difference is necessary for the purpose of securing in the interests of the public the traffic in respect of which it is made; provided no difference shall be made in the treatment of home and foreign merchandise. The Commissioners have power to direct that no higher charge shall be made to any person for services in respect of merchandise carried over a less distance than is made to any other person for similar services in respect of the like description and quantity of merchandise carried over a greater distance on the same line of railway; but group rates are permitted. Provisions are made for posting the tariff sheet at stations; for complaints to the Board of Trade; for filing returns; and for the Board of Trade making rules and regulations.

§ 57. Increase by later amendments.

Six years later, by an amendment, 13 it was provided that if a railway increased its rates, and a shipper filed a complaint with the Commission, the complainant (unless otherwise ordered by the Commission) need pay at the outset no more than the old rate; and the burden is on the railway to justify the increase. In 1904 it was provided further 14 that the reasonable facilities required by the Railway and Canal Traffic Act shall include reasonable facilities for the junction of private sidings or private branch railways with the main line, and reasonable facilities for receiving, forwarding and delivering traffic upon and from those sidings or private branch railways. The most important legislation since that time would seem to be the Railway Companies Accounts and Returns Act of 1911.15 That Act provided most elaborately for the system of accounts to be kept by corporations under the supervision of the Commission. There are schedules annexed to the Act with the elaboration of detail characteristic of English legislation setting forth the various

13 57 & 58 Vict. c. 54.

14 4 Edw. 7, c. 19.

151 & 2 Geo. 5, c. 34.

forms to be followed by the companies, both as to the accounts which they should keep and the returns which they must make.

§ 58. Influence of English legislation.

It will be noted at various points throughout this book that there has been an interchange of ideas between England and America concerning the exercise of the powers of regulation over railroads. The Interstate Commerce Act of 1887, in its substantive provisions in the earlier sections, particularly those relating to undue or unreasonable preference, or advantage in the treatment of shippers or traffic, is plainly modeled upon the Railway and Canal Traffic Act. That provision of the Hepburn Act giving the Commission power to require the connection of branch sidings with the main line had been anticipated by English legislation of a few years earlier. And the provision of the Mann Act to the effect that increases in rates could be suspended until passed upon by the commission-the burden of proof being upon the railroad to justify the advance-was also founded upon English legislation. On the other hand, the recent Act of Parliament relating to the making of reports and the keeping of accounts is related in character to provisions of the Act to Regulate Commerce of long standing.

§ 59. Authority of English decisions.

This fact, that several of the fundamental provisions of the Interstate Commerce Act have been founded upon the Railway and Canal Traffic Act, has had a consequence of importance in determining the interpretation which our courts have put upon these sections. Thus, the section of the Interstate Commerce Act, limiting the condemnation of rates described as discriminating to those charged under circumstances and conditions substantially similar, was so clearly founded upon the similar provision in the Railway and Canal Traffic Act, that the decisions of the

English courts as to the application of this proviso, which were in their reports at the time the Act to Regulate Commerce was passed, were, in accordance with the accepted canon of statutory construction, held to have been in the contemplation of the Congress when the Act was passed, to such an extent as to make these decisions governing. A late example. of this same doctrine is the case where it was decided that no difference could be made between shippers who had gathered together goods of others for shipment and other shippers, such forwarders having been held long before by the English courts to have rights not to be discriminated against when interpreting the similar provisions upon which the American Act was founded.

Topic B. Regulation in the States

§ 60. The Granger rate legislation.

Between 1870 and 1880 the western States began to pass stringent statutes for the regulation of railway charges. The railways running through this section were principally organized and owned in the eastern States, and the farmers of the west had become dissatisfied with the treatment they received, believing that the roads were managed exclusively in the interest of their eastern owners. The cruder legislation at the beginning of this period provided in the statute itself maximum rates for the carriage of freight. For instance, in the constitution of 1870 the Illinois legislature was given express power to establish reasonable maximum rates by railroads for the transportation of passengers and freight on the different railroads of the State. Meanwhile other difficulties were felt by the people beside that of excessive charges. The discrimination of railroads in favor of certain shippers came to be an industrial evil, and provisions were adopted in State after State forbidding such discrimination. Among the earliest was that contained in the constitution of Pennsylvania of 1873, in which it was provided that persons

and property should be transported without undue or unreasonable discrimination in charges or in facilities.

§ 61. Railroad commissions of former times.

The regulation of charges by direct legislation was found not to be a convenient or effective method; and as early as the period during the era of the construction of the original railroads there were commissions established by the legislatures from time to time to report upon certain phases of the problems which the railroads presented. Following the period of the Granger legislation with its more or less unfortunate results the States not long thereafter began establishing permanently commissions, which were given in several States the power to fix rates; and this movement for the establishment of railroad commissions eventually covered the entire country. Almost every State had a transportation commission, although the powers intrusted to it differed widely in the different States. The effectiveness of these commissions depended to a great extent upon the skill and ability with which they are administered, and the confidence felt in their decisions. The original commissions were established simply to investigate conditions and report to the legislature. Thus, until recently, the Massachusetts Commission had fundamentally no greater power than to make recommendations to the railroads, which if disobeyed, were more or less certain to result in specific action by the legislature. On the other hand, the Commissions of later origin, such as the Texas Commission, were given by the legislature not only the power to revise the rates established by the railroads, but to fix rates on its own initiative.

§ 62. Additions to their powers.

Later, more extensive powers over railroads were given to the various State commissions. It was realized that the attempt to regulate the railroads by laws passed from

time to time had broken down. Such legislative control was sporadic in its character, and scattering in its effect. It was so far without principles that it was continually being set aside by the courts, and yet it paid little attention to particular situations requiring special treatment. Altogether, it was at last appreciated that the problem of the regulation of railroads is more administrative than it is legislative. It is comparatively easy to say in general, from year to year, what in general is right to be done, but it is impossible to decree from day to day, just what in particular should be the service rendered. For a full generation now, it has generally agreed that the authority to give orders in particular cases, with power of the State behind it, should be given to the commission charged with supervision over the railroads. In States such as Mississippi, this power was early established, to be followed in the other States as they were willing to face the problem. In these States it will be noted the legislature went no further in delegation of its power, than to give the commission power to apply the principles laid down to particular cases, but in some States the legislature has gone to the extent of virtually abdicating its functions by giving to the commission power to lay down general obligations governing all carriers. A commission which has the power given to it as in Missouri of promulgating schedules to which all railroads must conform, is having powers given it which it seems should not properly be conferred.

§ 63. The modern public service commissions.

The powers of these railroad commissions of the earlier time had by 1900 gradually been extended over facilities connected with transportation, warehouses for example where the elevation of grain is a matter of importance. Then came a period, soon after 1900, when the importance of the transmission of intelligence by wire had become of such moment that jurisdiction over telephone companies was added to the powers of almost all of the railroad