The subject of agreements among railways is less adequately provided for in the Cullom Bill. If the history of competition in railway development the world over proves anything conclusively, it establishes the futility of competition as a workable basis of railway operation and administration. While a certain amount of competition may always persist and bring about improvements in the service, speaking generally, competition in railway affairs has failed at nearly every point, and any legislation which rests upon the doctrine of competition among railways must inevitably fail.

prudent course of action would recognize the inadequacy of competition and accept a reasonable amount of freedom for carriers in making agreements among themselves, subject to the supervision of the Commission. The agreements contemplated in this connection are more comprehensive than pooling arrangements, which are only a species of which the other is the genus. The history of railway pooling, however, does not afford a single forcible argument against granting to railways the privilege of coöperating in any manner which seems expedient to them, provided such cöoperative arrangements are based upon contracts properly scrutinized and supervised and enforcible in the courts. Hence a provision legalizing organizations like the former Joint Traffic Association and permitting agreements among railways on the eight or more different subjects which have hitherto been the object of railway agreements, would appear to

be desirable. Clearing-house arrangements should also be facilitated.

The standing which, by the Cullom Bill, is to be given in the courts to decisions and proceedings of the Commission remedies one of the most unfortunate weaknesses in the present statute. Time and again the case before the court has been made, through the introduction of new facts, an entirely different one from that before the Commission. The proposed law makes this impossible. "The proceedings certified from the Commission, together with any additional testimony taken as above, shall constitute the record upon which the case shall be heard by the Circuit Court."

With respect to fines for violation of the act, a clearer distinction should, perhaps, be made between fines on the offending person and fines on the guilty corporation. It seems a gross injustice to mulct a man for doing that which corporate management may compel him to do. Personal fines may be wholesome in such cases as making false entries, under-billing, etc., but these should not be too heavy. The bulk of the pecuniary loss following an infraction of the law should fall upon the corporation. Heavy fines, often repeated, would have an appreciable influence on dividends, and this would immediately touch the pockets of the stockholders and bondholders who, in turn, would be transformed into an army of remonstrators working toward a reduction in the number of fines, and a better observance of the law.

The inclusion in the Cullom Bill of the act in relation to testimony before the Interstate Commerce Commission, passed February 11, 1893, is a matter of convenience and does not affect anything vital in the measure.

In the light of the facts presented in this book it would seem both desirable and necessary that the increase in power contemplated in the Cullom Bill should be granted. However, if Congress does not see fit to do this, it is to be hoped that an end will be put to the present delay in the execution of orders, and that the unscrupulous manager will no longer be permitted to impose his code of ethics upon the great majority of conscientious and just railway officials.

The vigorous protests which have recently been made by several prominent railway officials against an increase of the powers of the Commission, on the ground that the present law is adequate if only the Commission will properly use the power vested in it, carry much weight because of the high standing of the authors of these protests. Yet the writer has been unable to find any escape from the conclusions presented in this chapter, and nothing but an entirely new collection of facts, differing in import from those now available, could, it seems, warrant a modification of these conclusions.

NOTE. The Cullom Bill was superseded by two bills 1 introduced during the first session of the 57th Congress, which in turn were superseded by a consolidated bill 2 introduced during the second session (December 3, 1902) of the 57th Congress. The last bill is now on the calendar. While these bills have supplanted the Cullom Bill, everything which has been said in the discussion of the latter would also have to be said in regard to the former. The content of a discussion of pending legislation would be essentially the same irrespective of the special bill to which it applies. And the historical significance of the Cullom Bill is of sufficient importance to warrant the retention of the analysis made of it in this chapter.

House bill 8337 provides for strict adherence to the published rates, and also fines shippers for making false representations as to classification, in order to secure other than published rates. The Interstate Commerce Commission is empowered, on complaint, to determine rates, the relation of rates, classifications, etc., for the future. The record of the hearings before the commission is to be accepted by the court as the basis of its findings. The bill provides for appeals, and gives the United States courts power to enforce obedience to the law and in general to exercise full legal jurisdiction.

The Senate bill 3521 likewise empowers the Interstate Commerce Commission to prescribe, in certain cases, just and reasonable rates for the future, as well as the division of rates and the limits of time during which its orders can be enforced. The rates thus prescribed are reviewable by

1 (1) H. R. 8337: A Bill to amend an Act entitled "An Act to Regulate Commerce," approved February 4, 1887, and all acts amendatory thereof. Introduced by Representative Corliss, and in the Senate, in identical form, by Senator Nelson.

(1) S. 3521: A Bill to enlarge the jurisdiction and powers of the Interstate Commerce Commission. Introduced by Senator Elkins. 2 H. R. 15592: A Bill to enlarge the jurisdiction and powers of the Interstate Commerce Commission.

United States courts, and may be suspended under specified conditions. The records, testimony, etc., of the commission shall be accepted as prima facie evidence in the United States courts, and additional testimony may be taken in accordance with law. The method of appeal is also described. Agreements for the division of traffic and other species of coöperation are permitted, and the commission is empowered to investigate such pooling and other arrangements on complaint. United States courts are empowered to enforce obedience, and in the case of railways passing both through foreign countries and through the United States, traffic in the United States may be suspended on such roads in order to enforce the act. The published rates must be adhered to by both railways and shippers under prescribed penalties.

The third bill is an amended form of the second so as to meet the main provisions of the first. Important railway as well as commercial interests have given their support to the measure, and interests formerly hostile to such legislation are said to have acquiesced in it.