be not more than two circuit judges, then before them and such district judge as they may select. In the event the judges sitting in such case shall be divided in opinion, the case shall be certified to the Supreme Court for review in like manner as if taken there by appeal as hereinafter provided.

SEC. 2. That in every suit in equity pending or hereafter brought in any circuit court of the United States under any of said Acts, wherein the United States is complainant, including cases submitted but not yet decided, an appeal from the final decree of the circuit court will lie only to the Supreme Court and must be taken within sixty days from the entry thereof: Provided, That in any case where an appeal may have been taken from the final decree of a circuit court to the circuit court of appeals before this Act takes effect, the case shall proceed to a final decree therein, and an appeal may be taken from such decree to the Supreme Court in the manner now provided by law.

Approved, February 11, 1903.

VIEWS OF THE COMMISSION ON THE ELKINS

LAW

February 27, 1903.

MR. PAUL MORTON, Vice President

A. T. & S. F. Ry. Co., Chicago, Ill.

DEAR SIR:

It has not been practicable to make earlier reply to your letters of 16th and 17th instant.

The Commission is always reluctant and frequently refuses to answer hypothetical questions or give an ex parte opinion as to the meaning or application of the law. In this case, however, it seems proper to comply with your request and indicate the present impressions of the Commission upon the several points you suggest.

The Elkins Bill apparently makes the following changes in the regulating statute:

1. The carrier is made criminally liable in all cases where the individual has been heretofore.

2. Willful failure to publish tariffs as required by law, or to observe such tariffs, is made a misdemeanor, punishable by a fine of not less than one thousand dollars nor more than twenty thousand dollars for each offense.

3. "To offer, grant, or give, or to solicit, accept, or receive any rebate, concession, or discrimination in respect of the transportation of any property. . . whereby any such property shall, by any device whatever, be transported at a less rate than that named in the tariffs published and filed by such carrier" is made an offense, punishable by like fine as above. It will be observed that the word "discrimination" is used in the paragraph above quoted, and this may add something to the former law.

It will be further observed that the paragraph quoted applies solely to the transportation of property.

4. Punishment by imprisonment is repealed in all cases.

5. In proceedings before the Commission, or before the courts, shippers as well as carriers may be included as parties. 6. The Federal Circuit Courts are given power to interfere by summary process to prevent departures from the published rates or other "discriminations forbidden by law."

Broadly speaking, as it seems to the Commission, there is no material change in the acts or things prohibited and declared to be unlawful. The criminal remedies for illegal conduct are changed and the criminal provisions of the law made more definite and positive. It is believed that these provisions can now be enforced as they could not before.

Taking up the specific questions in your letters we answer them as follows:

First. We are of the opinion that free or reduced transportation given "on account of" a shipper's business, or to influence that business, which is the same thing, would be a "rebate, concession, or discrimination" under the Elkins Bill. Any concession of that kind to be legal should be specified in the tariff and granted alike to all shippers.

The granting of free transportation to shippers is often a serious discrimination. The only way to deal with it effec

tively is to stop it altogether; and since this law furnishes a possible means of doing so its enforcement should be the aim of the carriers as well as the Commission.

Second. The subject of drayage has been discussed by the Commission and the courts. The fair import of those discussions appears to be that this service is connected with the transportation, and that the charges therefor should be stated in the published tariffs. This being so it would be a violation of the law to perform the service of drayage without providing for it in the tariffs, or to perform it for one and not for another.

Third. It is not believed that the payment of a reasonable commission for soliciting freight, or on the sale of tickets, can be held to be a rebate if the transaction is an honest one. If commissions are paid with the intent or expectation that they will be used, or if they are used, for the purpose or with the effect of granting a concession, the payment of such commissions would doubtless be held, and ought to be held, a violation of the law.

Fourth. The Commission has held that the present statute requires the publication of export and import tariffs. The Elkins Bill does not apparently change the requirements of the law in this respect, but it does afford the means for enforcing those requirements.

Fifth. It is difficult to see how the practice of charging lower rates to those who are establishing new industries than are charged at the same time to shippers of the same articles between the same points can be excepted from the operation and obligations of the law, however unobjectionable such a practice may be from a railroad and general economic standpoint.

Sixth. We prefer not to express an opinion at this time as to whether railroads may lawfully transport supplies for each other at reduced rates.

Seventh. The Commission has held that storage is a part of the service of transportation which the carrier performs, and that the charges for that service should be published in the

tariffs. The rendering of this service without such publication, or the rendering of it to one shipper and not to another, would seem to be in plain violation of the Elkins law.

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Eighth. Generally speaking the divisions of a reasonable rate between connecting carriers is a matter of indifference to the public. If, however, an allowance is made to a private road for only nominal service it would be a concession or discrimination." The question would seem to be in each case whether the arrangement was reasonable and free from discriminating design or effect.

Ninth. The first section of the Elkins Bill appears to refer exclusively to the transportation of property. The third section, investing the Circuit Courts with additional jurisdiction, covers both property and passengers.

You will understand that the foregoing are in the nature of first impressions, and that the Commission would not feel precluded by anything herein said from modifying the views above expressed in deciding an actual controversy after hearing both sides.

The Commission appreciates the difficulty of applying the hard and fast rules of a statute to unlike and changing conditions, and is not infrequently embarrassed by the want of discretionary authority. We believe that these recent amendments will prove highly efficient in their operation, because we are confident that the law in its present form will be supported by prevailing railroad sentiment and that in the efforts to enforce it the Commission will have the coöperation of railway managers generally.

Yours very truly,

(Signed) MARTIN A. KNAPP,

Chairman.

INDEX

1 Because of the full Table of Contents and the topical arrangement of
the material, it was not thought expedient to prepare an elaborate index
covering every point.