is in fact in terms required to execute and enforce the provisions of the act. The question has been raised whether a strictly judicial tribunal, with the power of enforcing its own judgments, can consistently with the spirit of our institutions exercise the various executive and administrative functions which have been conferred upon this Commission.

But while Congress thought proper not to confer on the Commission the power of enforcing its decisions by its own process, leaving their enforcement to the courts on the petition of the Commission or any person interested, it nevertheless provided that the Commission's findings of fact, in any investigation and report made by it, should be deemed prima facie correct and true in all subsequent proceedings. And it further provided that the court having jurisdiction of such proceedings "shall have power, if it think fit, to direct and prosecute, in such mode and by such persons as it may appoint, all such inquiries as the court may think needful to enable it to form a just judgment in the matter of such petition."

In the only case where, as yet, these provisions have been construed by a Federal court, it was assumed by the court that, as the law now stands, the whole question passed upon by the Commission may come up to be heard in court de novo. If this be so, when the decision of the Commission is sought to be enforced, the court before which proceed ings are instituted for that purpose is not confined to the evidence introduced before the Commission, but all such new evidence may be introduced as is pertinent to the inquiries ordered by the court. The law does indeed provide that the Commission's findings of fact shall in all subsequent judicial proceedings be deemed prima facie evidence of each and every fact found. But this provision is of less avail than might be supposed, if other and additional facts may be brought before the court, which might as well have been brought before the Commis sion, and which, if before the Commission, might have produced a result diametrically opposite to that announced. Such a provision so construed "but keeps the word of promise to the ear and breaks it to the hope."

This condition of the law greatly enhances the difficulties of enforcing obedience to the decisions of the Commission, for it will readily be perceived that the Commission's findings of fact in a case made before it are of comparatively little importance if a new set of facts is allowed to be introduced when the matter comes into court. While it is truc that the decisions and recommendations of the Commission have generally been acquiesced in by the carriers, there have been a few exceptions to this rule, which practically illustrate the necessity for some alteration in the existing law, as will further on be suggested.

The embarrassment arising from the lack of inherent force and conclusiveness in the Commission's decisions is apparent, and even though they may not have the finality and inherent validity of the judgments

of a court, still it would seem that a character of much greater weight can and should be attached to them than they possess under the construction above referred to. It would seem that the conclusions and findings of fact of a Commission might without impropriety be given at least equal weight and finality with those of a master commissioner in chancery of one of the Federal courts.

What then, it may be asked, is the status and effect of a master's report before the court? A few quotations from authorities will suffice to make this plain.

The report of the master is received as true when no exception is taken; and the exceptions are to be regarded so far only as they are supported by the special statements of the master, or by evidence which ought to be brought before the court, by a reference to the particular testimony on which the exceptor relies. Were it otherwise, were the court to look into the immense mass of testimony laid before the Commission, the reference to him would be of little avail. (See Harding vs. Hardy, 11 Wheat, p. 126, opinion by Chief Justice Marshall.)

If the report has been fairly and honestly made without undue influence or manifest error, it should be permitted to stand. It is a matter of no moment that a different result might have been reached had the accounting been taken by the court. If the record shows that there was testimony pro and con, so that intelligent minds might differ upon the questions presented, the court will not presume to substitute its judgment for that of the master. His decisions upon disputed facts should be final.

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A master's report is not to be lightly brushed aside. It is entitled to respect. The proceedings before him have almost the same solemnity as a trial before a referee or a jury, and the familiar rule which precludes the court from setting aside a verdict which is not against the weight of evidence is to a great extent applicable. (See Welling vs. La Bau, 34 Fed. Rep., p. 41.)

These quotations suffice to show that the authoritativeness and effect which the law and universal practice give to the reports of master commissioners in chancery of the Federal courts are considerably greater than existing legislation, as its effect was assumed to be in the case above referred to, would accord to the decisions of the Commission when the latter come before the courts. The difference between them consists principally in the circumstance that where the master's report is in question the case made before the master, and that alone, can be considered by the court; no new evidence is admissible, and only that actually adduced before the master can be considered. Nor can even this be considered except to the extent that certain specific portions of it may be called to the attention of the court for the purpose of supporting exceptions specifically made to the master's conclusions or findings of fact.

To enable this to be done, the depositions, exhibits, and other testimony upon which the report is based must of course be returned into court with the report itself.

But when the report is filed the controversy between the parties is confined strictly to matters contained in the report, or in the accompanying testimony, the latter being considered by the court, only under the limitations above suggested.

The question is not what the rights of the parties are, or would be, if all the facts and circumstances actually surrounding them were before the court, but what are their rights under the case they have actually chosen to make before the master. The effect of the master's report, in other words, is not merely to shift the burden of proof from one party to another, in a case which is to come up for hearing entirely de novo, but it is to confine the hearing in court strictly to the case already made before the master.

Practically the only effect in the courts of a decision of this Commission against a defendant under the construction of the act, which, as above stated, has been assumed, would seem to be to shift the burden of proof from the original complainant to the party against whom the decision was rendered. With this exception, if this construction of the law is correct, the hearing may proceed, so far as the original defendant is concerned, as though there had never been any investigation before the Commission, or any report and decision made by it; or at least the facts found by the Commission may be controverted by other testimony, and new facts may be established by entirely new evidence. This certainly seems rather an impotent conclusion of so much labor and expense as is usually involved in a proceeding before the Commission; and it is hardly credible that either Congress or the commercial interests of the country, or the general public, supposed that the law would bear this construction. That it would be highly desirable that the decisions of the Commission should be given at least the weight and finality of the report of a master in chancery of the Federal courts would seem hardly to admit of doubt. Nor does there appear to be any constitutional objection to the enactment of legislation for that purpose.

Concerning the status of this Commission with reference to the Federal courts the following language has been used by one of the latter tribunals:

The functions of the Commission are those of referees or special commissioners, appointed to make preliminary investigation of and report upon matters for subsequent judicial examination and determination. In respect to interstate commerce matters covered by the law the Commission may be regarded as the general referee of each and every circuit court of the United States, upon which the jurisdiction is conferred of enforcing the rights, duties, and obligations recognized and imposed by the act.

After this explicit statement it seems somewhat singular that it should have been declared by the same judge in the same opinion that

This court is not confined to a mere reëxamination of the case as heard and determined by the Commission, but hears and determines the cause de novo upon proper pleadings and proof, the latter including not only the prima facie facts reported by the Commission, but all such other and further testimony as either party may introduce bearing upon the matters in controversy.

Having declared the Commission to be the commissioner or referee of

the court, it is surprising that the effect which is accorded to the report of a commissioner or referee should, in the same page of the opinion, be denied to a report of the Commission.

There certainly appears to be no reason, in the nature of things, why that effect can not and should not be given to the reports of the Commission. It is true that in the case of a master's report original proceedings have been commenced in the court itself, and the master acts under an order of reference from the court. But this is of no consequence; the law can surely create a tribunal for the preliminary investigation of any class of questions, give that tribunal's decisions at least the effectiveness of a master's report, and confine the revisory power of the regular courts to the case actually made out before such tribunal.

The commission therefore recommends the enactment of an amendment to the existing law, which shall embody substantially the following provisions and principles relative to hearings before the Commission, and to proceedings to enforce its orders, viz:

That notice of the time and place of hearing, and the opportunity to appear and be heard, shall be given by the commission to all parties interested.

That the production of testimony before the commission shall be governed by the rules of evidence prevailing on the chancery side of the Federal courts, any party being given the right to except to the admission or rejection of testimony.

That the report of the commission, after hearing, shall state specifically what changes, if any, should be made, and what action, if any, should be taken by any common carrier in respect to the matters under investigation, in order to conform its conduct and the management of its business to the requirements of this act.

That a copy of the report, with an order to cease from violating the law, be served on the carriers as now provided.

That in case of disobedience to the order of the Commission, the record of proceedings before the Commission, together with a copy of its recommendations, etc., shall be certified into court, with a petition asking the court to enforce obedience to the order of the Commission, notice of such application being duly given.

That the court shall be empowered thereupon to determine, upon request of parties, whether any matter embraced in the recommendations and order of the Commission entitles the carrier to a jury trial; and to frame an issue covering such matter, if any, for a trial by jury on the law side of the court. On the trial of such issue any relevant legal testimony to be admissable, and the proceedings at and after the trial to be in all respects as if the trial were had in an action at common law. That as to all matters embraced in there commendations and order of the Commission not requring jury trial, or as to which jury trial is not demanded, the court sitting as a court of equity shall proceed to hear and decide them, notwithstanding the pendency of any issue for jury trial.

That the hearing by the court, as to all matters not requiring jury trial, shall be confined to the record of proceedings had before the Commission, and to such errors in the record as shall be specifically pointed out by parties alleging error therein. That if the record discloses no error in the recommendation and order of the Commission, plainly prejudicial to the parties alleging error therein, the court shall enforce the same by proper process.

That if the record does disclose error in the recommendations and decisions of the Commission, plainly prejudicial to the parties alleging error therein, the court shall either make such final order as may be proper, or recommit the case to the Commission.

The constitutional guarantee of jury trial, it is believed, is here fully met; and, in cases not requiring jury trial, every requirement for the validity of a master's report and for its return into court, with the evidence on which it is based, is here provided for.

Every year of the Commission's experience only confirms its opinion. of the necessity for this amendment. No more authoritativeness, it is to be remembered, is asked for the reports and decisions of the Commission than the law and universal practice gives to reports of masters in chancery of the Federal courts. With less than this the investigations of commissions generally can, to use the language of Chief Justice Marshall quoted in a preceding page, "be of little avail."

The Commission believes that it would also be wise to provide in the act for rehearings by the Commission of cases which have been heard and decided, either by the Commission or in court, where a change of circumstances and conditions may render expedient a modification or reversal of previous orders.

UNIFORM CLASSIFICATION.

In every report heretofore made by the Commission the question of a uniform classification of freights has received attention.

In the report for 1887 the origin and diversity of classification of freights was treated of, the general necessity for a classification was discussed, the desirability of uniformity was explained, and some of the difficulties in the way of accomplishing uniformity were set forth. Some of the principles underlying the system of classification were also examined, as illustrating the difficulties in the way of arriving at uniformity upon all lines and in all sections of the country. The opinion was however expressed that despite all these difficulties the tendency was in the direction of uniform classification, and a doubt was expressed whether that tendency would be hastened by conferring upon a National Commission the power to make a common classification of interstate traffic for the interstate carriers of the country.

In its next report the Commission was able to state that very considerable progress in the direction of uniformity had been voluntarily made by the carriers during the preceding year. Attention was in that report particularly called to the adoption by the trunk lines, socalled, of the official classification, which to a large extent superseded a number of independent and conflicting classifications which had previously prevailed in the territory east of the Mississippi and north of the Ohio and Potomac rivers, a section where a greater volume of business is done by the railroads than in any other part of the country. It was observed of the official classification that it had not at first been entirely satisfactory to the parties agreeing upon it, and that it had from time to time been somewhat changed, though not radically. Other con