There you give the express authority to this commission to limit it, and the commission is bound under the act to limit it from the same point of departure, and can not exercise the discretion mentioned by the Senator to extend it to other points. You limit it there, and you expressly provide for discrimination for a shorter over a longer haul.

Mr. SPOONER. The Senator misapprehends my question, and therefore does not answer it. The proposition which I make is that the clauses I have read, although nothing more than declaratory of the common law, will, if rigidly enforced, guard against almost every conceivable just complaint to which the Senator from West Virginia alludes. Mr. CAMDEN. Will the Senator allow me to ask him a question? Mr. SPOONER.

Certainly.

Mr. CAMDEN. If the Senator is willing that these discriminations shall be provided for and claims that they are provided for in the bill, why does he object to making it plain and simple by allowing the provision to be inserted in the fourth section?

Mr. SPOONER. I will come to that. The Senator does not apprehend my position. I freely admit that in this country the commonlaw duty of the carrier has been greatly disregarded. I admit that the enactment by Legislature after Legislature of the common law upon the subject, but leaving to the aggrieved citizen the duty of vindicating in the courts his common-law rights, has been utterly futile as a shield against wrong by the carrier.

And if the committee had been content with simply incorporating in the bill, as they have done in very perfect language, the safeguards which the common law throws around the shipper, you might as well write the words of these clauses in the sand, within the tide line, expecting to find them there next year, as to write them in the statute expecting them to be any protection to the citizen; or, as Rufus Choate once beautifully said in this Chamber, "You were as wisely employed in writing them upon the clouds of the summer evening's western sky, in the dream of seeing them carried around the world in the train of the next day's sun, as to write them in a statute depending upon their enforcement at the suit of the citizen who is injured by their violation." The explanation of the utter inefficiency of the common-law duty and liability of the carrier as a protection to the people is familiar to every Senator. The grievances of the individual shipper are as a rule, each considered by itself, trifling in amount, and the citizen has in almost every instance been reluctant to engage in a litigation with a railway corporation to vindicate, for so small a sum, his rights under the common law or under statutes simply declaratory of the common law. Under the practice laws of the States the railway corporations have been enabled, and they have not been slow to avail themselves of the right, to protract such litigation by continuances, appeals, and otherwise, thereby rendering it burdensome and expensive. The sum involved being small, even success at the end of a long litigation was to the complainant defeat.

There has been another reason more potent still: Few shippers have dared to venture upon a litigation with a railway corporation in order to invoke in the courts the common-law protection. Why? Because the railway company, through its freight agents, through its system of rebates, through its power of discrimination, through its absolute dominion over the business of a place and over the business of its people, has had it in it its power-I will venture to say sometimes exercised-to visit condign and swift punishment upon men who dared to

invoke the protection of the courts to secure them in the enjoyment of the rights vouchsafed by the common law or statutes merely declaratory. Not only because of the expense, not only because of the delay, but because of their absolute fear of ruin in their business by favoritism, by discrimination in numberless ways, few men have dared to embark in that litigation with a railway company.

Under such circumstances it is not surprising, and the fact has been within the observation of every Senator, that in the great mass of instances the common-law remedy of the citizen has been unavailing, and the carrier has gone exempt from the performance of its common-law duty. So that if these clauses stood alone in the bill, apart from the peculiar provisions for their enforcement, I should not hesitate to denounce them as idle words. But the bill goes beyond that. The bill puts strength and virility into the common-law principles for the protection of the shipper. How? It puts the whole strength and power of the United States behind them.

It provides that any man and any community whose rights are trenched upon by the violation of either of these provisions may complain to the board of commissioners. It is made the duty of the commissioners to investigate it, upon notice to the railway company guilty of the alleged violation of law. It is made the duty of the commission to make a report upon it, to give to the complainants a copy of that report, to notify the railway company, which must comply with the decision of the commission within a certain time, and if the railway company is recalcitrant, unwilling to yield obedience to the decision of the commission, what then? The citizen whose rights have been trenched upon is not remitted to his common-law remedyhe is not told to bring his litigation in the courts; not at all; but the decision of the commissioners arrived at upon a thorough investigation, with plenary power to examine witnesses and to look at the records and papers of the company bearing upon the question, is sent to the district attorney of the United States. No matter whether it be a case of extortion, of unjust charges at a local station, or of discrimination against a local station, whether in favor of a competitive point or otherwise, it is made the duty of the district attorney to commence the suit against the offending railway company.

Not only that, but the burden of proof is changed by this law, and I think it is wisely changed. The bill provides that the report of the commission shall be prima facie evidence against the railway company and in favor of the shipper who has made the complaint. The bill goes beyond that in providing for the enforcement by the Government of the United States of the common-law duty of the carrier. It provides that if the railway company is defeated it shall pay the costs of the prosecution, including the witness fees, the costs of the complainant, and the fee to the district attorney, and if perchance the railway company should be successful, the United States pays the expense of the suit. The shipper whose common-law right is thus sought to be vindicated by the Government of the United States under the bill is not in any contingency obliged to put into operation the machinery of the law except by complaining to the commission, or obliged in any contingency to pay the expense of the litigation.

Do you tell me that the common-law provisions incorporated in the bill, backed by the power of the Government, relieving the citizen from the responsibility of litigation and from its cost, constitute no shield against extortion and discrimination? If incorporated into law it will

be a new feature of the law of this country. I am not willing yet to believe that a commission created by Congress, in the exercise of its constitutional power, clothed with this great authority, will not be able if they are honest and faithful men, as I have no doubt they will be, to enforce the common-law principles in favor of the shipper and in favor of localities so as to do away as far as it can be done with the discrimination of which my friend from West Virginia complains. It is not fair to the committee, it is not fair to this bill that Senators shall ignore as a means of protection such virile and vigorous provisions of law as are those I have read with the power of the Government behind them. That is not all.

The bill in another section strikes at the root, strikes at the heart of a fruitful source of discrimination and outrage by the carriers of this country, both in State and interstate commerce. I call the attention of the Senate to the language of section 2, and the section is carefully drawn; it seems to me almost perfect in its language:

That if any common carrier shall, directly or indirectly, by any special rate, rebate, drawback, or other device, charge, demand, collect, or receive from any person or persons a greater or less compensation for any service rendered, or to be rendered, in the transportation of passengers or property, subject to the provisions of this act, than it charges, demands, collects, or receives from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.

Any violation of this prohibition against rebates comes under the penalty section of the bill and in addition to that is given a large claim for damages, which is to be enforced at the expense of the Government and by means of the Government officials to whom I referred a moment ago.

This leaves room for special rates wherever special rates are fair. And every man who knows anything about the transportation business knows that there are circumstances under which special rates are fair and just. That section as it is drawn, to my mind, strikes as perfectly as language can against that great curse of transportation wherever it exists-mere favoritism. Every Senator here knows that it is in the power of railroad corporations, a power sometimes exercised, I think, to build up by favoritism one business at the expense of another in the same community. It is in their power to make one man prosper, and to bring to another man engaged in the same business in the same place ruin.

This provision, if it becomes a law, takes away from the railroad corporation that power of favoritism. I have never yet been able to see any possible, conceivable defense for the exercise by railway companies of such a power. I have never been able to see any reason for inequality in service by railway corporations of people situated in the same community engaged in the same business. There is to my mind no defense for it whatever.

The railway company derives its right to live from the State. It is clothed with peculiar powers. It can run its locomotives along the streets; it can cross the highways; it scatters fire in every direction without any liability, no matter what injury is done, if it only exercises due diligence. It is clothed with the supreme right of the people to take your property at a price to be fixed by some one other than yourself and against your will. It is necessary that railway companies should possess this power, and I think they generally pay for the property they take all that it is worth, and perhaps more than it is worth; but they may

take property the value of which to the owner is not reducible to the standard of the dollar.

There is little property that I know of beyond the reach of condemnation by the railway corporations under the laws of the country where it is necessary that they should take it. They may take your home, "the dearest spot on earth" to you, in which center the tenderest memories of your life, around whose hearth brothers and sisters now scattered and gone used to gather, from under whose roof perhaps you carried your father and mother to graves under the tree which he planted and tended in his early manhood. They have a right to take this from you, and they must be clothed with the power of taking it, because otherwise the great public interest could not be subserved.

But, sir, no corporation clothed in the public interest by the public with such powers as these ought to be permitted to use the franchise of the carrier to favor in the distribution of its service persons or firms or locality, or to discriminate against persons or firms or locality. The old formula that "equality is equity" is as wise for the government of the carrier as it is for the guidance of the chancellor. I think this section, drawn as it is against rebates, against special rates, against favoritism, will be one of great practical importance to the people of this country, and will greatly tend to correct the discriminations of which the Senator from West Virginia and the Senator from Michigan [Mr. CONGER] complain.

This power to give rebates and special rates and other discriminative privileges has been, in the hands of the general freight agent and the general manager of the railway corporation, a ready and often-used instrument, ample in various ways, and productive of the rate wars which have been for the last few years almost the rule in this country between contending and competing corporations.

There has been, if I may be permitted to so remark, too much personality or individuality in the railway management of the country. I was told by a distinguished gentleman connected with a great railway, a man whose name is a guarantee for the accuracy and truthfulness of what he says, that within the last few years he knew of an instance where a single remark from a railway president over a glass of wine at a hotel table brought on a war of rates which cost $5,000,000 of revenues before it was ended. No man can calculate the cost and the loss which it brought to shippers and to the people in the region which that railway traversed.

These constant rate wars have brought into the business, as every one who hears me knows, that most dangerous of all elements to business prosperity, the element of uncertainty. No man who has had anything to buy knew what he ought to pay, because he could not know from day to day what the rate of carriage would be. No man who has had anything to sell knew what he ought to ask for it, for he could not know from day to day what the rate of carriage would be. It may easily happen at such a time that two merchants, doing business at the same point, might buy of the same firm, at the same prices, a large stock of goods, one paying the current rate for transporting them to his place of business, the other having the unfair advantage within a fortnight of a rate war, which would enable him to sell his stock at prices which, while giving him a handsome profit, would ruin his neighbor. That is not what can be called healthy competition, no more than the flush of fever is the ruddy glow of health. A condition of affairs which leads great railway corporations to carry freight and passengers for less than

it costs is not only destructive to the interests of the stockholders, but is destructive, in a palpable way, of the interests and business of the people

I think this provision, and the tendency it will have to prevent rate wars, to take it out of the hands of freight agents to cut under each other will tend to the steadiness of rates and to the benefit of the people in every way; will tend to restore what the Senator from Iowa [Mr. WILSON] Some years ago remarked in a speech upon the subject in the Senate as a great railway evil in this country, the decadence of good faith in the compacts as to rates, &c., of railway companies with each other.

There is another section of this bill which provides for publicity of rates. That is new in this country. It provides not only for publicity of rates-and it is a step in the right direction, and a long, strong step, too-but it provides that railroad companies shall not, having published their rates, without notice increase them. Railway companies will be very slow to enter upon rate wars, they will be very slow to bring disorder and uncertainty into the business of the country by reducing their rates below what is right and fair and just to stockholders and to the people, if they are prohibited from putting their rates back again at will.

This committee has stricken out of the bill a provision which was in it when it was first introduced, and which, with a qualification proposed by the Senator from New Jersey [Mr. SEWELL], I think should be put back into the bill, and that is that the railroad companies shall not be permitted to lower their rates either without a shorter notice. The qualification to which I refer was that they might lower their rates without notice where it was necessary to meet competition by water or by a carrier not reached by the provisions of this bill and beyond the jurisdiction of the Federal authorities. I think the provision requiring publicity of rates. properly guarded, will be an advantage and a great advantage to the people. It will help the people to know whether rebates and special rates are being allowed in violation of the law. It will stimulate the watchfulness of the people. It will make much more easy of enforcement all the other provisions of this act, and it will, as I said before, tend very strongly to prevent the frequent recurrence of rate wars. Am I wrong in saving that the Senator from West Virginia and the Senator from Maryland underestimate the value of this provision, together with the other provisions of this bill to which I have referred, as a means of protection against the outrages of which they complain?

Now, sir, some suggestions directly upon the amendment offered by the Senator from West Virginia [Mr. CAMDEN] and I have done.

The Senator from Michigan [Mr. CONGER], for whom I entertain the profoundest respect in every way, who is one of the few Senators whom I had the honor to know before I became a member of this body, in his remarks the other day on this clause rather seemed to imply that any one who was opposed to this short-haul and long-haul provision must be classified as a railroad representative upon this floor. No man must put me, in my advocacy of this bill or my opposition to this amendment, in that category. Mr. President, I may be wrong about it but I think that the short-haul and long-haul provision, which the Senator from West Virginia is so partial to, would be in the interest of railway companies, and I think it would result in largely increased revenue to railway companies. I am not able to see that it would be unjust to the