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financial situation and operation of the railroads, is also helpful to an adequate presentation of cases before the Commission. Perhaps the most disconcerting element in this form of practice is the long delay which ensues between the time of bringing the complaint and the final disposition by the Commission or the Courts. Sometimes this is a year, and sometimes two or three years.
It will be impracticable within the scope of this paper to cover all of the subjects over which the Commission has jurisdiction.
History and Development.
The original act to regulate commerce was passed and became a law on February 4, 1887. Prior to that time federal regulation of commerce was accomplished under the general power of Article 1, Section 8, of the Constitution, commonly known as the "commerce clause,” which confers upon the Federal Government the following power over commerce:
The Congress shall have power
to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
This has been the subject of judicial consideration in many cases, some of the notable earlier cases being Gibbons v. Ogden, 9 Wheat. 1, and Brown v. Maryland, 12 Wheat. 419.
Prior to 1870 little effort was made to supervise the railroad business of the country through the Federal powers, nor, indeed, did the states make any great effort to do so. About 1870 a general dissatisfaction with the railroad affairs of the country began to manifest itself. Particularly was criticism directed against the relationship of rates and charges, and their amounts. This sentiment was especially strong in the middle west. In this section a good many Granger societies were organized, consisting of country farmers and townsmen, and these were influential in securing the enactment of drastic laws for the regulation of the railroads. For about twenty years subsequent to that time the dissatisfaction with evils and offenses of the railroads became greatly magnified and the task of checking them was of transcendent importance to the people. The matter became a political issue. The paramount evil against which complaint was directed was the practice of discrimination in one form or another. In 1886, the Senate Committee on Interstate Commerce, of which Senator Cullom was Chairman, submitted a report accompanying the bill which became the original interstate commerce act, and at page 215 is this statement:
That a problem of such magnitude, importance and intricacy can be summarily solved by any master stroke of legislative wisdom is beyond the bounds of reasonable belief. Neither is it simply a tentative measure intended to pave the way for additional legislation.
The provisions of the bill 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
By contrast with the mass of subsequent legislation, Congress seemed singularly modest in this, its first attempt to cure the evils complained of.
The original act* is contained in but slightly more than nine printed pages. It now consists of 79 printed pages, and a number of miscellaneous subsidiary acts extending the powers and duties of the Commission, appreciably augment the laws under which the Commission now functions. The official index alone covers 85 pages.
The original act forbade, under heavy penalty, the practice of rebates, unreasonable preference and advantage, and pooling arrangements; rates, fares, and charges were to be published and filed with the Commission, and these
• 24 Stat. L. 379.
were also required to be posted for public inspection; the Commission was given authority to inquire into the management of the business of the railroads; carriage of freight was required to be a continuous passage from place of shipment to destination.
It will be observed that the original act gave to the Commission no specific rate making powers. It might inquire into the reasonableness of the rates, and they were empowered to see that there was no unjust discrimination against persons or localities. In 1897 the Supreme Court decided the Commission did not have the power, after condemning a rate as unreasonable, to require the railroads to establish a reasonable rate for the future. By the Hepburn Acte amending the original act to regulate commerce in 1906, the Commission was given the power to fix maximum rates for the future. In 1910 the Commission was empowered to suspend the effectiveness of newly proposed rates pending investigation into their reasonableness and propriety otherwise, and to order their permanent cancellation if found unreasonable or otherwise unlawful. This power is currently exercised in so-called "suspension proceedings.": The Commission was also empowered at this time to institute inquiries on their own initiative.
The Commission's Functions and Duties.
The original act created a commission consisting of five members, to be appointed by the President, by and with the advice and consent of the Senate; their annual salary was to be $7,500; not more than three Commissioners were to be appointed from the same political party. A Secretary to the Commission was provided for, with an annual salary of $3,500. The Commission was empowered to require annual reports from the carriers, and to fix the time and prescribe the manner in which such reports should be made. An annual report was to be made by the Commission to Congress.
Subsequent amendments to the act gradually enlarged the personnel of the Commission along with its duties, but
. The Maximum Rate Case, 167 U. S. 479.
it can be fairly stated that the personnel is always considerably behind the ever-increasing duties prescribed through the industry of Congress. At the present time there are eleven Commissioners, each receiving an anual salary of $12,000. They are appointed for seven-year terms, and not more than six to be appointed from the same political party. Re-appointment at the expiration of their terms is the usual rule, and it is not unusual for Commissioners to be re-appointed even by an adverse political party.
It may well be predicted in all seriousness that with the growth and development of interstate motor and air traffic, the "fostering care" of these two new modes of transportation will be delegated by Congress to the laterstate Commerce Commission, and judging from past history, it is doubtful if the staff and their compensation will be increased in ratio to the responsibility.
As in practically all other federal offices and commissions, there is no requirement that the men appointed to the Interstate Commerce Commission shall have had any particular experience, ability, training, or general qualification for the work before them. Occasionally some Commissioner has had regulatory experience in some State Railroad Commission; most frequently the men appointed are lawyers; several may be classed as political economists; one of the members now on the staff was a business man; one who recently resigned was a railroad president. While political consideration comes before other qualification, this does not mean that only mediocre men are appointed to conduct this work. Indeed, occasionally men of outstanding national prominence have been appointed. The Commissioners are practically free from restraint, control, or appeal, except as regards the constitutionality of their acts. They may be removed from office by the President for inefficiency, neglect of duty, or malfeasance in office. It is pleasant to relate that such a duty has thus far been unnecessary. There seems to be a prevailing notion that a man trained in railroad work, operating, financial, or traffic, could not act as Commissioner without bias on the side of the carriers. This is unfortunate, and the Commission
in facing its multifarious tasks might well profit by having in its membership men skilled in the business which it regulates.
This vast business of interstate commerce is one of our greatest national industries. The regulation of this industry, entrusted to these eleven Commissioners by reason of the interstate commerce act, goes not only to railroads, but to all common carriers, including the transmission of intelligence by wire and wireless, transportation by oil pipe lines, and tranportation partly by railroad and partly by water when both are used under a common control. There is scarcely a detail of operation, financing, or management now left entirely within the discretion of the railroads themselves. Even the relations with their emploves, while not under the jurisdiction of the Commission, are entrusted to another regulating body, the Railroad Labor Board.
The fact that no scandal has ever attached to any member of the Commission during its entire existence, and the further fact that the members of the Commission untiringly devote their time and energy to their work in an effort to keep abreast of it, has led many commentators to the view that the public has very great confidence in its judgment, and that it is for that reason Congress has so greatly amplified the powers of the Commission. It may be suggested with all respect due to the Commission that another factor in the situation is the average mortal's aversion to follow closely any matter which requires him to think and this is more especially true in the realm of mathematical or technical terms. So, when Congress in 1887, came along with a panacea for railroad evils in the form of a federal commission empowered to remove cause for complaint, and to cure the evils complained of in the future, the public rested its case, and with an occasional exception, it has been resting ever since.
The average layman has little conception of the tremendous responsibilities entrusted to, and the power exercised by, these eleven men. To briefly detail the duties and functions of this Commission in the last Congressional Directory occupies seven very closely printed pages. There is probably no tribunal in the world with greater power and responsibility concerning the industrial life and pub
.41 Stat. L. 469.