plaint, and with the power to put rates into effect and then to sit as a court, and if the rates were not observed or any regulation promulgated by them as a commission was not obeyed, they have the right as a court to act. We have all the paraphernalia of a court. We have the marshal, called a bailiff, who serves our processes; we have the right to summon the railroad if it violates any of our enactments; we have the power and the right to make enactments, and when we summon the parties we have the right to try them and impose a fine on them and to issue a process from our clerk's office, and to enforce that fine. I doubt whether there has ever been a body created that so distinctly combined legislative, judicial, and administrative functions of that kind.

The CHAIRMAN. And inquisitorial?

Mr. CRUMP. Yes, sir; and inquisitorial. But, mark me-no, Mr. Chairman, I do not say inquisitorial, because I do not think it is proper. Either the Supreme Court of the United States is wrong or it is not inquisitorial to do what the Government has the right to do, and to do what it is its duty to do. I come back to this original proposition, that the making of rates and the regulation of railroads is an exercise of governmental power. And when we create a tribunal we are not creating a tribunal to pry into private secrets or to exercise dominion over private property, but we are taking away from private persons governmental functions which they have been allowed to discharge. So that I say it is not exactly inquisitorial, in my mind.

The CHAIRMAN. When I asked you the question I was under the impression that the word "inquisitorial" might cover duties and purposes that were not offensive.

Mr. CRUMP. I understood, of course, the meaning of the term, sir. But I was only coming back to this original principle, which I had in mind. I will not detain the committee any longer. I think that there are tribunals in the country that can be entrusted with the making of laws and the executing of them at the same time.

STATEMENT OF HON. WILLIAM R. HEARST, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK.

Mr. HEARST. I have practically finished with my bill, but I notice that two bills have been introduced since I addressed the committee the other day and that those bills contain some provisions that are not in my bill, and they do not contain other provisions that are in my bill. The CHAIRMAN. Will twenty minutes be enough time for you? Mr. HEARST. That will be ample.

Mr. RICHARDSON. What bills are these that you speak of?

Mr. HEARST. Bills introduced by Mr. Esch and Mr. Townsend. Mr. ADAMSON. Have you not seen the bill introduced by Mr. Davey, also?

Mr. HEARST. Yes, sir; I saw something introduced by Mr. Davey. Mr. MANN. And by Mr. Shackleford and others?

Mr. HEARST. I made particular reference to the bills of Mr. Townsend and Mr. Esch because they contain many provisions similar to those in my bill, and, as I say, they contain some provisions that are not in my bill, and my bill contains some provisions that are not in theirs, and I do not propose to criticise, but simply to say why I did not include certain provisions and why I did include others which are not in the bills which Mr. Townsend and Mr. Esch have just introduced.

As the time is very limited, I suggest that I take merely the most important provisions.

Section 1 of Mr. Townsend's bill establishes a court of transportation. I think perhaps the name "court of transportation" is fully as good as the name "court of interstate commerce," which is in my bill.

My bill provides for three judges at salaries of $10,000 a year each. Presumably, better judges can be obtained for $10,000 each than can be obtained for $8,000. Anyhow, if they are to be the best grade of judges, they should receive compensation in proportion to their excellence. I maintain that it is better to have three first-class judges with first-class salaries than to have five slightly inferior judges at $8,000 a year, or seven still slightly inferior judges at $6,000, or nine at $4,000, or a dozen at $1,000 a year. I believe in good salaries for good judges.

Section 2 does not call for special comment. It provides, like my bill, for sessions of court in any part of the country.

Section 3 confers upon the court jurisdiction over all suits brought to enforce the act, and requires no special comment, embodying as it does the principles of my bill.

Section 4 merely amplifies section 3 by providing generally that the court shall possess all the powers of a circuit court of the United States. Section 5 of Mr. Townsend's bill provides, as does my bill, that the hearing in the transportation court shall be upon the record made below, but it contains a clause permitting evidence which the railroad claims could not have been with due diligence discovered before the trial by the Commission to be offered there. I did not include that in my bill, because it seemed to me that anything of that kind simply left a large loophole, and would result inevitably in the double trials which we are so anxious to avoid and which are such an abuse under the existing system.

Mr. ADAMSON. While that may be right, ought not the new hearing to be had before the Commission and not before the court? Ought not the additional testimony to be heard before the Commission? Do you think it is right for the Commission to be reversed on testimony that it never heard and passed upon at all? If there is going to be. a rehearing as provided on the showing of due diligence on the part of the railroad, ought not that rehearing to be had before the Commission and not before the court that is reviewing the proceedings of the Commission?

Mr. HEARST. That is, in a way, the point that I was trying to make. But I do not think the case should be remanded to the Commission on that point. The case might properly be remanded if the Commission had refused to accept evidence which the defendant had offered and which ought properly to have been accepted.

Mr. TOWNSEND. Does the bill that you are discussing make provision for that?

Mr. HEARST. The bill which you introduced, Mr. Townsend, so far as I am able to understand by a hasty reading of it, in section 6 provides that the court may examine witnesses and bring before it parties from all over the country. This is, of course, only necessary when there is going to be a double trial, and it seems to me that your bill contemplates to that extent the continuation of the double-trial evil. It leaves a loophole for the double trial and for possible delays and the

other evils of double trials. I do not presume to dictate what you should put in your bill, but I say that I did not introduce it in my bill for the reasons given.

Furthermore, it should be observed that my bill provides for and contemplates such expeditious action after the decision of the Commission that there will be practically no opportunity to discover additional evidence, since a very brief interval will elapse between the trial before the Commission and the hearing under appeal.

Mr. ADAMSON. You do not hope for the millennial condition of the law that will cut off all possibilities of litigation?

Mr. HEARST. Not unless you pass my bill, and I doubt very much if you will do that. [Laughter.]

Section 7 of the Townsend bill contains no noteworthy provisions except that authorizing the transportation court to grant temporary restraining orders at any time previous to the hearing of the appeal. The opportunities for appeal are more limited under the language of my bill, which says the court "can only grant stays in case of obvious and manifest error." The whole object of my bill, as I explained it yesterday, is to prevent delay and secure effective action in the briefest possible time.

Section 8 of the Townsend bill provides for the summoning of talesmen to act as jurors in the District of Columbia in cases involving right of trial by jury. The cases contemplated are damage suits for reparation which must be brought before a jury. The present procedure is that when the Commission awards or recommends reparation, the shipper proceeds before a jury in any circuit or district court where he resides to sue for damages, and on presenting the order of the Commission rests his case, whereupon the burden is thrown upon the railroad of showing that the order of the Commission is unjust. Under these circumstances it seems to me that the shipper is very likely to get fair consideration and full justice in each case, and there is not any complaint about the effectiveness of this procedure, once the order of reparation has been made. To transfer all of these jury cases to the transportation court would greatly burden the court and interfere with its effectiveness in other cases.

Moreover, if I understand the provision of the bill rightly, this section provides for the summoning of talesmen to act as jurors in the District of Columbia by the marshal here, and consequently all cases of that kind would have to be heard here. And it would be a great hardship to compel complainants in all these cases to come to the District of Columbia for trial instead of being able to go before a jury in their own neighborhood.

Mr. TOWNSEND. I will state to you that, in my opinion, there should be an addition there, the same as there is in the last provision of the bill, that the court may order the marshal of the United States for the District of Columbia, or for any district where the court is held, to summon talesmen, if it makes provision that the chief justice may send two of the justices anywhere in the United States to try a case.

Mr. HEARST. Yes; with that correction, then, we will pass from that.

It still seems to me that this court is likely to have a greatly increased amount of business before it on account of the increased powers given to the Commission--the increased effectiveness given to the Commission-and that a great many cases, probably four or five times as many

cases as now come before the Commission will come before the Commission when it is believed that some effective aid may be obtained. The proposed court would then be unnecessarily burdened by these reparation cases, which are effectively and adequately dealt with under the present system.

Mr. TOWNSEND. Was that the experience during the first ten years when this power was exercised by the Commission?

Mr. HEARST. The first ten years were very largely employed in deciding what powers the Commission had through cases before the courts. It seems to me that in nearly all those cases which Mr. Spencer referred to the other day, cases in which the Commission was reversed in technicalities, that it was not very distinctly known what the powers of the Commission were, and as the cases before the court largely resulted in reversals, shippers must have been doubtful and discouraged and unwilling to bring cases before the Commission. I should think that it would hardly be fair to make a comparison with that period.

Mr. ADAMSON. I was going to ask this; if, instead of largely increasing the litigation, it is not true that the chief advantage to be hoped from securing a more perfect system is not this, that the carriers, knowing that correction and regulation would certainly follow in case it was necessary, would either adjust their rates more carefully themselves or satisfy complainants and compromise the matter before going into litigation?

Mr. HEARST. I think that is certainly to be hoped for. I do not say that it would increase the present amount of litigation, because I doubt if anything could increase the present litigation. Each particular case, like my coal case, which has taken over two years, is involved in an immense amount of litigation, and it is only a typical case.

Mr. ADAMSON. That was because of the system applying at that time to that case. If you had had a system from which it would have been possible to prejudge what the result would have been, would not they have compromised that case?

Mr. HEARST. I think they might, but if they have extended to them the opportunity to raise disputes on innumerable particulars they will certainly take advantage of it. If you give them opportunities for appeal after appeal they probably will continue to appeal and appeal. I am coming to the question of the granting of appeals and the granting of stays.

Mr. ADAMSON. The law already vests the common-law courts with power to grant an appeal, and it is immaterial whether you fix an appeal, is it pot?

Mr. HEARST. Hardly; because you can fix the appeal, as I did, on review to the interstate-commerce court, and not carry it up to the Supreme Court of the United States except in cases where a grave constitutional question is involved. That is one of the chief features of my bill.

Mr. TOWNSEND. Who is to decide what a grave constitutional question is?

Mr. HEARST. The Supreme Court frequently decides that question by a writ of certiorari. I am not a technical lawyer, but I believe that is the method.

Mr. ADAMSON. Does not a court often decide the thing in the outset, before it goes to the court?

Mr. HEARST. Yes, sir; and I provided in my bill that either the interstate-commerce court or the Supreme Court may decide that a case involves questions that should be reviewed by the Supreme Court. But the very distinct and notable difference is that practically the same amount of appeals are allowed in Mr. Townsend's bill as are allowed now, as you said just a moment ago, if I understood you, while in my bill that is not the case. The object is to secure expedition and effectiveness, and the appeal is limited to the one court.

Mr. ADAMSON. And the more of that you get the less litigation you have, because the railroads will find it out and fix their own rates.

Mr. HEARST. That is theory, and it may be correct, Mr. Adamson; but on the other hand, it seems to me, as I said, that the railroads are likely to take advantage of every opportunity for delay, and there is no reason for providing them with very many opportunities. That is my opinion. I am simply explaining why I did not put that in my bill. In my coal case, which I cited the other day, we found that the appeals took a year's time, and then the case was finally decided by the Supreme Court upholding the Commission in every point. One of the objects of my bill was to prevent that long delay and those numerous appeals. Naturally, I think my bill is preferable on that point.

Another thing is, despite the giving of the bond in the appeal to the Supreme Court, a situation must necessarily continue to exist which will work harm to the consumer-to the common people—say, for instance, as in the coal case. I speak of that as I am familiar with it. The rate is $1.55. Suppose the Commission should decide that a just rate was $1, and suppose that the appeals permissible under this bill consume, as they actually did in my coal case, a year, the rate dur ing that period would remain at $1.55 and the coal sold in New York would be based on the high rate, and the price would necessarily be in proportion to the high rate, and during that period, therefore, the consumer would be paying 55 cents more for his coal than he would if those appeals were not involved. And you can not recompense the consumer by any bond. You can only make that bond apply to the shipper.

Mr. ADAMSON. How could you fix a condition in a bond where a man was a business man whose business was being discriminated against, how could you fix a provision in a bond which would protect him against the future consequences of that unjust rate? During the pendency of the litigation his business might be wiped out of existence entirely.

Mr. HEARST. I did not understand that.

Mr. ADAMSON. You say that you can not provide for the consumer, but you can for the shipper. Now, the railroad makes a bond, suppose, for some excessive rate that the shipper pays, and that is all that you can get them to do?

Mr. HEARST. Yes, sir.

Mr. ADAMSON. If they were to give a bond covering all his business, the court would say that you can not testify about speculative damages, and that would shut him out, and by the time the litigation is ended and the railroad is compelled to pay back the excessive freight, the man's business is wiped out by the discrimination. How would you provide for that?

Mr. HEARST. I do not provide for any bond at all.

Mr. ADAMSON. How can it be done at all?