acted less conservatively. They passed maximum-rate laws in the seventies and entrusted their commissions with power to issue and enforce orders by legal processes. The Illinois commission may be taken as representative of these "strong" or supervisorymandatory bodies which emerged from the "granger" movement of the seventies. It had nearly all the powers which had been conferred upon the Massachusetts commission and in addition it could prescribe schedules of maximum charges and prosecute the railroad companies to compel compliance with the commission's decisions or the laws regulating railroad transportation. The burden of proof as to the reasonableness of rates was shifted from the state, as it had been under the common law, to the carriers.

These early state attempts to ameliorate transportation conditions, however, could hardly cope with the complex and weighty problems of an interstate character involved in the situation. Agitation for national action began shortly after the states had attacked the question of reasonable rates. At first the demand was principally for lower rates, and a Senate committee was appointed upon President Grant's recommendation in 1872 to investigate the problem of providing transportation for the constantly increasing volume of Western and Southern products to the Atlantic seaboard at lower cost. The report of this committee, (the “Windom Committee "), issued in 1874, did not result in legislation, but it served to inform legislators and the public on the railroad problem. Although freight rates declined in the decade following publication of this report, as a consequence of rate wars between competing carriers, a revival of general prosperity, progress in mechanical invention and operating economies, agitation for national regulation did not cease, for other evils were exciting public attention. Unfair discriminations were still being made between persons, localities, and commodities; railroad pools and traffic agreements had been established and were being strengthened at a time when hostility toward monopolies was becoming general; there was evidence of excessive speculation and fraud in railroad affairs; and important managers exhibited an attitude toward the public which revealed slight consciousness of social responsibility.

43 Cong. I sess., S. rep. 307.

These conditions led to an irresistible demand for national legislation which culminated in the act of 1887. In the thirty-three years which followed the passage of this law, numerous amendatory and strengthening measures were enacted. This legislation may be grouped into two periods which, however, are not sufficiently independent to be clearly marked by definite dates. In the first period, which extends approximately to the outbreak of the World War, the laws, reflecting the conditions which gave them birth, were of a restrictive or negative character, the prime motive being the elimination of abuses. The war called general attention to the necessity for ample railroad facilities as a measure of national defense and efficiency and may be said to have initiated the second period, in which the legislation was marked by a positive or constructive spirit, with the primary object of fostering the railroad system in order to provide ample facilities for the growing requirements of the country. In the first period, initiated by the enactment of the Interstate Commerce Act, there is to be observed first a gradual emasculation of the commission's powers, largely through judicial interpretation. The breakdown of this first attempt to regulate the railroads by national law was followed by an accumulation of abuses which aroused public opinion and resulted in more stringent regulation than had been contemplated by the original act.

The Interstate Commerce Act of 1887. Many bills to regulate the railroads in interstate commerce were introduced in Congress from 1868 on, session after session,' but all failed of passage in either house until 1874. In that year the House of Representatives passed a bill, aiming at rate reduction, and in 1878 it passed a bill, introduced by John H. Reagan of Texas, which was virtually the statutory predecessor of the Interstate Commerce Act. In 1885 the Senate resolved" that a select committee of five Senators be appointed to investigate and report upon the subject of the regulation of the transportation by railroad and water routes in connection or in competition with said railroads of freight and passengers between the several states." This committee, called

'For list of bills and resolutions see Briggs, Federal regulation of interstate commerce, 1862-1913. For full discussion see Haney, Congressional history of railways.

the "Cullom committee," accompanied its report by a bill embodying the results of its investigation and study. "The provisions of the bill," said the committee," are based upon the theory that the paramount evil chargeable against the operation of the transportation system of the United States, as now conducted, is unjust discrimination between persons, places, commodities, or particular descriptions of traffic. The underlying purpose and aim of the measure is the prevention of these discriminations, both by declaring them unlawful and adding to the remedies now available for securing redress and enforcing punishment, and also by requiring the greatest practicable degree of publicity as to the rates, financial operations, and methods of management of the carriers."

The Senate bill provided for a permanent administrative commission to make the suggested statutory regulation of interstate commerce effective. The House bill proposed a remedy through the courts after clear legal definition of abuses. There was, moreover, difference of opinion as to the practice of pooling; the House desired to render all traffic agreements illegal while the Senate proposed to subject them to administrative control. A deadlock ensued, but just at this time the Supreme Court, in the Wabash, St. Louis, and Pacific Railway case,' decided that the states had no power to regulate interstate traffic. Inasmuch as about threefourths of the country's railroad traffic was of an interstate character, it became manifest that national legislation would have to be enacted. Differences between the Senate and House were then adjusted by compromise. The creation of a commission was agreed upon, thus establishing administrative control as the Senate had desired, while the House was placated by the provision granting the courts power to entertain appeals. The House, moreover, obtained concessions in the prohibition of pooling and in the more rigorous long-and-short-haul clause.1o

Section II, as enacted, established the Interstate Commerce Commission, consisting of five members, not more than three of whom were to be of the same political party, appointed by the President with the concurrence of the Senate for six-year terms. While

10 See Haney: A congressional history of railways, vol. II, pp. 281-312, and Ripley, Railroads: Rates and regulation, pp. 450-1.

the act made the commission essentially an independent governmental agency in the performance of its duties, the Secretary of the Interior was given a certain degree of formal supervision over the commission in the authority to approve the employment and compensation of the commission's employees (Sec. 18), in the provision for his transmission of its annual reports to Congress (Sec. 21), and in the obligation imposed upon him to furnish suitable offices and necessary supplies and to approve expense vouchers (Sec. 18). Inasmuch as the greater portion of the act of 1887 has been recast by cumulative accretion of amendments, it will serve no useful purpose to present here a summary of the act as originally enacted." The commission established by the act was organized on March 31, 1887, and the other provisions of the law became effective on April 5.

In general the act was founded upon various state laws and represented little that was novel. Nevertheless, as was stated by the Cullom committee: "In undertaking the regulation of interstate commerce, Congress is entering upon a new and untried field. Its legislation must be based upon a theory instead of experience and human wisdom is incapable of accurately forecasting its effect upon the vast and varied interests to be affected." In anticipation of the probable need for amendment of the law, Congress (Sec. 21) directed the commission to report to it such recommendations as to additional legislation on the regulation of interstate commerce as it might deem necessary. Accordingly in its first three annual reports the commission pointed out the desirability of amending the law in the following particulars:

I. Clarification of the ambiguity in regard to inclusion within the act of express, sleeping-car, and parlor-car companies; oiltank cars, live-stock cars, etc.

2. Provision against the sudden raising of joint rates.

3. Authority and means to effect uniformity in publishing rates, to supervise and examine contracts and statistics required by law to be filed.

4. Extension to the shipper or his agents of the penal provisions in the act applying to the carrier or his agent for granting undue preference or advantage by false billing, false classification, etc.

"See Ripley, p. 452, and Johnson and Van Metre, Principles of railroad transportation, p. 495, for a summary of the provisions.

5. Statutory authority to permit the commission to obtain testimony by deposition as in the courts of the United States in order to facilitate business and lessen expense.

Congress complied in part with the last four of these recommendations, which had been suggested by the difficulties encountered in securing effective enforcement of the then existing law, but it did not deem it wise after this short trial of the regulatory system to extend it to express, sleeping-car, and other outside carriers."

In the act of March 2, 1889" a remedy was provided by mandamus, without the necessity of previous investigation by the commission, in cases of denial of equal facilities to shippers while, on the other hand, shippers' attempts to obtain lower rates by means of false billing and other fraudulent devices were made penal and criminal offenses. It was required by the law that joint tariffs should be published and notification be given of changes. Violation of the provisions of the act prohibiting the giving of rebates and discriminations by officers of the carriers was made punishable by fine or imprisonment or both instead of by fine as previously. This amending act also abolished the formal supervision of the Secretary of the Interior over the commission's accounts, a provision in the law which had subjected both parties to unneces

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Congressional Record, vol. 93, June 12, 1888, p. 5145.

25 Stat. L., 855. Previous to the passage of this law, by act of August 7, 1888 (25 Stat. L., 832), certain duties were imposed upon the commission in regard to government aided railroad and telegraph lines. The commission was authorized to determine and order what arrangement was proper to be made by a government aided railroad and telegraph company against which complaint had been made of refusal to observe certain requirements for interchange of business specified in the law. Such order of the commission was enforceable by mandamus in the courts of the United States. The commission was also authorized to institute any inquiry upon its own motion and to the same effect as if complaint had been made. Reports to the commission by the railroad and telegraph companies referred to in the statute were provided for. Little appears to have been accomplished by the commission under this law. In the annual report for 1895, the commission reported that only three out of twelve companies had filed the required information and that the Attorney General had been notified of this failure on the part of the companies to comply with the law. In the subsequent annual reports nothing appears regarding the operation of this law, which has become a dead letter for all practical purposes.