation for a shorter as for a longer distance: provided, however, that upon application to the Commission appointed under the provisions of this Act, such common carrier may, in special cases, after investigation by the Commission, be authorized to charge LESS for a longer than for shorter distances for the transportation of passengers or property; and the Commission may from time to time prescribe the extent to which such designated common carrier may be relieved from the operation of this section of the Act. (Sec. 4.)

I. This section creates a very unusual precedent in American legislation, for the principle that underlies the making of all laws, especially of a penal character, viz., that they are fixed and immutable rules for the government of the subjects of a country, is here departed from, and the law is relaxed at the will of the Commission named in the Act.

Until the Commission acts, however, it is a misdemeanor for a common carrier to charge a greater compensation for a shorter than for a longer distance. (See Sec. 10.)

The Commission is clothed with the extraordinary power of rendering nugatory this penal act, by prescribing the extent to which a common carrier may be relieved from its operation. Whether the Congress of the United States has the right to delegate its powers under the Constitution, in the respect here adverted to-to suspend the operation of a law is one of the questions which the courts must decide.

It is very evident that Congress was firmly convinced that, in many instances, the common carrier was, and would be, justified in charging a greater or as great a compensation for a shorter than for a longer haul, or the unusual power of rendering nugatory the effects and penalties of the Act would not have been conferred upon this quasi-judicial body—the InterState Commerce Commission.

II. The exact meaning and effect of this fourth section were conceded to be ambiguous. and doubtful in the debates in Congress when this law was discussed. (See debates of Con

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