ing carriers and shippers would know nothing about this arrangement. The freight would be shipped at the new lower rate, and then there would be a restoration of the old rate. The law of to-day would be fairly satisfactory to all shippers if the spirit of fairness required by it had controlled the conduct of the carriers, and the necessity for the proposed legislation is the result of and is made necessary by the misconduct of parties who are now most clamorous against additional restraint. If the carriers had in good faith accepted existing statutes and obeyed them there would have been no necessity for increasing the powers of the Commission or the enactment of new coercive measures."

§ 81. Installation of private switches.

Several new provisions in this 1906 legislation were directed against certain abuses which had fostered monopolies. The original Act had left it possible for a railroad to serve a favored shipper by making connection with his private switch and refusing a similar connection to another shipper. By a provision in section 1 of the Hepburn Act, it was provided that any common carrier subject to the provisions of the Act upon application of any lateral, branch line of railroad, or of any shipper tendering interstate traffic for transportation, shall construct, maintain, and operate upon reasonable terms a switch connection with any such lateral, branch line of railroad, or private side track which may be constructed to connect with its railroad, where such connection is reasonably practicable and can be put in with safety and will furnish sufficient business to justify the construction and maintenance of the same; and shall furnish cars for the movement of such traffic to the best of its ability without discrimination in favor of or against any such shipper. In case the carrier refused upon application, to make or operate such connection, an appeal for the issuance of an order was allowed to the Commission for any shipper aggrieved by a refusal;

it was not until the Mann Act, after the omission had been pointed out by the Supreme Court, that the owner of the lateral line was also given the right to go to the Commission for an order for installation of a switch.

§ 82. Regulation of private facilities.

One of the most galling monopolies established by action of the railroads and permissible under the original act, was that of the private car. For example, a few great corporations, by contract with the railroads, established a monopoly of the supply of refrigerator cars for the carriage of perishable fruit; and a similar, and hardly less far-reaching monopoly was created in tank cars. The evil of the private car line was felt in two directions: first, the charge to ordinary shippers using the cars was increased by monopolistic rates; second, the charge to the owners of the cars was greatly lessened by rebates for the use of the cars. In the first section of the Hepburn Act it was provided that the term "transportation" shall include cars and other vehicles and all instrumentalities and facilities of shipment or carriage, irrespective of ownership or of contract, express or implied, for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported; and it shall be the duty of every carrier subject to the provisions of this Act to provide and furnish such transportation upon reasonable request therefor, and to establish just and reasonable rates applicable thereto. In a later section it was further provided that if the owner of property transported, directly or indirectly, render any service connected with such transportation, or furnishes any instrumentality used therein, the charge and allowance therefor shall be no more than is just and reasonable, and the Commission may, after hearing on a complaint, determine what is a reasonable charge as the maximum to be paid by the carrier or carriers for the service so rendered

or for the use of the instrumentality so furnished, and fix the same by appropriate order.

§ 83. Power to fix maximum rates.

The most important feature of the 1906 Amendment was that giving the Commission the power to fix maximum rates. The fixing of maximum rates already had not been uncommon in the States; and in other countries it had been usual, if not universal. In England, maximum rates were fixed, not by the Railway and Canal Commission, but by the Board of Trade, one of the executive departments of the government, after due hearing; and the rates thus fixed were enacted in the form of statute by Parliament, after an opportunity for hearing before a committee. The provisions of the Hepburn Act which are still in force were that upon complaint the Commission, after hearing, shall determine a reasonable maximum rate, which shall take effect at such time after thirty days as may be fixed by the Commission, and shall continue in force not more than two years, unless suspended or set aside by the Commission or the courts. The carrier aggrieved may appeal to the courts for an injunction against the rate so fixed; but no injunction or interlocutory order shall be issued without a hearing after five days' notice to the Commission. An appeal from the Circuit Court lies directly to the Supreme Court, and preference is given to such cases. No change in rates, even within this maximum, shall be made by the carriers until after thirty days' notice, unless this period is shortened by the Commission.

§ 84. Ordering through routes and rates.

The English acts gave to the Railway and Canal Commission power to establish through routes and to Parliament, on recommendation of the Board of Trade, power to establish through rates whenever this course was required, in order to create reasonable facilities; but this power was not included in the original Interstate Commerce Act.

The Interstate Commerce Commission had often recommended that the power be granted, and this was done in the Hepburn Act. In section 1 of the new Act, it was made the duty of every carrier subject to the provisions of the Act to establish through routes and just and reasonable rates applicable thereto. In section 15 of the Act it was provided that the Commission may, after hearing on a complaint, establish through routes and joint rates as the maximum to be charged and prescribe the division of such rates, and the terms and conditions under which such through routes shall be operated, when that may be necessary to give effect to any provision of the Act, and the carriers complained of have refused or neglected to voluntarily establish such through routes and joint rates, provided no reasonable or satisfactory through route existed.

§ 85. The problem of the industrial railways.

Another matter, which was even at that time being considered as leading to abuses which ought to be brought within the power of the Commission to remedy, was the matter of the industrial railways. These are short lines of railway, owned in some connection with the industries which they were primarily designed to serve; either the corporation owning the industry owns the railroad, or its ownership is vested in those who are prominent in it. These railroads are usually operated in pretense at least as common carriers, however improbable it may be that anyone else will want to ship over them. And posing as connecting carriers they have always been accustomed to see that they got a good division as originating carriers out of the joint rate. But if this tap line really is a common carrier although the public resorting to it is small, there would seem to be no way to prevent this; but even so the Commission could be given power to pass upon the propriety of the division. If, however, it is really a plant facility it should not have any such standing whatsoever to

get what would virtually be a rebate, if it went beyond a switching allowance, duly sanctioned by the Commission and made to all shippers furnishing such facilities. It will be seen, therefore, that by getting powers over divisions and allowances the Commission in 1906 got a measure of control over the situation as a whole.

Topic E. The Elaboration of its Powers

§ 86. The Mann Act of 1910.

By the Mann Act of 1910 a number of amendments of great importance were made to the Act to Regulate Commerce, whereby the jurisdiction of the Commission was extended into new fields and its powers over the companies subject to its jurisdiction strengthened. Telephone and telegraph companies, whether wire or wireless, were put under the power of the Commission so far as Congress could constitutionally extend jurisdiction. The fourth section of the Act relating to the long and short haul was changed so as to put an end to the controversy. The power over through rates was made positive, the whole matter belonging to the Commission subject to certain provisos. The power of the Commission over rates and schedules was made more extensive. In particular the Commission was given power to suspend advances in rates pending investigation thereof. There were other amendments of less importance, such as change in the requirements as to annual reports and further powers over accounts consequent thereon.

§ 87. The new long and short haul clause.

The controversy which began a generation ago as to the true meaning of the long and short haul clause was finally settled by this legislation by cutting out the clause concerning similar circumstances and conditions, by virtue of which the courts had practically nullified the statute, and unequivocally making it unlawful for any common carrier subject to the provisions of this Act to charge or