POLITICAL SCIENCE QUARTERLY. THE PROGRESS OF FEDERAL RAILWAY THE HE Interstate Commerce Act, originally regarded even by its friends as a legislative experiment, has remained for nine years without any fundamental or very material modification. This period is unquestionably long enough to permit the formation of an accurate empirical judgment regarding the efficiency of the law and to justify the entire substitution of the practical results of experience for merely theoretical discussion of its merits. Before entering upon such a discussion it is indispensable to ascertain and precisely define the evils that the law was intended to correct and the remedies it provided. The first three sections, which have been considered merely declaratory of well-recognized principles of the common law, prohibit not only excessive charges for railway service, but also charges so adjusted with reference to other charges as to subject any person, locality or class of traffic to unreasonable or unjust prejudice or disadvantage; while the fourth section adds a rule of evidence in connection with complaints arising under the third, by imposing upon the carrier making a greater charge for a shorter intermediate carriage of persons or property than for a longer one in the same direction, the burden of sustaining the justice of the discrimination by proving the existence of circumstances and conditions substantially dissimilar. The infer ence is reasonable and inevitable that the evils which attracted the attention of Congress and against which it intended to legislate were those of excessive and relatively unreasonable or unjustly discriminating charges. A careful analysis of the act shows that Congress attempted to provide three remedies, each of which separately and independently had been advocated as a satisfactory solution of the problem of railway rates by persons holding the most divergent views. These remedies were: (a) a summary process for hearing and adjudicating complaints against railways and for enforcing without delay the measures of relief found necessary; (b) the perpetuation of competition; and (c) publicity for the details of railway management, operation and finances. The failure of the first remedy was immediate and complete. The United States courts, to which appeal must be made for decrees enforcing the orders of the Interstate Commerce Commission, promptly declared that the law gave no finality to the acts or conclusions of that body; and in proceedings upon applications by the commission for the enforcement of its orders, defendant railways were permitted to introduce entirely new evidence and to adopt new lines of defense. Obviously this construction of the statute deprives procedure before the commission of any efficacy in simplifying or expediting measures for relief from railway oppression, except in those cases in which the railways see fit to comply voluntarily with its orders. In other words, the investigation of complaints 1 The following from the latest report of the Interstate Commerce Commission is of interest in this connection: "In the case of The James & Mayer Buggy Company vs. The Cincinnati, New Orleans and Texas Pacific Railway Company et al. (the Social Circle case), which involves the most vital principles of the act, the commission rendered its decision in 1891, and filed a petition for the enforcement of its order in the United States circuit court for the northern district of Georgia on the 21st of October, 1891. Four years have since elapsed, and this case is pending in the Supreme Court. Numerous cases in the lower courts wait upon the decision of this case, and are continued from time to time to avoid the expense of litigation. In the case of Coxe Bros. & Co. vs. The Lehigh Valley Railroad Company, the commission, after a thorough and painstaking investigation, decided that there should be a substantial reduction in the transportation charges on coal from the anthracite region of Pennsylvania to tide-water at New York. On May 21, 1891, the commission filed a petition in the United States circuit court for the which is provided for by the law, together with the reports, opinions and orders based thereon, have no practical effect other than to give publicity to whatever ground for complaint may be found to exist; and the orders of the commission are only complied with in cases of little importance, or when based upon facts and reasoning so clear, unmistakable and convincing that the railways are unwilling to awaken the public sentiment of condemnation that they feel will be certain to follow noncompliance. The fifth section of the act attempts to perpetuate competition by making it illegal for any carrier operating over a rail or rail-and-water route to enter into any combination or agreement with other carriers for the pooling of freights or the division of all or any portion of the gross or net earnings from competitive traffic. As no one has ever contended that the suppression of railway competition, which is the sole end and purpose of socalled pooling contracts, tends to produce unjust discriminations between either persons, places or classes of traffic, it may be taken for granted that this section was added because it was believed to be a safeguard against extortionate charges. Though the insertion of this provision is now generally considered to have been a serious mistake, and its operation an almost insurmountable obstacle to the satisfactory enforcement of the fundamental principles of the law, it is not denied that it has been observed with practical uniformity. The occasional evasions which have occurred have required very complicated machinery and have been wholly dependent for their success upon the good faith of the parties; and the service to selfinterest from secret violations has been so evident that the periods of their continuance have been too short to have any material effect upon revenues or upon the general condition of railway business. In the third remedy Congress evidently intended to provide for the broadest and most comprehensive exercise of the visi eastern district of Pennsylvania to enforce its order of reduction, and after more than four years the case stands on the docket of the said circuit court untried.”— Ninth Annual Report, I. C. C. p. 10. torial function of government. It authorized and required the Interstate Commerce Commission to inquire, generally, into the business of the carriers subject to its jurisdiction, and to keep itself continually informed as to the manner and methods of conducting their business, and it provided for full investigations and reports concerning all complaints against such carriers. The provision for annual statistical reports, though unfortunately limited by interpretation to a much more restricted class of corporations than its terms would seem to justify, has proved one of the most useful requirements of the statute, and has resulted in the collection of a body of numerical facts relating to the business of railway transportation in the United States that is more accurately and completely descriptive of that business than the statistics that are available in any other country or for any other important industry at home or abroad. Other provisions, intended to assist in securing the same result, authorize the commission to prescribe a uniform system of accounts; require all carriers subject to the act to print, file and conspicuously post copies of their rate schedules, and to file copies of all agreements with other common carriers concerning traffic subject to the act; and give the commission power to issue subpoenas and subpoenas duces tecum. Through these requirements the public and its legislative agents have had opportunity to become acquainted with those essentials of railway management that most materially affect the relations. between the carrying corporations and their patrons. These observations indicate the points that an investigation of the results of the Interstate Commerce Law should attempt to elucidate. Non-essentials should not be allowed to lead into relatively unprofitable though alluring by-paths. It is more important to discover whether the evils that the statute was intended to correct still continue - whether there are now frequent instances of excessive charges, or whether particular persons, places or kinds of property now suffer from unjustly discriminating charges, than whether the particular remedies selected have been uniformly observed - whether there have been occasional evasions of the anti-pooling section or instances of higher charges for shorter than for longer carriage of persons or property such as are forbidden in the fourth section. What is an excessive charge for railway service? What is the criterion by which a rate can be measured, and the question whether it is in itself just and reasonable correctly answered? It cannot be any definite sum per passenger or per ton of freight per mile; for any standard of this kind either would be so low as almost immediately to reduce all companies to bankruptcy, if applied to all traffic, or would be so high as inevitably and at once to prevent the movement of many commodities of great weight in proportion to their value, the trade in which is now socially necessary and profitable. It cannot be what the service is worth, or, differently stated, the money equivalent of the utility added to the commodity by its transportation from a region of abundance to one of scarcity; because this utility is in itself mainly dependent upon the cost of transportation between the localities, and consequently to adopt it as a standard would be to travel in a vicious and unprofitable circle. By some it is most plausibly contended that cost of service, since it may not reasonably be exceeded by more than a limited percentage in the price exacted for the service, can, with the addition of a reasonable allowance for return to capital, be made to serve as a standard by which rates may be judged. It might be difficult to combat this contention, were it possible even approximately to determine the cost of any particular service. But this is impossible; for most of the items that make up the total cost of railway service are incurred on the joint account of many shipments, and not in order especially to facilitate the movement of any particular shipment or even any particular portion of the aggregate traffic. The cost of moving a bushel of wheat from Minneapolis to New York via Chicago includes, among other things, a portion of the outlay for maintaining yards and terminals at Minneapolis, Chicago and Jersey City; for wages of trackmen along the entire route; for telegraphs and signaling apparatus; for keeping bridges, culverts and trestles in repair; for the fuel and oil consumed by the locomotives employed during the run; for clerical work in the |