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1875, Mr. Woodworth (0.) introduced a bill to amend this act which was referred to the committee on agriculture.11 Two years later a bill relating to the transportation of animals introduced by Senator Howe (Wis.) was referred to the committee on judiciary.12 And at the next session a House bill (no. 4678) was reported from the committee on agriculture.13 In this report much evidence was presented to show the bad conditions which prevailed. The Pennsylvania Society for the Prevention of Cruelty to Animals reported that in a single train load from Chicago 1,500 dead animals had been found, and though a Chicago man stated that there had only been 792, it was bad enough. Another witness said that eastern markets were largely supplied with the meat of diseased animals. Stock was shipped from Chicago to Buffalo without rest making a trip of thirty-eight consecutive hours with nothing to eat or drink. Six per cent of the cattle and nine per cent of the sheep, it was estimated, died on their way to the East.

Shippers complained that they were compelled to pay exorbitant prices for feeding, e. g., $50 a ton for hay. A Boston firm testified that the charges for feeding at Buffalo were so unreasonable that they had built their own yards at a convenient point, when the railways refused to connect with them. The bill proposed to remedy conditions by shortening the time for confining animals without food or water to twenty-four hours. Cattle were to be put in dry pens and properly fed and watered, and reasonable rates charged for feeding and care. If food and water were supplied on the cars daily the animals need not be unloaded. It was not passed.

Again in 1879 a bill relative to the transportation of animals was introduced in the Senate, this time by Mr. McPherson (N. J.). It was referred to the committee on commerce, reported back, amended, discussed, and finally recommitted.

During the 1883–84 session Mr. Hopkins (Pa.) submitted 3 significant resolution which was agreed to by the House. The gist of it was as follows: whereas the present system of trans

1 H. Jr., 1875-76, p. 64, H. R. 249. The committee's report showed great evils to exist.

12 Cong. Rec., 1877, p. 116. S. 84, 13 Ibid., 1877-78, p. 3143.

porting stock in interstate commerce is barbarous, destructive, a source of disease, uneconomic through death or shrinkage of the cattle, a tax on food, and the twenty-eight hour act is habitually violated; and “whereas it has been charged that said railway companies, by a system of favoritism, give to a small number of persons, known as the Association of Eveners, 14 a bonus or gift of about $15 on every carload of beef cattle shipped from West to East, said sum

collected by the transporters and paid over to the so-called eveners as a mere gratuity;" resolved that the committee on commerce examine into the matter and inquire what remedies may be adopted.15 The committee reported at the following session, favoring the resolution 18 It was impressed with the importance of the subject and the numerous petitions received from the various parts of the country. Foreign markets, too, were often injuriously affected by reports of unwholesome conditions. Statistics were given to show that under favorable conditions on common cars the average shrinkage of cattle between Boston and Chicago was 50 lbs. a head, which shrinkage had been reduced to 17 1-3 lbs. on patent cars.

Finally, in 1886, Mr. Dorsey (Neb.) introduced a resolution that the House committee on commerce be instructed to inquire whether such evils existed and to what extent they might be remedied by law.17

It is not to be forgotten that laws like that passed in 1884,18 which restricted the transportation of livestock affected with contagious diseases, have a bearing in this connection.

SUMMARY

Thus, in the early Seventies, the livestock traffic of the railways having become important and the conditions in the same being very bad, an act was passed regulating such traffic in so

14 An organization for preventing loss through competition. Certain large shippers were given a rebate for equalizing or "evening," shipments over the various roads. It was adopted in 1875 and terminated with the formation of a successful pool among the Trunk lines in December, 1878. It caused much discussion and met with determined resistance.

15 See H. Rep., 1884-85, no. 2368.

16 Ibid.

17 Cong. Rec., 1885-86, p. 3122. 18 Statutrs at Lage, 23 : 52.

far as it was interstate. The act was far from perfect and seems to have been violated on a large scale; but, though not a few bills were introduced for remeding its shortcomings, no further legislation was enacted down to 1887.

This act and the act of 1866 to facilitate commerce are the only two pieces of federal legislation based on the commerce clause of the constitution which were passed prior to the Interstate Commerce Act of 1887. Like the earlier law, its importance in opening the field is noteworthy, and it should be observed that its significance was realized by those who passed . it. Mr. Eldridge called it a peculiar bill and deemed the power it would confer on Congress extraordinary; and Mr. Casserly said, “This bill is a new departure in the policy of this government. It is the first time Congress has undertaken to deal with that mighty problem whether the transportation of property upon railroads forming links in communication between state and state is commerce within the meaning of the constitution, in the first place, and whether in the next place, it is politic for Congress to assume the exercise of that power. It is one of the greatest questions which has ever arisen in this body. I have heard senators, and leading senators here, who did not doubt the congressional power, declare,

that they shrank from the consequences of exercising it."

Indeed, this act was no sooner passed than it was made an ar. gument for further regulation; and taking into consideration the act of 1866, the argument is a strong one. If Congress had the power to regulate state railway corporations as to their connections for forming continuous lines and to interfere regarding the compensation for interstate traffic; if Congress could constitutionally prescribe conditions of livestock traffic, regulating schedules, compensation for care, etc., and authorizing federal courts to inflict penalties; why was Congress not possessed of power to regulate other details of interstate commerce by railway, including rates?

CHAPTER XXI

DEVELOPMENT OF CONGRESSIONAL INTERPRETA

TION OF THE “COMMERCE CLAUSE"

Down to the present day the direct regulation of railways, as such, has been based upon that clause of the constitution which gives the federal government power over commerce with foreign nations, Indian tribes, and among the states. This power, as has been the case with other federal powers, has been the object of varying interpretation and has been greatly enlarged in its scope since the constitution was penned-not illegitimately, but by reason of the economic development of the nation.

In 1850 had the question been raised whether Congress had power under the constitution to regulate railway rates, the general answer would have been in the negative; and the majority of Americans would have denied the power of Congress to incorporate or construct or in any way interfere with railways outside the territories and the District of Columbia, unless it might be to insure the transportation of the mails or troops and military stores. At that time there were only 9,021 miles of railway in the land, and, during the decade preceding, railway construction, except in New England, had been slow. But three important lines were begun in the Middle West in that time. Moreover the lines of those days were short and through traffic was little developed. Railways were still local “improvements” and did not figure greatly in the interchange of commodities and persons among the states.

During the next decade, however, the railway net was pushed over the Alleghanies and to the Mississippi. The mileage increased to 30,635. Consolidations rapidly took place and the trunk lines were constructed. The railway became an important instrument in commerce among the states, competing with canals and rivers.

Then came the war, when the importance of railways was realized in a national way as never before. Moreover that conflict was a blow to the old states' rights theories and brought strength to the federal government. In the light of constitutional interpretation in general one might almost predict that under such circumstances the prevailing attitude toward government interference with railways would change, and in 1865, three years after the president had been empowered to take over railways, came the great Senate debate on "interstate intercourse” in connection with the Camden and Amboy monopoly. The objections made to the passage of this bill to prohibit the obstruction of interstate commerce by rail were most strongly stated by Senator Morrill (Me.) and Senator Johnson (Md.). Mr. Morrill said that the bill was based upon the power to regulate commerce; that if it were passed Congress would have asserted a principle which would justify the government in establishing rules and regulations in regard to commerce over internal railways precisely as over the navigable rivers of the United States; that custom-house officers might be established at railway depots and all the regulations concerning navigation be applied to these artificial highways.” He believed that there was no occasion for the exercise of such a power, and that it would be dangerous. “The system works well enough as it is." Moreover, he held that a railway was to be regarded as "a way for commerce, chartered by a State, built entirely by a State, and entirely within its limits and jurisdiction," and could such a way be interfered with by the government of the United States? Never in the history of the nation had the power over commerce been pushed so far.

Mr. Johnson appealed to the framers of the constitution. They would not have sanctioned such a step. The states alone had power to charter railways and it followed that they alone could regulate them; of the powers which had been supposed to be exclusively vested in the states that of regulating tolls, service, and manner of conducting business was one.

Mr. Howard (Md.) replied that the essence of this argument

1 See above, p. 224. ? Cong. Globe, 1865-66, p. 2194.

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