On the other hand, shippers who are not of the favored class are afraid to complain for fear of persecution by delay of freight, overcharges, prolonged litigation of every difference or dispute, and probable intensification in some form of the discrimination in favor of their competitors. The Oregon Commission says: “The shipper preferred to tamely submit to the injustice put upon him through discriminations against him or unreasonable and extortionate charges and exactions for transportation facilities, than to hazard the utter ruin of his business by provoking the animosities of managers if he carried his grievances into the courts in order to have his rights determined and enforced.... Besides, if the shipper went to court with his grievances he was confronted by powerful and wealthy corporations who contested, with the aid of the ablest counsel money could procure, every inch of the ground in the controversy, thus making each contest between the individual shipper and these corporations an unequal one in proportion to the ability of the shipper personally to press his case as compared with the financial ability of the corporations.”[[363]] In a large majority of cases the loss sustained by the individual through favoritism or extortion is less than the probable injury resulting from litigation with powerful corporations employing the ablest counsel, contesting every inch of ground, defeating or delaying redress by every possible means, and squeezing the plaintiff meanwhile perhaps with a grip upon his business that means death to his prosperity, so that the shipper thinks it better to bear the ills he has than fly to others to which he has not been introduced.
CHAPTER XXXII.
REMEDIES.
Coming now to consider how railway favoritism may be abolished, we find a wide divergence among railroad men, law-makers, and other authorities. Some say that discriminations cannot be stopped,[[364]] others declare that they have been stopped,[[365]] others that present laws are ample and all that is needed is their enforcement,[[366]] while others state that present remedies are insufficient,[[367]] and suggest further legislation making the long and short haul clause binding except so far as relief is granted by order of the Interstate Commission;[[368]] extending the power of the Commission to private car-lines, fast freight and express companies, and water carriers;[[369]] giving it, or a national court, authority to fix reasonable rates in place of those which upon complaint and investigation it finds unreasonable,[[370]] and to declare that a rate resulting from any rebate or concession to favored shippers shall be open to all shippers;[[371]] specifically enacting that the payments for private cars and for switching shall not be greater than similar payments made by the railroads to each other;[[372]] legalizing combination and pooling;[[373]] forbidding railroad men to have any interest in any large producer of traffic on their lines;[[374]] requiring roads to make through routes and through rates with all connecting lines;[[375]] protecting our railroads against the competition of Canadian roads; providing for the public inspection of railroad books and accounts;[[376]] requiring that all railroad monies shall be received and paid out by Government officers;[[377]] or otherwise securing direct representation of the public in the management;[[378]] and establishing a sliding scale of taxation to apply in inverse ratio to the fairness and openness of the railway administration, so that a railroad opening its books freely to inspection and treating all fairly and impartially would pay low taxes, while a railroad acting on opposite principles would be taxed at a high rate.[[379]] The enactment of the Commerce Act by all the States and territories so that the State and Federal laws may be in harmony, and State and national commissions can co-operate in shutting out discrimination from local and through traffic,[[380]] is also suggested. Another view is that only public ownership of the railroads under thorough civil service regulations can eliminate either the motives or the power to discriminate,—the antagonism of public and private interests being the tap-root of discrimination, it can be fully overcome only by pulling up the root and making railroad managers the agents of the public to run the roads for the public service instead of being the agents of private interests to operate the roads for private profit.
In his message of December, 1904, President Roosevelt urged Congress to give the Interstate Commission power “to revise rates and regulations, the revised rate to go into effect at once and to stay in effect, unless and until the court of review reverses it.” He laid especial emphasis upon the necessity of stopping rebates and unjust discriminations, saying: “Above all else, we must strive to keep the highways of commerce open to all on equal terms; and to do this it is necessary to put a complete stop to all rebates.” In his message of December, 1905, the President alters his recommendation to the granting of power to fix a “maximum reasonable rate, the decision to go into effect within a reasonable time and to obtain from thence onward, subject to review by the courts.” In case a “favorite shipper is given too low a rate,” the President says, “the Commission would have the right to fix this already established minimum rate as the maximum; and it would need only one or two such decisions by the Commission to cure railroad companies of the practice of giving improper minimum rates.” (See below, recommendations of the New York Board of Trade, from which, perhaps, the President took this suggestion.)
The President says the law should make it clear that unfair commissions and fictitious damages, free passes, reduced passenger rates and payments of brokerage, are illegal; and that it might be wise “to confer on the Government the right of civil action against the beneficiary of a rebate for at least twice the value of the rebate; this would help stop what is really blackmail. Elevator allowances should also be stopped.
“All private car-lines, industrial roads, refrigerator charges, and the like should be expressly put under the supervision of the Interstate Commission or some similar body.... Neither private cars nor industrial railroads, nor spur-tracks should be utilized as devices for securing preferential rates. A rebate in icing charges or in mileage or in a division of the rate for refrigerating charges is just as pernicious as a rebate in any other way.... No lower rate should apply on goods imported than actually obtains on domestic goods from the American seaboard to destination except in cases where water competition is the controlling influence.
“There should be publicity of the accounts of common carriers.... Books or memoranda should be open to the inspection of the Government.
“The best possible regulation of rates would, of course, be that regulation secured by honest agreement among the railroads themselves to carry out the law.... The power vested in the Government to put a stop to agreements to the detriment of the public should, in my judgment, be accompanied by power to permit, under specified conditions and careful supervision, agreements clearly in the interest of the public.... But the vitally important power is the power to fix a given maximum rate, which, after the lapse of a reasonable time, goes into full effect, subject to review by the courts.”
The President further says: “I urge upon the Congress the need of providing for expeditious action.... The history of the cases litigated under the present commerce act shows that its efficacy has been to a great degree destroyed by the weapon of delay, almost the most formidable weapon in the hands of those whose purpose it is to violate the law.”
A summary of the principal provisions in some of the rate bills that have been brought before Congress will illustrate the various methods proposed for the better control of railroads. The Dolliver Bill provides that, when the Interstate Commerce Commission, after full hearing upon complaint, is of the opinion that a rate is unjust, unreasonable, or unduly discriminatory, it shall fix a just and reasonable maximum rate to go into effect 30 days after notice. The power applies to joint rates, fares, and charges, as well as to those within a railroad system. Broad provision is also made to cover the fixing of mileage rates, car rentals, etc. The Commission may order a carrier to cease and desist from any regulation and practice found to be unjust, unreasonable, or unduly discriminatory. All orders are to go into effect 30 days after notice unless the Commission extends the time to 60 days, or the order has been suspended or modified either by the Commission or by decree of a competent court. A penalty of $5,000 for each day an order is disobeyed, and for each separate offence, is provided for against any carrier, officer, representative, or agent who knowingly fails or neglects to obey any order as aforesaid; and the Commission may also apply to the Circuit Court for injunction, or other proper process, to compel obedience. Appeal may be taken to the Supreme Court. Railroads must give 10 days’ public notice of advances in rates, and 3 days’ notice of reductions, but the Commission may in its discretion allow changes on less notice.