In accordance with the understanding of the Commission a committee of the Master Car Builders' Association made a preliminary report on August 14, 1895, to the executive committee of said association, recommending the positions which grabirons and handholds should occupy. This was submitted to an informal ballot. Of the votes cast, some 973 out of 1,477 possible votes, more than two-thirds of them were in favor of the proposed modifications. It is therefore shown that a large percentage of the roads favor the committee's report. But this action imposes upon the railroads no legal duty. Neither are they bound by their own rules, the matter not being finally acted upon. It is deemed a matter of importance that uniformity of location be had, otherwise the law loses much of its efficacy. The cars of all roads are so intermingled when hauled in trains that if the master mechanics of the various roads exercise their individual preferences as to location of handholds, switchmen and brakemen must be unable to know where to find, especially in the night on a moving train, the instrument of safety which the law has provided for them. It is therefore suggested, with a view of rendering the law more effective, that the location of these safety appliances be fixed by legislative enactment.

The validity of that portion of section 5 which authorizes an association of individuals to prescribe the standard height of drawbar has been questioned, and it has also been claimed that the phraseology used to fix such standard is ambiguous. While the standard height which has been prescribed under the provisions of section 5 may be determined without any difficulty (and the Commission interprets the height of drawbars prescribed for cars used on standard gauge roads to be 34 inches maximum height, measured perpendicular from the level of the tops of the rails to the centers of the drawbars, with an allowable downward variation of not exceeding 3 inches), it is suggested, nevertheless, that the standard which has been in operation since July, 1893, might now be definitely fixed by Congress. The object sought to be obtained under the operation of this section of the law is uniformity in the height of drawbars, but if any opportunity is afforded for various constructions of the law, or for railroad superintendents to exercise their individual preferences, difficulties and embarrassments are sure to arise. Although there may be nothing in the objection made, as above stated, to the method provided in section 5 for fixing the standard height of drawbar, it would be wise to put the matter at rest by legislative enactment and thereby prevent any litigation which may arise and cause expense to the Government as well as to individuals and the railroads.

In the appendix will be found a detailed statement as to the matter of safety appliances.

The number of railway employees killed during the year ending June 30, 1894, was 1,823, and the number of injured was 23,422. As

compared with the previous year this shows a decrease in the number of employees killed of 904, and a decrease in the number of injured of 8,307. One explanation of this large decrease in casualty during the year ending June 30, 1894, is the reduction in the number of railway employees, which shows a decrease, as compared with previous year, of 93,394. This reduction in the number of employees is not to be taken as a full explanation of the falling off of the casualties to employees. What the condition has been for the year ending June 30, 1895, is largely a matter of conjecture, no statistics covering this year having yet been compiled. It is known, however, that the equipment of cars with grabirons and handholds as required by law has been rapidly going on, and that the majority of all cars are now so equipped. A large number of cars and locomotives have also been equipped with train brakes and automatic couplers during the year. It is believed, therefore, that the ratio of accidents for the year ending June 30, 1895, will show a still further decrease.

For the year ending June 30, 1894, the number of employed for one employee killed was 428, as compared with 320 in previous year; the number of trainmen employed for one killed was 156, as compared with 115 in previous year. This is marked improvement, and is believed to be due to the use of better safety equipment.

It has been contended that legislation of this kind was special in its character and unjustly discriminating against railroad companies and thereby deprived them of the equal protection of the laws. This objection is considered by the Supreme Court of the United States in the case of the Chicago, Kansas and Western Railroad Company v. Pontius (157 U. S., 209), where the court said that

The hazardous character of the business of operating a railroad seemed to call for special legislation with respect to railroad corporations, having for its object the protection of their employees as well as the safety of the public; that the business of other corporations was not subject to similar dangers to their employees, and that such legislation could not be objected to on the ground of making an unjust discrimination since it met a particular necessity and all railroad corporations were, without distinction, made subject to the same liabilities.

The same court recently held that the common law made it incumbent upon the promoters of works of necessity or utility where such occupation is attended with danger to life, body, or limb, "to provide all appliances readily attainable known to science for the prevention of accidents," and that the neglect to provide such appliances will be regarded as proof of culpable negligence. (Mather v. Rillston, 156 U. S., 391, March, 1895; Baltimore and Potomac Railroad v. Mackey, 157 U. S., 72.)

It will be perceived that the amendments recommended, if adopted, would impose no new liability on the railroad companies; but they would make more effective the general provision of the law respecting safety appliances.

TRAFFIC AGREEMENTS.

In several of its former reports to Congress the Commission has had occasion to refer to the subject of pooling of freights and division of earnings, which is prohibited by the fifth section of the act. This feature of the law has lost nothing of its importance with the lapse of time, and recent events make it appropriate to refer again to a subject of such general discussion.

Shortly before the act to regulate commerce went into effect the companies constituting the Trunk Line Association, which were then operating under a pooling agreement, made a new contract with each other, in which the pooling features of their former agreements were omitted, and filed the new contract with the Commission.

Various railroads engaged in interstate commerce entered into contracts with each other both before and after the act took effect. These contracts frequently contained provisions for the maintenance of uniform and agreed rates, and some of them contained provisions appar. ently intended to produce an apportionment of traffic among competing lines.

The preamble of the articles of association of the trunk lines, of November 6, 1885, is as follows:

Whereas past experience has fully established the fact that the joint action of competing railroad companies in establishing and adhering to uniform rates of transportation for like services to the public is necessary in order to avoid the evils of unjust discrimination and fluctuating rates, so injurious to commercial as well as to the railroad interests;

Therefore, the parties above named enter into the following contract for the purpose of jointly establishing over their respective roads on competative traffic, both passenger and freight (hereafter more particularly specified), and of publishing said tariffs and strictly maintaining the same.

It will be observed that the declared objects set forth in this preamble-the prevention of discrimination and the publicity of rateswere prominent features of the interstate-commerce law enacted about fifteen months later. The distinct purpose, however, of preventing fluc. tuations in rates seems not to have been one of the objects prominently in the mind of Congress, since the act as originally passed permitted reductions of rates without previous notice.

While the interstate-commerce act permits and encourages the establishment of joint tariffs by carriers operating continuous lines, there is no authority in that act for the joint establishment and maintenance of rates by competing carriers operating substantially parallel lines. On the contrary, the tenor of the fifth section seems plainly opposed to any arrangement tending to limit railroad competition. The act, however, contains no express prohibition of contracts to maintain rates unless that purpose is accomplished by a pooling of freights or division of earnings. Prior to the passage of the act the plan adopted by the carriers to regulate competition and to maintain agreed rates was the

pooling system, under which, whenever it was effective, each of the competing lines secured an agreed percentage of the total traffic, or in default of that an equivalent in money paid out of the pool. After the passage of the act many railroad companies apparently sought to maintain rates by such adjustments of tariffs as would in effect produce an apportionment of traffic among competing lines, and agreements containing provisions to this end were from time to time filed with the Commission. For example:

Article VIII of the articles of association of the trunk lines of February 20, 1889, is as follows:

If the maintenance of uniform tariffs by all lines reduces the traffic of any party below a fair proportion of the traffic in competition, the tariffs may be so adjusted from time to time as to protect such lines from an unjust depletion of traffic; such adjustment to be made under the rules of this Association.

And the revised articles of organization of the Central Traffic Association, effective December 1, 1893, contain the following:

Whenever any party hereto feels that its traffic is being unjustly depleted, it shall represent the facts in writing to the Commissioner, who shall promptly endeavor to secure to the parties hereto their fair shares of traffic.

The agreement of the Central Traffic Association for division of eastbound dead freight, dressed meats, and live stock from Chicago, in effect from May 1, 1894, is substantially different from any of the preceding. This contract contains, among other things, the following provisions: That of the gross tonnages of each group (one tonnage group consisting of all dead freight, except dressed meats, and the other of dressed meats and live stock) each company shall be entitled to transport only such part as may be mutually agreed after an effort to that end by the parties, or, failing such agreement, such part as may be decided by arbitration, as provided in section 11 hereof, to be its fair proportion of each group after the arbitrators have given a hearing to the parties and consideration to all circumstances deemed by them pertinent thereto, and that the proportion awarded each company be made known to all.

Fifth. That each party hereby agrees unconditionally to limit its carriage to its agreed or awarded apportionment for the twelve calendar months from May 1, 1894, and thereafter until thirty days' written notice shall have been given by any party hereto to the commissioner of the Central Traffic Association of its intended retirement herefrom.

Sixth. That if it be found impracticable to limit the monthly carriage of the tonnage in either or both of the said tonnage groups to the proportions to which the parties hereto are thus entitled (it being permissible to offset the excess in one tonnage group with the deficit in another) they will adopt, observe, and enforce some one or more of the following farther means to that end, as they may severally from time to time elect, the commissioner of the Central Traffic Association to be from time to time advised, in writing, of such election:

(a) To promptly deliver excess tonnage to companies in deficit, who shall promptly receive and forward the same, and that both parties act in this respect as may be directed by the commissioner of the Central Traffic Association, who shall duly regard the geographical and competitive relations of such tonnage to deficit lines and their connections, and the reasonable interests of forwarders and consignees. (b) That should any company elect to so adjust its excess the disparities on tonnage existing in one month shall be transferred in the succeeding month, if practicable, but not later than the second month.

(c) That for said purposes unconsigned tonnage from Western roads or other sources shall be first used, and that no more actual tonnage be offered to a company in deficit in one month than is requisite to adjust the tonnage balances of the previous month, and such tonnage shall be tendered in as nearly equal daily proportions as practicable.

(d) That when property is delivered by companies in excess to companies in deficit the actual carriers shall assume the legal responsibilities and be entitled to the exemptions of the first intended carriers, except that any loss or damage occurring to property for which there is a legal responsibility shall be borne by the company in whose possession it may be at the time of the happening thereof.

Seventh. That should any company in excess desire to limit its carriage to its agreed or awarded proportions by the use of increased rates, such course shall be optional with such company.

Eighth. Section A: That should any company in deficit at any time elect to recoup the same by reduced rates the commissioner of the Central Traffic Association shall authorize the reduced rates applied for until such deficit has been equalized.

Section B. Should any company be authorized to use reduced rates as aforesaid the tonnage shall be charged to such carrier in the accounts at the full tariff rates.

This contract, as well as the other contracts of this class, contains provisions for securing uniform rates over competing lines, and each company contracts away and delegates to a committee of all the members of the association its rate-making power, and agrees not to compete by reduction of rates.

But while in the contracts of the Central Traffic Association and of the Trunk Line Association, above referred to, the maintenance of what was deemed a reasonable apportionment of traffic among competing lines was attempted by an adjustment of rates, this last-mentioned contract goes much further and provides a plan for maintaining such apportionment which is virtually, in our opinion, a pooling agreement, because the parties thereto engaged to divide among themselves, in proportions to be fixed by mutual agreements, the entire competitive traffic, each agreeing for its part to limit its business to the extent necessary for that purpose.

The Commission having reached the conclusion that this contract violated the fifth section, referred the matter, with the documents relating thereto to the Attorney-General, requesting him to direct the United States district attorney of the proper district to institute and prosecute necessary proceedings for the punishment of such violations.

The question involved is closely connected with questions arising under the antitrust law, so called, of March 2, 1890, in the case of The United States v. The Trans-Missouri Association, now pending in the Supreme Court of the United States. In that case the lower courts have held that the contract under consideration does not offend the antitrust statute, but an appeal has been taken from that decision to the court of last resort.

In June last the Commission inquired into certain agreements alleged to have been made between the Wiggins Ferry Company, an Illinois corporation, and the Terminal Railroad Association of St. Louis, a