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to defeat the fundamental principle upon which the law of common carriers was established."
This fundamental principle, referred to by Mr. Justice BROWN, is, that every common carrier, by reason of the nature of his employment, is liable to the shipper for every misfortune, save only the act of God, and the public enemy. The carrier can not relieve himself from such liability unless by an express contract based upon a valuable consideration moving to the shipper. A bill of lading is a uni-lateral contract, and in maritime law differs materially from a charter party, which is in the nature of a lease of the vessel and must be signed by both parties.
Under the Harter Act, above referred to, clauses in bills of lading given by the manager, agent, master, or owner of any vessel transporting merchandise or property from or between ports of the United States and foreign ports, purporting to relieve the carrier from liability from negligence are prohibited. In like manner also, carriers are forbidden to insert clauses in bills of lading purporting to relieve them from liability for failure "to exercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy, and capable of performing her intended voyage," or to relieve from liability for failure “to carefully handle and stow her cargo, and to care for and properly deliver same." The Harter Act, section 3, also limits the liability of carriers transporting merchandise to or from ports in the United States, as follows:
"That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the inherent defect, quality, or vice of the thing carried, or from insuffi
ciency of package or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service."
Failure to restore the imprisonment penalty, as it existed originally in the Commerce Act, constitutes also, a notable defect in the legislation of 1906.
The efficiency of the act was greatly impaired by abolishing this penalty. This was accomplished by the Elkins Act, approved February 19, 1903, which declared that "no penalty shall be imposed on the convicted party other than the fine prescribed by law; imprisonment, wherever now prescribed as part of the penalty being hereby abolished." This provision was made expressly applicable to the Commerce Act, to which the Elkins Act was a supplement, and rendered the Commerce Act practically harmless. The latter act, as originally passed, made imprisonment the penalty for any and every violation of its provisions. Section 6 of the act declared that a writ of mandamus should issue to compel the carrier to file schedules of its rates and tariffs, and provided that failure to comply with the writ might be punished as a contempt of court. Under contempt proceedings the court has power to imprison the offender as part of the penalty imposed. Section 10 declared that any one guilty of "an unlawful discrimination in rates, fares, or charges for the transportation of passengers or property" should be liable to imprisonment in addition to the fine prescribed, for a term not exceeding two years, or to both fine and imprisonment, in the discretion of the court. Section 10 further provided that any one guilty of aiding a shipper to obtain transportation for property at less than the published rate, which was declared to be the only legal rate, "by means of false billing, false classification, false weighing, or false report of weight, or by any other device or means," was guilty of a misdemeanor,
punishable by either fine or imprisonment, or by both fine and imprisonment, in the discretion of the court.
These penal provisions rendered the Commerce Act available as a partial remedy for the evils it was designed to correct, notwithstanding the many difficulties attending its enforcement. But when these penalties, which would deprive the offender of liberty, were eliminated, the act became of practically little value. Convictions under it were rare and the cash fine for which the offender became liable, in case he was obliged to pay, still left large profits to the credit of the trusts and combinations who succeeded in getting rates which destroyed competition and eliminated the competitor as a rival in the commercial world.
IMPRISONMENT PENALTY FOR REBATING.
The imprisonment penalty has not been restored by the Act of June 29, 1906, except in so far as relates to the crime of rebating. One who knowingly accepts or receives any "rebate, concession, or discrimination" may, in addition to the fine imposed, be punished by imprisonment in the penitentiary for a term of two years, or by both fine and imprisonment, in the discretion of the court. To this extent the punishment by imprisonment has been incorporated in the Elkins Act, and restored to the Commerce Act. The language of the amendment in this regard, however, is so framed that it will be impossible to make it applicable to false billing, false classification, false weighing, or false reports of weight, or for failure on the part of the carrier to comply with the provisions relating to filing and posting schedules of rates and tariffs, and keeping the same posted; or for giving free passes, or free transportation. In this connection the conclusion is warranted that it was not the intention of Congress to restore the imprisonment penalty to the Commerce Act, and to incorporate such penalty in the Elkins Act. The argument is unanswerable that, if such had been the intention of the Legislature, it would have simply re-enacted section 10 of
the Commerce Act to read as it was enacted originally, in addition to the amendment of section 1 of the Elkins Act, and also to have declared that failure to comply with the requirements of a writ of mandamus, should be punishable as for a contempt of court.
The court, doubtless, has power to impose such remedy where a mandamus issues, as the writ is a direct mandate issued by the court. But no question on this point could possibly arise had the original provisions of the statute been restored.
RAILWAYS NOT TO ENGAGE IN BUSINESS.
The legislation which declares that railroad companies, after May 1, 1908, shall cease to mine and sell coal or any other commodity manufactured, mined, or produced by the carrier, or under its authority, or in which it may own, in whole or in part, or in any way have any interest, direct or indirect, other than timber and the manufactured products thereof, will create a commercial revolution. It means that the carrier may, perhaps, remain in the lumber business in addition to performing its public duties as carrier, but other commercial enterprises of every nature can no longer be lawfully carried on by them. Congress, in enacting this legislation, assumed that sound public policy required that the carrier must give its undivided attention to the performance of those public duties which it is chartered to perform. If the carrier should be permitted to engage in any private business, as a manufacturer and dealer in commodities, which commodities it must also carry, it must compete with its own customers, who are obliged to patronize it as shippers. It is obvious that the carrier cannot, as a dealer, enter into successful competition with its shippers, who are also dealers, without discriminating against them in the matter of rates and in furnishing facilities for transportation. The public duty of the carrier, comes directly in conflict with the private interest of the carrier in its capacity as dealer. The public duty and the private interest are incompatible and repugnant to each other. Both relations cannot be sustained simultaneously by the carrier. Either the public duty must yield
CARRIER NOT TO BE DEALER.
to private interest, or there can be no successful competition, in this regard, with rivals in the same line of business.
When the carrier is also a dealer, the fact that it carries its own goods in competition with those shipped by a competitor would ordinarily be prima facie evidence that discrimination has been practiced against the rival, because the carrier has the absolute power to transport its goods at actual cost of freightage.
The result of the practice of carriers engaging also in private business, which does not involve a public duty, has resulted in creating monopolies, giving them control of many commodities, notably of oil, beef, sugar, coffee, salt, iron ore, and coal. In the States of Pennsylvania and West Virginia the carriers are engaged in mining and shipping coal, and are the principal dealers in that commodity. In Pennsylvania they have conducted this business in defiance of the Constitution of the State, which expressly forbids the carrier to engage in the business of mining and selling that commodity, or engaging in any business other than that for which it was chartered. The provisions of the Constitution, adopted in 1874, in this regard, are as follows:
"No incorporation company doing the business of a common carrier shall, directly or indirectly, prosecute or engage in mining or manufacturing articles for transportation over its works; nor shall such company, directly or indirectly, engage in any other business than that of common carrier, or hold or acquire lands, freehold or leasehold, directly or indirectly, except such as shall be necessary for carrying on its business; but any mining or manufacturing company may carry the products of its mines and manufacturies on its railroad or canal, not exceeding fifty miles in length." Const., Art. 17, § 5.
"No corporation shall engage in any business other than that expressly authorized in its charter, nor shall it take and hold any real estate except such as may be necessary and proper for its legitimate business." Const., Art. 16, § 5.
But notwithstanding this constitutional prohibition the railroads which penetrate the coal regions of Pennsylvania, control the business and fix the price, from time to time, of that prime necessity of life.