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he may, if he elects, obtain a trial of that question by jury; but the verdict in one case is in no way conclusive upon another case involving different shipments or between different parties. It comes, therefore, to this, that in a suit for reparation the question of what is or is not a reasonable rate must be submitted, or at least may be in all cases submitted, to the varying judgment of a jury. One rate may be determined to be reasonable in the case of one shipper and another rate in the case of another shipper, although both shipments were upon the same day and possibly in the same train. A jury in Chicago may determine that 20 cents per hundred is a reasonable charge for transporting corn from Kansas City to Chicago while a Kansas City jury may think 15 cents enough.
One cardinal purpose of the act to regulate commerce was to secure uniformity of rates, and presumably Congress intended to, and understood that it had, provided some means by which this intent could be made effectual; but the application of this remedy, which the Supreme Court says is the only one, produces, not uniformity and equality, but the direst confusion and the grossest discrimination.
This phase of the matter does not seem to have been as yet much considered. When it comes to be thoroughly understood, it may result that claims of this sort will be bought up and prosecuted upon specu. lation in much the same way that personal-damage claims are at the present time, and juries will give the like excessive verdicts that they often do in suits of that nature. In this case the person who paid the freight even would receive but a small part of the amount paid. The proceeding would perhaps act in the nature of a penalty to restrain the carrier from charging an excessive rate; but does the United States Government desire to deliberately create that condition of things, which is little better than legalized brigandage, although it finds a certain justification in the prehistoric idea that if A steals goods of B he must not complain at receiving the same treatment himself from C?
The law now declares that we can regard, in determining whether a rate is reasonable, only the past. We are inclined to think it would be much more in harmony with the intent of the act and much more to the interest both of the public and the carrier if our inquiries into that question looked mostly to the future. We think that a regularly published rate should be conclusively presumed to be a reasonable one until attacked by formal complaint to this Commission. The filing of such a complaint notifies the carrier that the rate is questioned, and if it is finally determined to be an excessive one such carrier ought to be required to refund whatever has been received under it in excess of the reasonable rate after such notice. All claim for reparation should, however, be made in the suit in which the rate is finally adjudicated. Whoever has paid the excess could apply to the Commission and obtain an order for reparation, as a matter of course, upon merely making proof of the fact of the shipment, about which there is ordinarily no question.
The order would in all cases be for the difference between the rate paid and the rate fixed, and the carrier would, as a practical matter, in all cases pay this amount rather than take the question before a jury. This procedure would be consistent. It corrects the rate for the future, which is the only real protection to those actually injured. As to the past, it furnishes a measure of recovery which is at least uniform between different shippers.
It may very likely be inquired whether this whole question of reasonable rates is one of much practical importance. Are not rates already excessively low, and is there complaint that rates are too high?
Our answer is that the power to reduce a rate has been in the past, while we were supposed to possess it, and must be in the future, one of the most, if not the most, important functions of this Commission. Many rates in this country are undoubtedly too low. Many rates are too high. Of the formal orders made by the Commission up to the present time, more than one-third have directed a reduction of the rate. Looking at the matter from its money side, these orders have involved many times more in amount than all our other orders put together. We have now before us thirty-eight cases in which the main question is one of a reduction of the freight rate. Some of these are the following:
Board of Railroad Commissioners of Kansas v. Atchison, Topeka and Santa Fe Railroad Company and others, involving rates on grain from Kansas points to southern ports.
Dallas Freight Bureau v. Texas and Pacific Railway Company and others. Alleged excessive rates on cotton from Texas points to New Orleans.
Re Alleged Unlawful Charges for Transportation of Vegetables from Shipping Points in Florida to New York and other Northeastern Cities. The title indicates the question involved.
Grain Slippers of Northwest Iowa v. Illinois Central Railroad Company and others. Alleged excessive rates on grain from points in western Iowa.
It will be seen that these cases affect the most important agricultural interests in widely separated sections of the country. The amounts involved in the reductions asked for are enormous.
We think, too, that, apart from the mere money value of the questions involved, there ought to be some tribunal which can decide these questions. It may be true that the people who complain of excessive freight rates are more unreasonable in the making of these complaints than the carriers are in the making of their rates. That possibly is so. Bụt it arises from the lack in these people of a knowledge of the actual situation. They are perfectly honest in believing that a grievance exists. In many cases an actual grievance does exist. We think that this Commission, unless some better way can be
devised, should have power to entertain and determine this question for the future, as it has heretofore undertaken to do.
NO POWER TO CORRECT UNDUE PREFERENCES.
What has been said hitherto with reference to the importance of being empowered to fix a rate for the future applies only to the first section. The same question is incidentally involved as to the third section. This last section provides that carriers shall not discriminate between individuals, commodities, or localities, and prohibits all such discrimination.
Of course, there may be discriminations which have nothing to do with the rate. One shipper may receive better facilities than another, or he may receive an additional service for the same rate. The greater part of those discriminations, however, which we are called upon to correct, and, indeed, most of the discriminations which are made, of necessity arise through the application of the freight rate. The complaint in these cases is, not that the rate is excessive, but that it is
relatively wrong. The rate to one locality or upon a given commodity · is alleged to be higher than it ought to be with reference to some other locality or some other commodity.
Discriminations of this sort do not necessarily affect either the producer or consumer. They more often touch the trader. If the total rate is a reasonable one, it makes no difference to the Iowa farmer or the New England laborer whether the wheat of the first is ground into flour for the second at Minneapolis or at Milwaukee, but it does make a vital difference to the milling interests at these two places whether the rate is properly adjusted. Indeed, a very slight difference in the rate as against either place would mean that practically all the wheat would be ground eventually at the other place.
From the very nature of the interests affected by discriminations of this kind, it follows that there will usually be no lack of a complainant to prosecute. Large money interests are, as a rule, directly involved, and that means that there will be plenty of ability to support the contention of either side. It is equally obvious that the only way in which tlie discrimination can be corrected is by a change in the rate, and that, except in very unusual instances, there can be nothing in the way of reparation for the wrong done in the past. Take the pending case of Milwaukee and Minneapolis, in which the former is now complaining that the rates on wheat from the wheat-producing section to these two cities is improperly adjusted. The complaint is, not that the rate to Milwaukee is too high necessarily, but that the rate to Minneapolis is too low in proportion to that to Milwaukee. Suppose this turns out to be the fact. What money damages could be given! The lines to Milwaukee have not carried the traffic for the reason that their rates were too high. Therefore there is nothing for them to refund. The lines to Minneapolis have carried the traffic, but they have done so at
too low a rate, and clearly they can not be asked to refund. All that can be done is to correct this discrimination for the future; and the same would be true if the discrimination were not between localities, but between commodities.
We have always assumed the right to determine a differential for the future. We had also assumed the right to determine a rate for the future. The Supreme Court says that the latter power does not exist, because the Commission has not been invested with authority to look into the future and prejudge future conditions. If it has no power to determine what will be a just rate in the future, upon the same reasoning it would have no power to determine what would be a just differential for the future. We do not say that this is a correct application of that decision. But we suggest that if any legislation is to be had upon this subject, our power in this particular should be clearly defined.
There is, moreover, one class of discriminations which we have never possessed the power to effectually correct, even while we assumed the right to fix the maximum rate. We refer to that class of cases where the differential in question is to be maintained by independent lines, as well as by a common line. What is meant will be better understood by referring to an actual case in which the difficulty experienced arose, viz, the Eau Claire Board of Trade v. The Chicago, Milwaukee and St. Paul Railway Company and others (5 I. C. C., 264).
The complaint in that case was that the lumber rates from Eau Claire, Wis., were too high to common markets as compared with those from Winona and La Crosse. The case was elaborately tried, and the Commission decided that the complaint was well taken, that the then existing differential was too high, and that a prescribed differential should not be exceeded. The justice of this decision was pretty generally conceded by the carriers themselves.
As soon as the order was promulgated the Chicago, Milwaukee and St. Paul Railway Company, which extended from both Eau Claire and Winona and La Crosse to these common markets, reduced the rate from Eau Claire so as to correspond with the order of the Commission. Thereupon the lines leading from Winona and La Crosse, but not touching Eau Claire, immediately reduced their rates by an equal amount, so as to maintain the same differential between Eau Claire and those cities, and they gave out that any further reduction of rate upon the part of the Milwaukee road from Eau Claire would be followed by a corresponding reduction in rates by them from Winona and La Crosse. Apparently the only thing that the Milwaukee road could do was either to engage in a rate war, which would unsettle lumber rates in all parts of the country, or decline to obey the order of the Commission. Since it had nothing to lose by the latter course, it very wisely, from its standpoint, adopted that. It has several times since endeavored to secure the consent of the other carriers to the putting in of this rate, but hitherto has failed to do so. Eau Claire is still suffering from the effects of
this discrimination, although the third section of the act to regulate commerce expressly declares that such discrimination shall not exist.
This instance is not by any means an isolated one. The most bitterly contested cases now pending before us are of exactly that character, and precisely the same difficulty will be met with in attempting to enforce any order which the Commission may make. It is possible that some method may be devised under the law as it is to compel a compliance with such an order. We merely call attention to the fact that hitherto no means have been found, and suggest that the remedy by legislative enactment is simple.
The power to fix a maximum rate, or, in other words, the power to reduce a rate, is of no avail in this case, since a reduction of the rate from Eau Claire is met by a corresponding reduction of the rate from Winona. What is necessary here is the right to fix a minimuin rate, to say that the carriers shall not charge below a certain rate from Winona and La Crosse.
It may well be inquired whether a carrier should be prohibited from making as low a rate as it chooses. The reason for enjoining the exaction of an excessive rate is obvious, since the public is directly injured by that rate; but in the case of a rate too low, it would appear that the carrier alone is injured, and should not a railroad company be allowed to manage itself so long as it does not violate the rights of the public? The answer is that it undoubtedly should. The very reason why re suggest that the Commission be given this power to fix a minimum rate in certain cases is to preserve the rights of the public by preventing an act of unjust discrimination, which the statute in terms forbids, and we suggest that this power be granted only to that extent.
Practically this power would never be exercised. The Commission had frequently made orders of this same kind previous to the Eau Claire case, and these orders had been uniformly obeyed, evidently under the impression that if not obeyed they could be enforced. If it were made certain that they could be enforced, there would be no more occasion to resort to that power in the future than there has been in the past. The order of the Commission would simply prescribe the differential, and the carriers would then determine the rate.
It may be inquired here, as with reference to the first section, Of how much importance is it that the Commission should have the power to correct alleged discriminations? In reply to that it may be suggested that the first five sections prescribe in a general way the restrictions which are put upon carriers by the statute.
Section 5 prohibits pooling. We have never been called upon to make an order under that section.
Section 2 provides that all persons shall enjoy the same rate, and prohibits the giving of rebates or concessions to particular shippers. The Commission seldom has occasion to consider a violation of this section. A departure from it is made a criminal offense, punishable with severe