Provided further, That at any time prior to the expiration of the notice herein required to be given of a proposed increase of rates, fares, or charges, or of joint rates, fares, or charges, any shipper or any number of shippers, jointly or severally, may file with the commission a protest, in writing, against the proposed increase in whole or in part, stating succinctly the grounds of his or their objections to the proposed change. The filing of such protest shall operate to continue in force the then existing rate or rates, fare or fares, charge or charges, proposed to be changed and protested against as aforesaid, until the reasonableness of the rate or rates, fare or fares, charge or charges, proposed to be substituted shall have been determined by the commission. Upon the filing of such protest, a copy thereof shall be mailed by the Secretary of the commission to the carrier or carriers proposing the change and thereafter the commission shall proceed to hear and determine the matter in all respects as it is required to do by sections thirteen and fifteen of this act, in case of a complaint made because of anything done or omitted to be done by any common carrier, as provided in said section thirteen; but throughout the proceeding, the burden of proof shall be on the carrier proposing the change to show that the rate, fare or charge proposed to be substituted is just and reasonable.
An amendment was offered in the committee which would modify the original proposition of the amendment, by leaving it to the discretion of the Interstate Commerce Commission, upon the filing of a protest against the proposed increase of rates, to determine whether the schedule filed should go into effect at the end of thirty days or should be suspended by order of the commission until after final hearing, upon the question as to whether the advance was reasonable.
This proposed amendment to the amendment of the 6th section, although somewhat modifying its effect, did not alter the principle upon which the original amendment rested, or remove the objections that influenced the committee in reporting the bill adversely. The reasons which control the action of the committee may be briefly stated as follows:
REVIEW OF QUESTION BEFORE COMMITTEE.
1. From 1887 Congress, by the act then passed "to regulate commerce" through all of its amendments to that act, including the act of June 29, 1906 (which was passed after the most elaborate investigation of the entire subject and the fullest debate), has adhered to a fixed policy in its legislation upon this subject. It has declared its constitutional right to regulate the transportation of persons and property in interstate and foreign commerce, while, at the same time, it has recognized the right of the owners of the instrumentalities of commerce to control and manage their properties subject to the supervision and limitation imposed by the regulating statute, that the charges, fares and rates must be fair, just, and reasonable; that neither discrimination as to person or place must be found in the schedules; and that no device of any character should result in unlawful preference between shippers.
It has in all these acts recognized the right of the responsible managers of the transportation interests of the country to fix the rates for transportation, as upon its revenue must rest the efficiency of its service to the public and the value of its property to its holders, subject only to those wise limitations which prohibit the exercise of these property rights to the injury of the public. Congress has appreciated the magnitude of the vast interest affected by such legislation. With 230,000 miles of track, with millions of rates published in accordance with the statute, with changes of rates numbering between 600 and 700 a day, and reaching the enormous sum of 225,000 a year, it has, with the practical experience of twenty-two years, refused to take the initiation of rates from the carrier and impose it upon its administrative tribunal. Congress and the Supreme Court have adopted the construction of the act to regulate commerce, announced by Judge Jackson (Interstate Commerce Commission v. B. & O. R. R. Co., 43 Fed. Rep., 37, and affirmed, 145 U. S., 263):
Subject to the two leading prohibitions that their charges shall not be unjust or unreasonable, and that they shall not unjustly discriminate, so as to give undue preference or disadvantage to persons or traffic similarly circumstanced, the act to regulate commerce leaves common carriers as they were at the common law, free to make special contracts looking to the increase of their business, to classify their traffic, to adjust and apportion their rates so as to meet the necessities of commerce, same principles, which are regarded as sound, and adopted in other trades and pursuits.
This policy, we believe, has been approved by the country during that period. Pending the elaborate investigation of this subject prior to the passage of the act of June 29, 1906, no crystallized sentiment was manifested, either in the press or during the hearings, that indicated a public sentiment that this policy should be departed from. Since this bill has been before your committee no such public sentiment has been shown to exist by those who appeared before it.
The conferring upon the commission the power to suspend a rate advanced, either upon the filing of a protest by a shipper or in the discretion of the commission, taken in connection with the provision of the statute which gives to the commission the power to fix a rate and to designate the time, not longer than two years, that it should remain in force, would ultimately turn over to that administrative body the function of initiating the rates of the entire country. It would offer a premium to every shipper to enter a protest to the advance of rates, whether they were reasonable or unreasonable, even if discretion was vested in the commission. The protest, prepared by skilled attorneys, presenting a prima facie case of unreasonable advance of the rate, with no opportunity for an investigation before it must be acted upon, an official body, on which was imposed the responsibility to act would be constrained to suspend the rate until a final determination of the complaint.
The existing law permits any shipper to protest any rate that has gone into effect, the hearing on the protest is made without formal pleadings, and the commission is authorized then to determine the question whether the rate put in effect by the carrier was a reasonable rate or not, and, if not, to make the rate reasonable. So far, in the practical operation of the act of June 29, 1906, this provision of law has worked satisfactorily, and but comparatively few of the decisions of the commission have been contested by the carriers. Under existing law both parties are protected. If the decision is that the rate is unreasonable a judgment may be rendered in favor of the protestant for the difference between what the commissioners determine is a reasonable rate and the rate fixed by the carrier, with 6 per cent interest from the date of the overcharge. If, on the other hand, this amendment should receive the approval of Congress and the rate filed by the carrier should be protested and then suspended by the commission (in the multiplicity of duties imposed upon that tribunal), considerable time would elapse before a final determination of the question could be reached. During that period the carrier would be receiving only the old rate, and if the commission finally decided that the advance was reasonable no reparation in any way could be awarded.