We hold, in accordance with what we conceive to be the current of authority and the sounder view on this subject, that the legislature was authorized, as was done in this act, to confine the sale of passage tickets of railroad companies to the agents of such companies, and to make it penal for any other person to make a sale of same; that the ticket of a railroad company is not "property," in the general acceptance of the term, but the purchaser has only a special property in the ticket, as evidencing ⚫ his right to passage on the road; that common carriers within this State are peculiarly subject to regulation, and that to preserve and protect both the passenger and the company itself against fraud is within the province of the police power of the State and not violative of any provisions of the Constitution, nor can it be said that such regulation is in any wise the creation of a monopoly.

FEDERAL COMMON LAW-APPLICATION OF THE COMMON LAW TO

UNJUST RATE DISCRIMINATIONS.

A case of some interest recently decided by the United States Supreme Court is that of Western Union Telegraph Co. v. Caii Publishing Co. (181 U. S., 92). The case came to the United States Supreme Court, upon writ of error, from the Supreme Court of Nebraska which, after a second trial, had affirmed a judgment rendered for the plaintiff, the Call Publishing Company, of Lincoln, Nebr., by the District Court of Lancaster County. The controversy was based upon a discrimination in rates for telegraph services against the plaintiff and in favor of the Nebraska State Journal, also published in the city of Lincoln. The telegraph company contended that there is no Federal common law; that there was no Federal statute applicable to the case; and as the matter is interstate commerce, wholly removed from State jurisdiction, that there was no controlling law, and the question of rates was left entirely to its own judgment.

Upon the question whether there is a Federal common law the Supreme Court, after reviewing some of its former decisions, says:

There is no Federal common law separate and distinct from the common law existing in the several States in the sense that there is a body of statute law enacted by Congress separate and distinct from the body of statute law enacted by the United States. But it is an entirely different thing to hold that there is no common law in force generally throughout the United States, and that the countless multitude of interstate commercial transactions are subject to no rules and burdened by no restrictions other than those expressed in the statutes of Congress.

The principles of the common law are operative upon all interstate commercial transactions, except so far as they are modified by Congressional enactment.

The decision also refers to the case of Murray v. Chicago & Northwestern R. Co. (62 Fed. Rep., 24), decided by the United States circuit court for the northern district of Iowa, wherein opinions of the Supreme Court are quoted from at length, all tending to show the recognition of a general common law existing throughout the United States, not, it is true, as a body of law distinct from the same law enforced in the States, but as containing the general rules and prin1881-02- -4

ciples by which all transactions are controlled, except so far as those rules and principles are set aside by express statute.

The telegraph company further insisted that even if there is a controlling law there was no evidence of discrimination such as would entitle the plaintiff publishing company to the verdict it had obtained in the State court. The Supreme Court held that there was testimony tending to show the conditions under which the services were rendered. to the two publishing companies, and it was a question of fact whether, upon the difference thus shown, there was unjust discrimination in the charges. The question of fact having been determined by the jury in the State court in a verdict for the plaintiff, it was held that it was not subject to review by the Supreme Court.

Two points seem to have been settled by this decision: First, that there is a general common law existing throughout the United States operative upon all interstate commercial transactions, except as modified by Federal statutes; second, that a difference in rates not warranted by the difference in conditions under which the services are rendered may be cause for suit and recovery at common law.

THE HARTER ACT.

The attention of the Commission has been called to a defect in the statute known as the Harter Act (27 Stat. L., 445), which is designed to prohibit the insertion in bills of lading of clauses exempting ocean carriers from liability for loss or damage due to "negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery" of property carried between United States and foreign ports. The act contains in section 3 an exception that neither the vessel nor its owner shall be held responsible for damage or loss resulting from "faults or errors in navigation or in the management of said vessel," if due diligence has been used to make the vessel seaworthy and properly manned, equipped, and supplied. Faults or errors in navigation may be covered usually by insurance, but negligence due to mismanagement of the vessel while in port, which results in damage to the cargo, is not understood to be a subject of insurance, and the shippers have now no protection against losses from that cause under such exception as to errors of management in section 3 of the Harter Act. This exception was construed by an English court in 1895 in the case of The Glenochil, where it was held that such exception is not confined to the management of the vessel during navigation, but that it also covers the time while the cargo remains on board the vessel in port and undelivered. The result is that the very purpose of the act to prevent the carriers from exempting themselves from their common law liability-is defeated when damage to cargo occurs through negligent management while the vessel is not

being navigated. The Commission understands that it has no duties to perform under this act, but as questions somewhat similar also arise under the act to regulate commerce and as both statutes apply to interstate or international commerce, it is believed that the defect in the Harter Act, resulting from operation of the exception in section 3, as to "management," may properly be brought to the notice of Congress in this report.

CIVIL CASES PENDING IN THE COURTS.

Interstate Commerce Commission v. Louisville & Nashville Railroad Company. Rates on coal. United States Circuit Court of Appeals, sixth judicial circuit.

Interstate Commerce Commission v. Louisville & Nashville Railroad Company. Middlesboro, Ky., long and short haul case. United States Circuit Court, southern district of Ohio.

Brewer et al. v. Louisville and Nashville Railroad Company et al. Griffin, Ga., long and short haul case. United States Circuit Court, southern district of Georgia.

Interstate Commerce Commission v. Northern Pacific Railroad Company et al. Fargo, N. Dak., long and short haul case. United States Circuit Court, district of North Dakota.

Interstate Commerce Commission v. Western New York & Pennsylvania Railroad Company et al. Discriminating rates on petroleum oil. United States Circuit Court, western district of Pennsylvania.

Interstate Commerce Commission v. Chicago, Burlington & Quincy Railroad Company et al. Terminal charge on live stock. United States Supreme Court.

Interstate Commerce Commission v. Louisville & Nashville Railroad Company et al. Rates on naval stores to Savannah and Pensacola. United States Circuit Court, southern district of Georgia.

Interstate Commerce Commission v. Nashville, Chattanooga & St. Louis Railway Company et al. Hampton long and short haul case. United States Circuit Court, southern district of Florida.

Interstate Commerce Commission v. Southern Pacific Company et al. Kearney long and short haul case. United States Circuit Court, northern district of California.

Interstate Commerce Commission v. Louisville & Nashville Railroad Company et al. La Grange, Ga., long and short haul case. United States Supreme Court.

Interstate Commerce Commission v. Southern Railway Company. Danville long and short haul case. United States Circuit Court,

western district of Virginia.

STATISTICS OF RAILWAYS.

FINAL REPORT FOR YEAR ENDING JUNE 30, 1900.

Following is an abstract of the Thirteenth Statistical Report of the Interstate Commerce Commission prepared by its statistician, being a report for the year ending June 30, 1900:

MILEAGE OF RAILWAYS.

On June 30, 1900, the total single-track railway mileage in the United States was 193,345.78 miles, an increase during the year of 4,051.12 miles being shown. This is a greater increase than that for any other year since 1893. The States and Territories which show an increase in mileage in excess of 100 miles are Alabama, Arkansas, California, Idaho, Illinois, Iowa, Louisiana, Minnesota, Mississippi, Nebraska, North Carolina, Oregon, Pennsylvania, South Carolina, Texas and Oklahoma. The aggregate length of railway mileage for which operations were reported, including tracks of all kinds, was 258,784.30 miles. The distribution of this aggregate mileage was as follows: Single track, 192,556.03 miles; second track, 12,151.48 miles; third track, 1,094.48 miles; fourth track, 829.29 miles, and yard track and sidings, 52,153.02 miles.

CLASSIFICATION OF RAILWAYS.

The number of railway corporations included in the report was 2,023. Of this number, 1,067 maintained operating accounts, 847 being classed as independent operating roads and 220 as subsidiary roads. Of roads operated under lease or some other form of contract, 324 received a fixed money rental, 167 a contingent money rental, and 241 were operated under some form of agreement or control not readily classified. The owned mileage of roads merged, reorganized, or consolidated during the year was 13,701.96 miles. The corresponding figure for 1899 was 6,221.43.

EQUIPMENT.

There were 37,663 locomotives in the service of the railways on June 30, 1900, or 960 more than the year previous. Of the total number reported, 9,863 are classed as passenger locomotives, 21,596 as freight locomotives, 5,621 as switching locomotives, and 583 are not classified.

The total number of cars of all classes in the service of the railways on the same date was 1,450,838, an increase of 74,922 being shown in this item. Of the total number, 34,713 are assigned to the passenger service, 1,365,531 to the freight service, and 50,594 to the direct service of the railways. It should be understood, however, that cars owned by private companies and firms and used by the railways are

not included in the returns made to the Commission. The report contains summaries which indicate the density of equipment and the extent to which it is used. Thus it appears that the railways of the United States used on an average 195 locomotives and 7,535 cars per 1.000 miles of line; that 58,488 passengers were carried and 1,626,179 passenger-miles accomplished per passenger locomotive, and that 51,013 tons of freight were carried and 6,556,731 ton-miles accomplished per freight locomotive. All of these items show an increase when compared with those corresponding for the year 1899. There was a decrease in the number of passenger cars per 1,000,000 passengers carried and a decrease in the number of freight cars per 1,000,000 tons of freight carried.

Both locomotives and cars being embraced in the term "equipment," it appears that the total equipment of the railways at the end of the year was 1,488,501. Of this number, 1,005,729 were fitted with train brakes, the increase in this item being 197,655, and 1,404,132 were fitted with automatic couplers, the increase in this item being 266,413. Practically all locomotives and cars in the passenger service were fitted with train brakes, and of 9,863 locomotives assigned to that service, 7,431 were fitted with automatic couplers. Nearly all passenger cars were fitted with automatic couplers. With respect to freight equipment, it is noted that nearly all freight locomotives were equipped with train brakes, and 75 per cent of them with automatic couplers. The corresponding proportion for 1899 was 45 per cent. Of 1,365,531 cars in the freight service June 30, 1900, 920,465 were fitted with train brakes and 1,307,559 with automatic couplers.

EMPLOYEES.

The number of persons employed by the railways of the United States, as reported for June 30, 1900, was 1,017,653, or an average of 529 employees per 100 miles of line. As compared with the number employed on June 30, 1899, there was an increase of 88,729, or 34 per 100 miles of line. From the classification of these employees it appears that 42,837 were enginemen, 44,130 firemen, 29,957 conductors, and 74,274 other trainmen. There were 50,789 switchmen, flagmen, and watchmen.

Disregarding 8,394 employees not assigned to the four general divisions of employment, it is found that the services of 36,451 employees were required for general administration, 324,946 for maintenance of way and structures, 197,799 for maintenance of equipment, and 450,063 for conducting transportation.

The report contains a statement of the average daily compensation of the eighteen classes of employees for nine years, beginning with 1892. Another summary gives the total compensation of more than 99 per cent of railway employees for the fiscal years 1895 to 1900.