In many of these cases the courts distinctly expressed the view that there was no injustice in the rate relations which were made the subject of complaint, and there can be no controversy over the suggestion that their enforcement would have brought injustice. There is probably no one of these cases in which the enforcement of the Commission's order would, directly, have modified the rates actually paid. The carriers affected might have been compelled to withdraw their competition for the long-haul traffic, but it is not at all likely that in any case they could have afforded to reduce their intermediate rates to the level fixed by competition at the terminals. In a few more recent cases the Commission has recognized the illegality of its former efforts and has given what it has regarded as sufficient consideration to competition of the character formerly declared to be without effect as a defense. In these cases, however, the Commission appears to have fallen into the error of imagining that it was the purpose of the law to deprive certain communities of natural advantages of location which enable them to enjoy the service of great and competing routes of transportation, by land or by water or by both.

The Griffin Case (see p. 118) is typical. The court said that the enforcement of the Commission's order would, as its first effect, "immediately disorganize and disarrange the entire commerce of which Macon is the receiving and distributing point;" and that, without material benefit to the producers and consumers at Griffin, "the commerce of Macon would be destroyed in exact proportion with its inability to meet the prices of its competitors."

ATTEMPTS AT RATE MAKING.

The last class of cases which need be mentioned is that in which the Commission has attempted to control rates either absolutely or relatively. The cases of this sort which have gone to the courts have sometimes been decided against the Commission, because of its attempts to exercise legislative functions that have never been delegated to it; but a study of the decisions themselves affords ample warrant for the statement that the disapproval of the Commission's action has usually extended to its conclusions upon the facts. Thus, in the "Coxe" Case (see p. 77) the court reported that the basis of the Commission's determination as to what constituted a reasonable rate under the circumstances was an unwarrantable and unreliable" estimate which the Commission had based upon an erroneous principle." In the "Social Circle" Case (see p. 79) the court declared that the Commission had omitted to consider a fact of controlling importance, and in the "Cattle Raisers'" Case (see p. 123) the Supreme Court distinctly said that in its opinion "the order of the Commission was not sustained by the facts upon which it was predicated."

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POWERS OF THE COMMISSION.

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It is frequently urged that when the courts have differed with the Commission in their conclusions of fact it has been as a consequence of the right of the courts to make their investigations as broad as seems to them desirable. They are not bound by the testimony heard by the Commission. It has been common for new testimony to be

introduced in the circuit courts, and some of the decisions show that this testimony has been of controlling force. The investigating powers of the Commission, however, are most ample. It is not strictly bound by the ordinary rules of evidence, and the courts have held that in deciding whether their aid shall be available, as provided in the law, for compelling the production of testimony, either oral or documentary, before the Commission, they must be very liberal in determining what inquiries are material and relevant. In other words, if in certain cases the record made before the Commission has not been complete enough to afford the basis of a satisfactory determination of the matters involved by the courts, it has been because the Commission itself did not utilize the broad powers of investigation conferred upon it by Congress. It has always had the power to extend its investigations in any case to the most remotely relevant or material fact. If it has failed to appreciate the importance of evidential facts which have been brought out in subsequent proceedings before the courts, it is certainly creditable to the wisdom of Congress that the law has provided for supplementing its inquiries.

The Commission is not a powerless or impotent body. The interpretation of the present statute by the courts is now almost, if not quite, complete. If the Commission chooses frankly to accept the definitions of its authority laid down by the courts, and to proceed in accordance with them, there can be no genuine case of injustice in the relations between railway carriers and their patrons, in which some relief can not be secured under the statute as it stands. The records show that numerous modifications in rate schedules have been secured through the operation of the law and the intervention of the Commission. It is only in less than 2 per cent of the cases of alleged injustice which have been brought to the attention of the Commission that the record discloses that it has not succeeded in doing that which it has attempted. A part of this 2 per cent of all the cases has gone to the courts, and in all but three instances the courts have, for one reason or another, concluded that the Commission has acted illegally.

The brief epitome of the cases which has been given above is supplemented by the memorandum on the following pages, in which each of them is separately considered and analyzed. There are very few in which the extracts from the decisions of the courts that are given do not show that, to the judicial view, the action of the Commission appeared to be unwise as well as unlawful.

MEMORANDUM IN RE REFUSALS OF FEDERAL COURTS TO ENFORCE THE ORDERS OF THE INTERSTATE COMMERCE COMMISSION.

KENTUCKY AND INDIANA BRIDGE COMPANY CASE.«

"The law never contemplated such results."-Decision of the circuit court in this case.

In this case the Commission entered an order in favor of the complainant which was not obeyed by the defendant and proceedings were instituted in the circuit court by the complainant before the Commission for the enforcement of the latter's order. The circuit court dismissed the complaint and no appeal was taken.

This is a leading case in the interpretation of the interstate-commerce law, and has apparently settled for all time many important points as to the jurisdiction and powers conferred upon the Commission or which can constitutionally be conferred upon a body so constituted. These matters, however, are not germane to the present inquiry, which is whether, on the whole, the result of the litigation was in accordance with substantial justice.

On June 5, 1872, the Louisville and Nashville, the Jeffersonville, Madison and Indianapolis, and the Ohio and Mississippi railway companies entered into a contract with the Louisville Bridge Company, a corporation with which the complainant in this case afterwards became a competitor, the contract stipulating, among other things, that the Ohio and Mississippi Railway would forward over the bridge of the Louisville Bridge Company" all the freight, passengers, mails, express matter, and other goods carried on and over their roads, to and from Louisville and to and from points which require their passage over the Ohio River at or near Louisville." On September 26, 1886, the Ohio and Mississippi entered into a contract with the complainant, the Kentucky and Indiana Bridge Company, which contemplated the abandonment of the preexisting contract of the former with the Louisville Bridge Company and the transfer of its business across the Ohio River near Louisville to the complainant. The continued use of the bridge of the Louisville Bridge Company by the Ohio and Mississippi, in accordance with its former contract, was decidedly to the advantage of the defendant.

The Kentucky and Indiana Bridge Company v. The Louisville and Nashville Railroad Company, Inter. Com. Comm. (2 I. C. C. Rep., 162), decided August 2, 1888. The Kentucky and Indiana Bridge Company v. The Louisville and Nashville Railroad Company, circuit court for the district of Kentucky (37 Fed. Rep., 567), decided January 7, 1889.

In order to compel such use the defendant refused to interchange traffic with the complainant at Seventh street and Magnolia avenue in Louisville, where their lines were physically connected, and demanded that such traffic be delivered at one or the other of its four freight yards in the city of Louisville. The complaint was brought by the Kentucky and Indiana Bridge Company for the purpose of compelling interchange at Seventh street and Magnolia avenue and was really intended to compel the defendant to permit the Ohio and Mississippi, which was not a party to the action, to do that which was in violation of its contract with the defendant. The order of the Commission would have produced this result, and the refusal of the circuit court to enforce that order was therefore a refusal to use the process of that court to aid in the violation of a contract. The following is from the decision of Judge Jackson:

While the Ohio and Mississippi Railway Company is not an actual party to this controversy, which this court is required" to hear and determine as a court of equity," it is, however, perfectly manifest that this proceeding, as well as that before the Commission, is intended for the private benefit not merely of petitioner, but of the Ohio and Mississippi Railway Company, and its object is to relieve the latter from the contract of June 5, 1872, in order that petitioner may secure from it the rental stipulated to be paid for the use of its bridge, the Ohio and Mississippi Railway Company not being bound by the contract of September 29, 1886, to pay petitioner "any tolls" thereunder until its liability for tolls, charges, or rentals under the contract of June 5, 1872, with the Louisville Bridge Company is removed. Now, the contract of June 5, 1872. which the Ohio and Mississippi Railway Company entered into with the Louisville Bridge Company and other railroad companies, including respondent, and in the maintenance and enforcement of which respondent has a direct business and pecuniary interest, was neither abrogated nor annulled by the act to regulate commerce. The provisions of that contract are not in conflict, but in strict conformity, with both the letter and spirit of the act of Congress.

Under the terms and operation of that contract, which is still in full force, as against the Ohio and Mississippi Railway Company and all parties thereto. the Ohio and Mississippi Railway Company had and enjoyed all reasonable, proper, and equal facilities with any and every other railroad company entering Louisville from the north side of the Ohio River and interchanging traffic with respondent. It voluntarily abandoned these facilities in 1888, changed its business to the petitioner's bridge, not in the interest of the public or of the interstate commerce it handled, but for its private benefit and advantage; and petitioner now seeks to secure for it, as well as for itself, the same terms and facilities which existed under the contract of June 5, 1872, and without subjecting either to the obligation of compensating respondent or sharing in the expense of an interchange, as provided in the contracts of May 22, 1873, and May 16, 1888. The act to regulate commerce, no more than the act of June 15, 1866 (sec. 5258, Rev. Stat. U. S.), was never intended to invade the domain of private contracts between common carriers, which were valid when made, and are not in conflict with the provisions of the law.

In Railroad Co. v. Richmond, 19 Wall., 590, the Supreme Court says of such contracts "that the observance of good faith between parties and the upholding of private contracts and enforcing their obligations are matters of higher moment and importance to the public welfare and more far reaching in their consequences than the public policy sought to be established in the facilitation of commercial intercourse among the States, which the act of June 15, 1866. aimed to promote." Under such circumstances as surround the parties, neither the Ohio and Mississippi Railway Company nor the petitioner, who, for private advantage, is cooperating with the Ohio and Mississippi Railway Company in trying to escape from the obligations of said contract of June 5, 1872, are in position to commend themselves to the favorable consideration of a court of equity, and no strained construction of the law should be made in order to afford them or either of them the relief they seek at the hands of the court.

On the question of fact as to whether the point of interchange demanded by the complainant was a suitable one the Commission and the court differed widely. The Commission said:

We hold that the point of connection at Seventh street and Magnolia avenue, in Louisville, is a convenient and suitable point for making exchange of traffic between complainant and any carrier that may make use of its tracks and the defendant.

The court, on the same point, said:

The fourth point presented in this case, which is whether petitioner's connection with respondent's road at Seventh street and Magnolia avenue, in Louisville, is a proper, suitable, and convenient place for the interchange of traffic between them and the railroads using petitioner's track, and whether respondent's refusal to interchange at said point is an unreasonable and unjust discrimination against the petitioner and the carriers using its tracks, involves questions both of fact and law.

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Now, it clearly appears from the foregoing statement of facts that respondent has already established, and has in use in the city of Louisville, four suitable, ample, and conveniently located and fully equipped yards and depots, at one or the other of which it receives and delivers all freights arriving at or departing from Louisville, and makes all its interchanges of freight with other lines, furnishing to the latter at said places "all reasonable, proper, and equal facilities," not only for such interchange of traffic, but also "for receiving, forwarding, and delivering of passengers and property to and from its line or lines, and those connecting therewith," and does this without discrimination in its rates and charges as between such connecting lines. At petitioner's Seventh street and Magnolia avenue connection neither respondent nor petitioner has any yard, station, or depot; neither owns any ground there except respondent's right of way, 66 feet in width, on which its double main tracks are located; neither has any buildings, sheds, or platforms there for the reception and accommodation of freights to be handled and exchanged at that point; nor has either of them any clerks or employees stationed there for the inspection of cars, receipting for freights, etc. Without such accommodations, and without the employment of such clerical force located there, an interchange of traffic at said point can not be made in a proper and convenient way to either party. *

With no facilities at said Seventh street and Magnolia connection for the Interchange of traffic, or for the receiving, forwarding, and delivering of property there, and being under no legal duty or obligation to provide such facilities at said point, upon what principle can it be successfully asserted that in declining to transact such business at such place respondent is refusing or denying to petitioner and the roads using its track "all proper, reasonable, and equal facilities" for the interchange of traffic, or for receiving, forwarding, and delivering of property, such as it has provided and affords to other connecting lines at its Ninth and Broadway yard and depot? ***

It is perfectly manifest from the location of the said Seventh street and Magnolia connection, and from the lack of all suitable and proper accommodations there for conducting the business involved in the interchange of freights, and from the manner in which such freight, whether in carload or broken lots, would have to be handled by respondent, that, if respondent is required to furnish at that point all proper, reasonable, and equal facilities, or, as required by the order of the Commission, "the same equal facilities" which it furnishes and affords to the lines connecting with it at Ninth and Broadway yard, petitioner will thereby secure benefits and advantages superior to those conferred upon any other connecting line or lines, and largely, if not entirely, at respondent's expense. The order of the Commission imposes no terms and conditions under which the interchange at said connection shall be made.

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But without the imposition of such terms and conditions it is clear that petitioner and the railroads using its tracks and seeking an interchange at said connection will secure, without cost to themselves or compensation to respondent, services and the benefit of facilities and of employees, for which other connecting lines interchanging at other places make respondent compensation, and bear their proportion of the terminal expense. The law never contemplated such results.