his services. Just before the opening of this session we reengaged him. In the meantime he has been in the employ of one or two organization, which have been seeking the same legislation; the Interstate Cattle Growers' Association, for one.

The CHAIRMAN. How many salaried officers are there in connection with this

Mr. BACON. With this movement?

The CHAIRMAN. With this movement.

Mr. BACON. No one but Mr. Barry, who is employed as secretary. The CHAIRMAN. What is his salary?

Mr. BACON. His salary while employed by the committee has been $250 a month.

The CHAIRMAN. And his expenses?

Mr. BACON. His expenses in traveling?

The CHAIRMAN. Was there not a fund raised at your last meeting for the purpose of agitating this question?

Mr. BACON. For the purpose of publishing matter relating to it, and enlightening the public as to the progress in it and as to the purpose of it.

The CHAIRMAN. And there is no compensation paid in any way to any person save Mr. Barry?

Mr. BACON. Not a dollar in any way, shape, or manner. On the contrary, the members of the committee have gone to a good deal of individual expense on their own account. The members of the committee are scattered in various parts of the country, and each one is exerting his influence, of course, in his particular section of the country.

The CHAIRMAN. To what extent, to your knowledge, does the Interstate Commerce Commission or any of its officers aid in the dissemination of your literature?

Mr. BACON. To no extent whatever. We have no connection with the Commission in any way, shape, or manner.

The CHAIRMAN. None of its officers?

Mr. BACON. None of its officers?

The CHAIRMAN. Yes.

Mr. BACON. Except occasionally we have consulted with them as to the desirability of certain provisions of the bill.

The CHAIRMAN. To what extent does your committee, or do members of your committee, use the offices and the employees of the Interstate Commerce Commission in the dissemination of your literature or for your other purposes?

Mr. BACON. In no way whatever, sir. [Retiring in favor of Mr Cooper.]

The CHAIRMAN. I would like to pursue this matter a little further. We can hear Mr. Cooper at a later period. Have you considered the provisions of this bill, which is pending, in their relation to all of the public interests, in your judgment?

Mr. BACON. We have certainly sought to do so.

The CHAIRMAN. You have sought to do so?

Mr. BACON. Yes, sir.

The CHAIRMAN. Have you considered it in the relation that it bears, or is claimed to bear, to a disturbance of the powers between the three coordinate branches of the Government?

Mr. BACON. We have had no occasion, that I am aware of, to go into the constitutional question. I do not know that the question of the constitutionality of this bill has been raised by any of the opponents of the bill. The several distinguished railway attorneys who appeared before the committee offered no suggestion to that effect, so far as I— I am sure they did not. I was going to say that so far as I observed, they did not; but I have read their testimony over and over very carefully, and I am sure that they did not. Hence I did not think it necessary to deal with it.

The CHAIRMAN. The bill you advocate proposes to confer legislative power upon an executive branch of the Government, does it not?

Mr. BACON. It proposes to confer a delegated legislative power upon the Interstate Commerce Commission.

The CHAIRMAN. You understand that to be a part of the executive branch of the Government, do you not?

Mr. BACON. I hardly regard it as such, Mr. Chairman. The members of the Commission are appointed by the President, individually; but he has no control over them; no direct control-is not connected with any department of the Government.

The CHAIRMAN. Its duties are solely executive at the present time, are they not?

Mr. BACON. It hardly seems so to me.

The CHAIRMAN. It does not?

Mr. BACON. It seems to me that they are, perhaps, probably, of an administrative character. Whether that would properly be termed executive or not I can not say.

The CHAIRMAN. Have you entered into the question of whether or not there is any power of review by any court of any act of the Commission, that it might perform through this grant of power to fix rates? Mr. BACON. The bill specifically provides for a review by the circuit court upon application of the carrier?

The CHAIRMAN. But for what purpose? What question would the court review? You are familiar with all this subject, I take it; you have been six years constantly engaged on it.

Mr. BACON. The bill specifically states that the court shall review it with respect to its lawfulness.

The CHAIRMAN. With respect to the lawfulness of the rate?

Mr. BACON. With respect to the lawfulness of the order. It says that their orders shall be subject to the review of the court as to their lawfulness, reasonableness, and justice.

The CHAIRMAN. That would involve the question as to whether their rate was a reasonable rate.

Mr. BACON. That would be, I think, for the court to determine. The CHAIRMAN. Have not the Supreme Court of the United States specifically refused to pass upon any question of the reasonableness of

rates?

Mr. BACON. The Supreme Court has decided that it has no power to pass upon rates to be adopted in the future.

The CHAIRMAN. Have they not decided further, have not the Supreme Court held, that the only question in connection with rates that they can pass upon is as to whether or not a given rate is an act of confiscation, and that they have nothing to do with whether a rate is reasonable or not?

Mr. BACON. I have not so understood the rulings of the court.
The CHAIRMAN. You have not?

Mr. BACON. But the Federal courts have, as you know, at various times passed upon that very point, as to whether the proposed rate, or a rate proposed by a State railway commission, was confiscatory in its effect, or would be confiscatory in its effect.

The CHAIRMAN. Yes.

Mr. BACON. They overruled the orders of the State commissioners on the ground that they were of that nature.

The CHAIRMAN. Yes; that they were confiscatory?

Mr. BACON. Yes, sir.

The CHAIRMAN. But have they not refused to pass upon any other question than that of whether the rate was confiscatory? Deciding as to the mere reasonableness or justice of a rate they hold to be a legislative act, and outside of the jurisdiction of the court, do they not?

Mr. BACON. They hold that a rate for the future is outside of the jurisdiction of the court; that it can not pass upon a rate for the future. The CHAIRMAN. That is your understanding of the matter? Mr. BACON. That is my understanding.

The CHAIRMAN. And your advocacy of this bill is based upon that idea, that the court has the power to pass upon a question of the reasonableness of rates?

Mr. BACON. No; I could not say that it was based upon that; it is based upon the necessity, which is manifest, that some tribunal should decide between the public and the companies in cases of dispute as to the reasonableness of rates.

The CHAIRMAN. You would still advocate the passage of this bill, even if you knew that the courts would not pass upon the action of the commission in the fixing of a rate?

Mr. BACON. I do not go as far as that, Mr. Chairman. I feel, or at least I have thought, that those were matters for the court to determine for itself.

The CHAIRMAN. But suppose they should so hold, would you still be in favor of the bill?

Mr. BACON. The court has held that the Commission in this case, in ordering changes in rates, has gone beyond the power conferred by the present act. Now, if we confer the power for them to make such changes by the present act, and the court decides that that is unconstitutional, we would have to abide by the result; but we would like to have the opportunity to see

The CHAIRMAN. Have you discussed those questions?

Mr. BACON. I have not discussed the legal questions themselves very much.

The CHAIRMAN. Have any of those questions been presented to this committee by anybody?

Mr. BACON. The constitutional questions I do not think have been specially presented to the committee. We have presented the requirements of the situation, so far as the commercial organizations are concerned.

The CHAIRMAN. For relief?

Mr. BACON. For relief.

The CHAIRMAN. But you have not considered nor presented the legal aspects of the remedy?

Mr. BACON. We do not seem to have had any occasion to do that, for the reason that the railway opponents of the bill have not suggested any such necessity. I will say, however, that in the testimony presented by the commercial organizations, several of the members-four of the members of the Interstate Commerce Commission, did go into the question of the legality of this proposition, each for himself. And also Mr. Kernan, of New York, the distinguished lawyer who was four years chairman of the State railway commission of New York, went into it quite thoroughly before this committee.

The CHAIRMAN. You remember that Mr. Prouty stated to this committee that he did not know whether or not this bill was a wise one, do you not?

Mr. BACON. At one time he said that he had not given it sufficient study to determine.

The CHAIRMAN. That was at the time he appeared before this committee, was it not?

Mr. BACON. I could not say specifically, in regard to that; but I know that Judge Prouty, in his testimony, did advocate the bill very strongly, and he has since expressed his approval of it, as have also the other members of the Commission.

The CHAIRMAN. That is all I care to ask for the present.

Thereupon the committee adjourned until Tuesday, December 13, 1904, at 10.30 o'clock a. m.

TUESDAY, December 13, 1904.

STATEMENT OF MR. E. P. BACON-Continued.

The CHAIRMAN. Mr. Bacon, are you ready to proceed?

Mr. BACON. Yes, sir; I am ready to answer any questions that may be asked of me.

The CHAIRMAN. Did you intend, by an answer that you made the other day, to say that the Interstate Commerce Commission had not aken an active part in the advocacy of your proposition to give them the power to establish railway rates?

Mr. BACON. So far as the organization which I represent is concerned, they have not.

The CHAIRMAN. Has there been at any time an effort on the part of you or your organization to procure that result?

Mr. BACON. Not in the least; no, sir.

The CHAIRMAN. Were you cognizant of it at the time that the railway commission did, in a former meeting, instruct their secretary to prepare and send abroad a letter advocating, as the views of the commission, this increase of power or grant of power?

Mr. BACON. That I have no knowledge of.

The CHAIRMAN. You have no knowledge of it?

Mr. BACON. I know it is not in connection with this organization which, as you understand, was formed in 1900.

IRMAN. Well, your organization was formed in 1900?

Mr. BACON. Yes, sir; November, 1900.

The CHAIRMAN. But there was another meeting in the year before, out of which it was in part formed, was there not?

Mr. BACON. It succeeded the organization known as the League of National Associations.

The CHAIRMAN. When you speak of your organization, do you exclude the prior organization?

Mr. BACON. I speak only for the present organization.

The CHAIRMAN. Did you have no knowledge of the transactions of the other?

Mr. BACON. I did have some partial knowledge.

The CHAIRMAN. You did have?

Mr. BACON. Yes, sir.

The CHAIRMAN. Did you know, or was it through your advice or procurement, that on the 8th day of December, 1899, the Interstate Commerce Commission made the following order:

Cooperation with certain mercantile organizations to secure the adoption of an amendment to the act to regulate commerce being under consideration, it was unanimously voted to instruct the secretary to cooperate with the representatives of these organizations for the purpose of securing the adoption of necessary amendments, and particularly the passage of a bill which has been approved by such organizations at a meeting held in Chicago on November 22, 1899, and to that end to give the public information as to the present state of the law and the necessity of amending it by distributing such reports, papers, and documents, as are designed to accomplish that purpose, and to devote himself assiduously to such duties.

Did you know of the passage of that order?

Mr. BACON. I do not think I ever saw that order.
The CHAIRMAN. Did you know of its passage?
Mr. BACON. I do not recollect of knowing of it.
The CHAIRMAN. Did you aid in securing its passage?
Mr. BACON. I did not. I knew nothing of it.

The CHAIRMAN. Did you urge in any way, as the representative of your committee, this cooperation on the part of the Commission? Mr. BACON. I did not; no, sir.

The CHAIRMAN. Were you at that time active in this matter?
Mr. BACON. I was, to some extent.

The CHAIRMAN. Were there other agents of that society then cooperating with you?

Mr. BACON. That can hardly be called a society. It was a convention similar to the one that was held in 1900, composed of delegates from national commercial organizations only.

The CHAIRMAN. Do you know what was the result of that action which I have called attention to?

Mr. BACON. It resulted in pressing for the passage of the Cullom bill, which had been drawn just previously thereto.

The CHAIRMAN. Pressing by whom?

Mr. BACON. I think by one or two members of the Commission; perhaps by several.

The CHAIRMAN. What bill was drawn?

- Mr. BACON. The bill known as the Cullom bill.

The CHAIRMAN. Yes, sir; but I am speaking more particularly about the results that followed this action that I have just read.

Mr. BACON. Those results were simply an effort on the part of the organizations associated in that effort to secure the passage of the Cullom bill.

The CHAIRMAN. Do you know anything of the circular letter that was prepared by Edward A. Moseley, secretary of the Interstate Commerce Commission, and disseminated generally, or extensively?