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expedite our business, and in the hope that by
doing so parties whose interests seemed to be
identical should, as far as possible, be enabled
to concentrate their evidence and their argu- Mr.W. S. Chisholm of Savannah.
ments. We hope that method will be taken meeting of the railroad companies held last
here, as a necessary course, in order that we evening, a list of witnesses was prepared.
may have fully laid before us all the evidence | The proposition which you announced this
and all the views of those who may think they morning was also considered, to wit: that it
have facts important for our consideration. would be for the interest of all concerned to
We have not expected to take up each of these take up the petitions together so far as they
petitions by itself. It has seemed probable bore upon the same points and the same ques-
that the facts that would support one, must, to tions. All of the railroads belonging to the
large extent,support another; and that what Southern Railway & Steamship Association,
would tend to disprove the one would, to a of course, have joint interests, and those joint
large extent, tend to disprove the others; so interests are set forth in their various petitions.
that the evidence will largely be taken for its In addition to those roads there is the Charles-
bearing upon all the petitions together.
ton & Savannah Railway Company, and the
Savannah, Florida & Western Railway Com-
pany, running from Charleston to Savannah,
and from Savannah to various Florida points.
It is proposed now that all of the petitions of
the roads forming the Southern Railway &
Steamship Association, and those of the
Charleston & Savannah road and of the Sa-
vannah, Florida & Western road be taken to-
gether.

made that the names of witnesses who were to
be examined should be handed in this morning.
Is that list now ready?
At the

As we proceed, any petitioner desiring to present that which is special to himself, will have the opportunity to do so when he is upon

the stand.

With these few remarks, sufficiently indicating the course we desire to have pursued, we shall for the time being, leave the matter in | the hands of the petitioners, expecting that they will endeavor, as far as possible, to conform to the views expressed and present their evidence as succinctly, clearly, and concisely as may be found practicable.

Charles A. Sindall then appeared before the Commission, and having been duly sworn was examined as follows:

By Mr. E. P. Alexander:

Q. Please state to the Commission what po

A. I am secretary of the Southern Railway & Steamship Association.

Mr. R. B. Bullock of Atlanta. I have been requested to ask the Commission to be kind enough to suspend for a moment the reg-sition you occupy. ular order as indicated by the circular, that you may hear from the chairman of a large meeting which was held last night, representing the different cities, chambers of commerce, manufacturing interests, etc., who are affected and interested in this matter.

Mr. J. F. Hanson, of Macon, Georgia, then came forward, and, as Chairman of the meeting above referred to, submitted a memorial prepared by that body, asking for the permanent suspension of the Fourth Section of the Act to regulate commerce.

Mr. Hanson. This action was taken in pursuance of a notice posted up in the Kimball House, requesting all parties who had come representing localities or commercial bodies, to meet us last night. Our action was practically unanimous; in fact, I may say it was entirely unanimous; and this action we desire to present as the action of the business interests here represented independent of the railroads. I was also requested to ask the Commission to allow these commercial bodies to present their memorials, if possible, today, in order that they may go home, as many of them live at a great distance.

Mr. Norcross of Atlanta. As you have allowed some general matter to be introduced here

The Chairman. We will take up this matter in order.

Mr. Norcross. I thought this proceeding

was out of order,

The Chairman. It is not out of order, because we have allowed it by special order made for the purpose.

Mr. Norcross. I wish to present an argu

ment.

The Chairman. We will not take it now We will take it at some proper time. In the program marked out yesterday, a request was

Q. Are you familiar with the rates which are being worked generally in this territory? A. Yes sir.

Q. I wish to question you first as to the rates that prevail and the method in which they are made, from northern and eastern cities to Mobile?

A. The rates to Mobile are made in competition with the steamship lines, the steamship lines making their rates to Mobile or New Orleans from the north.

Q. What are the lines?

A. The Cromwell line, the Morgan line, and the Mobile & New York Steamship Company. Q. Where do those lines run?

A. The Cromwell and Morgan lines run from New York to New Orleans. The Mobile & New York line runs between those ports.

Q. Do the rates charged or made by those steamers generally control the rates to those places which other lines have to accept?

A. Yes sir, they make the rates. We have to accept those rates or go out of that business entirely.

Q. Will you illustrate that by giving the average figures of the present prevailing

rates?

A. The present figures to Mobile and New Orleans are from fifty to fifty-five cents on first class by steamer. The rail lines are charging seventy-five cents.

Q. Are the rail lines able to maintain any better rates than the steamers?

A. No sir, they cannot maintain any higher rates than the difference in insurance will compensate for, and occasionally the difference in time.

Q. But generally the rates are controlled entirely by the steamship lines?

dication, because it is liable to be reviewed by | read an extract from the opinion of the Suit and reversed by it if, in its better judgment preme Court of the United States in the case of hereafter, it should entertain a different opin- Walling v. Michigan, in 116 U. S. 456 [Bk. 29, ion from that which has been expressed by L. ed. 694], which is as follows: itself, because it is a well defined rule, announced by that court, that in constitutional questions, the rule of stare decisis is not obligatory upon itself. Constitutional questions are always open for revision by the supreme court itself, notwithstanding there may have been one or more decisions upon the subject. But, while open for revision by that court such de-aids to commerce, and can only be properly cisions, until reversed by it, are obligatory upon all other tribunals, and demand implicit obedience from all citizens throughout this land. In the case of Robbins v. Shelby County it was decided that a state law imposing a tax upon commercial agents who solicited contracts for sale of property owned by citizens of another State was beyond the power of the State to enact or enforce; that it was in contravention of the constitutional provision that Congress should have the exclusive power of regulating commerce between the States, a tax upon commercial agents or drummers of one State soliciting business within another State being a tax upon interstate commerce.

"The subjects indeed upon which Congress can act under this power are of infinite variety, requiring for their sucessful management dif ferent plans or modes of treatment. Some of them are national in their character, and admit and require uniformity of regulation, affecting alike all the States; others are local, or are mere

regulated by provisions adapted to their special circumstances and localities. Of the former class may be mentioned all that portion of commerce with foreign countries or between the States which consists in the transportation, purchase, sale and exchange of commodities. Here there can of necessity be only one system or plan of regulation, and that Congress alone can prescribe. Its nonaction in such cases, with respect to any particular commodity or mode of transportation, is a declaration of its purpose that the commerce in that commodity or by that means of transportation shall be free. There would otherwise be no security against conflicting regulations of different States, each discriminating in favor of its own products and citizens, and against the products and citizens of other States. And it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign Nations and among the States was to insure uniformity of regulation against conflicting and discriminating state legislation.'

It was said in argument that that decision did not cover the whole proposition, that it was limited only to discriminations which were made by the Statute of Tennessee as against the citizens of other States, and that if the law had been equally as applicable to all travelers the decision would not cover it. But an inspection of that decision shows this to be a mistaken view of the subject. The court And further down on page 457 [695], it is said: grasped the whole matter, discussed the whole "And after an examination of the causes matter, fully, and decided the precise point as which led to the adoption of the Federal Conlaw, as will be seen from the following quota-stitution, one of the principal of which was the tion from the decision:

"But to tax the sale of such goods, or the offer to sell them, before they are brought into the State, is a very different thing, and seems to us clearly a tax on interstate commerce it self. It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drumers, those of Tennessee and those of other States, that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is carried on solely within the State. This was decided in the case of State Freight Tax Cases, 15 Wall. 232 [82 U. S. bk. 21, L. ed. 146]. The negotiation of sales of goods which are in another State, for the purpose of introducing them into the State in which the negotiation is made is interstate commerce. A New Orleans merchant cannot be taxed there for ordering goods from London or New York, because in the one case it is an act of foreign, and in the other of interstate commerce, both of which are subject to regulation by Congress alone."

Thus it will be seen that it does not put the decision at all upon the question of discrimina tion between drummers within the State and drummers outside the State; but it says that no law which imposes upon the person soliciting sales for merchants outside of the State is admissible, because that is a regulation of interstate

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necessity for the regulation of commerce and the laying of imposts and duties by a single government, the court says: 'But whatever may be the motive for the tax, whether revenue, restriction, retaliation, or protection of domestic manufactures, it is equally a regulation of commerce, and in effect an exercise of the power of laying duties on imports; and its exercise by the States is entirely at war with the spirit of the Constitution, and would render vain and nu gatory the power granted to Congress in relation to those subjects. Can any power more destructive to the union and harmony of the States be exercised than that of imposing discriminating taxes or duties on imports from other States? Whatever may be the motive for such taxes, they cannot fail to beget irrita tion and lead to retaliation; and it is not difficult to foresee that an indulgence in such a course of legislation must inflame and produce a state of feeling that would seek its gratification in any measures regardless of the consequences."

Such is the declaration by the Supreme Court of the United States, of the spirit and scope of these constitutional provisions; that they are necessary to the harmony, and repose of the States; that they are necessary to the equal jus tice and equal privileges of the citizens of all the States of this Union; that they cannot be restricted at all; and that whatever rule is made with reference to them must be a uniform rule by the Congress of the United States acting as the National Legislature, regulating and controlling the commerce of the entire domain of

the United States, with a view to do equal jus | States at all; the United States has here a fortice between all the parts of the country and to take away any possibility of prejudice or any suggestion of injustice or discrimination by one as against another. That being so, it is manifest that any regulation upon this subject must be a regulation by Congress, in its capacity as the National Legislature.

eign territory in which it can legislate in antagonism to the interests of the States and in opposition to the policy which prevails in the Constitution, obligatory upon the States in their intercourse one with another to do equal and exact justice one as to the other and each as to all. Such an argument cannot have any sancNow, could Congress, if it had been so dis- tion at the hands of this court. This District is posed, have delegated to the Legislative Assem-set aside and dedicated to the uses of the Nation, bly of this District the power to pass any such and if there be anywhere on the face of the law? That is not an open question in this earth a locality where no discrimination should court. In the case of The District v. Wagga-be made as against the rights of any of the man, 1 Cent. Rep. 823, 4 Mackey, 333, this court said:

"In Roach v. Van Riswick, 7 Wash. Law. Rep. 496, this court held that the very broad terms in which the organic Act of 1870 granted legislative powers to the Legislative Assembly had the effect to clothe that body with only such powers as might be given to a municipal corporation, and that it was not competent for Congress to delegate the larger powers of general legislation which it had itself received from the Constitution."

We have already shown by these extracts that this subject matter belongs to the larger power of general legislation,-belongs to Congress, as the Legislature of the Nation. It could not, therefore, within this announcement, delegate any such part of its general legislative power to a municipal legislative body. It is altogether outside the scope of a municipal body to legislate on this subject.

It would be marvelous indeed if, when the Constitution strips all the States of this Union of power to legislate on this subject, it could be pretended that a municipal body could be clothed with any such faculty. If a State cannot do it, how can a body inferior to a State do it? How can it be said to be within the power of a municipal corporation, when it is not within the power of a sovereign State to legislate upon this subject matter? It would seem sufficient to stop at this point.

But it has been said here in argument that, the Congress of the United States having the exclusive legislative power of this District of Columbia, there is no restriction upon its capacity to act as such Legislature. If the question were before the court in that aspect, it would not be difficult to say that it is a proposition that cannot be entertained by any who regard the comprehensive power of the Constitution, the object for which it was formed, or the purposes for which this District of Columbia was dedicated to national uses, to maintain that a body may be established here in legislative form, in antagonism to the rights of the various States of this Union.

This community is not even a State. It is an organized body to be legislated over by Congress alone. This District has surrendered its right of representation, and that representation is vested in Congress; but still it is vested in Congress as the National Legislature, and it is to be exercised by Congress in subordination to the principles of the Constitution of the United States. The argument, pushed to its extreme, would simply be this: Congress is without constitutional restraint as to this District; the people are helpless, and not under the sanctions or protection of the Constitution of the United

States or any citizens of the United States, it should be upon this soil where all are equal, on which each citizen has an equal right and in which each State has an equal right, as regards all the other States and as regards the United States itself. This Territory is dedicated simply as a temple of justice, as a temple where the liberties of the Nation are to be sacredly preserved; and it is for that purpose that it should be exempt from hostile control or the possibility of antagonism with the purposes of the Union. Congress was vested with the power of exclusive legislation for this District, but not at all for the purpose of enabling it to legislate in any manner in hostility to the rights of any of the States of the Union.

Can it be supposed for an instant that any of the States would have ceded to the Government of the United States a district for the seat of its Government in which hostile legislation should be exercised towards the interests of the citizens of those States or the citizens of their sister States? We cannot suppose such a thing possible. We cannot suppose that when the Congress was vested with power to legislate over this District it was clothed with any power to act as such Legislature in hostility to the rights of the States or to do anything regarding the interests of the citizens of one State which any State of the Union could not do with regard to the citizens of any other State. We are subject to the Constitution of the United States. Here, if any were, the Constitution should be venerated, and the most sedulous regard should be had for each and all of its provisions, and we should rejoice that we are under its provisions; we should rejoice that we are under its protection; we should rejoice that we are set apart for the purpose of ministering to the temple of justice, the temple of "Equality of Laws" which has been established in our midst.

It seems impossible, therefore, to argue from the fact that Congress has exclusive legislation over this District that it has the power of the tyrant through this District over the States of the Union. The whole idea is inconsistent with the spirit of our institutions, utterly inconsistent with the object for which the Constitution was formed, and for which this district of country was set apart for the uses of the general government. Therefore, even if Congress had undertaken, with regard to this District, in its general capacity as the Legislature for the District, to pass such a law, it would have been outside the power of Congress so to do; because, as a National Legislature, it can only legislate under the commercial power upon the principle of uniformity, which is to pass laws equally operative upon any, every, and all

parts of the Union; and therefore any discrimination in favor of this community would be in violation of the spirit, if not the letter, of the Constitution of the United States.

But we need not go that far for the purposes of this case. It was only necessary to speak of it for the purpose of repelling the argument, and making it be seen how we regard the re lations of this community to the legislative power of Congress and to the several States of the Union. It is enough for the purposes of this cause to say that the delegated power to the Legislative Assembly of this District was the delegation only of municipal power, and that any attempt to legislate in this respect is ultra vires a municipality as it is ultra vires the power of a State of this Union.

For these reasons the court is of opinion that the prosecution was without authority; that so far as this law operates on this class of cases it is null and void, and that the prisoner must be discharged from custody.

But it is necessary to add that this decision on this branch of the Law is not at all inconsist ent with the decision that was made in the Case of Waggaman, where it was held that the Legislative Assembly was empowered to impose a license tax upon people doing business within the District of Columbia. All occupations which are limited to the District of Columbia are subject to the taxing power. That is what was held in that case, and there is nothing in this case at all inconsistent with it. If this party had taken out a license for the District, for the purpose of soliciting business within the District, for sales by people within the District, he might have been subject, and would have been subject, to the license law. But upon the face of this information it appears affirmatively that his exclusive business was to act as the agent of citizens of other States, soliciting contracts of sale for goods within those States, thereafter

to be brought under the dominion, and within the control of the taxing power of the District. Therefore, there is no inconsistency between the two decisions. They are entirely harmoni ous, and there can be no difficulty in maintaining that in the aspect in which this case is presented, it is directly in the face of the decision in Robbins v. Shelby County, directly in opposition to the whole current of decisions upon the commercial power of the United States as expounded by the Supreme Court of the United States, and cannot be permitted to stand as law.

Mr. Riddle: If I apprehend this decision correctly, it leaves the law to be enforced against the citizens of the District.

Mr. Justice Merrick: Unquestionably. Mr. Riddle: The license law can be enforced against the citizens of the District?

Mr. Justice Merrick: Against citizens of the District who are soliciting sales for people within the District. But a citizen of the Dis trict who is employed as an agent of a citizen of another State, for the purpose of selling the goods of that citizen of the other State cannot be restrained from so doing by the Legislative Assembly.

I

Mr. Riddle: I quite apprehended that. Mr. Justice Merrick: And further than that, will say that if his business had been to solicit business as a drummer within the District, and he had mingled with it the business of the people of a State, he would be obnoxious to the law, not for soliciting business for citizens of States, but as acting as a drummer generally. But here, the information says that he is charged with doing exclusively the business of a commercial agent, soliciting and selling his goods for citi zens of other States. That is the exclusive business with which he is charged, and therefore it may well stand with the other matter about which the counsel has made the inquiry.

THE INTERSTATE COMMERCE COMMISSION.

THE taking of testimony by the Commission in relation to the suspension of the Fourth Section under the petition of the Southern Railway & Steamship Association, closed at Memphis on May 5, and public sessions of the Commission were resumed at Washington on May 18.

(May 10-16, 1887.)

Be SUSPENSION OF FOURTH SECTION.

A

against "the suspension of section 4, and against the railroads being allowed to charge more to any part of the interior between the Mississippi River, Missouri River and the Pa cific Coast than they do to the coast." The protest says:

We here in the interior have been unmercifully treated and discriminated against for the last six years by the railroads. For instance, we have been charged from St. Louis to Prescott from $700 to $1,300 per car, while the for from $125 to $250 per car. The distance same kind of goods would go to San Francisco from St. Louis to San Francisco over the Atchison, Topeka & Santa Fé Road and the Atlan tic & Pacific Road is about 2.600 miles; from St. Louis to Prescott about 1,700 miles.

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The Commission also received a petition from committee of citizens of Newman, Ga., protesting against the suspension of the fourth sec tion. The petition says:

PETITION was received from citizens of Palatka, Florida, remonstrating against the suspension of the Fourth Section. It recites that Palatka is at the head of deep water navigation of the St. John's River and possesses peculiar advantages as the distributing point for South Florida, of the benefit of which it has been deprived by artificial laws of railroads. "We respectfully submit that the enforceThe Commission received from the Commitment of the fourth section means the growth tee on Railroads and Transportation of the of the smaller towns, more large towns and Prescott, Arizona, Board of Trade a protest fewer large cities."

(May 17, 1887.)

DAILY ORDER OF BUSINESS.

Washington, May 18, 1887.
J. H. Hanley, Traffic Manager Minneapolis &
Northwestern Railway Company:

Dear Sir: The Commission is in receipt of a

THE Commission adopted and promulgated the following Daily Order of Business: At 10 o'clock A. M., private session for the reception and disposition of new business. At 11 o'clock A. M., public session for hearings assigned and for the consideration of other matters which may be presented At 3 o'clock P. M., private session for the disposition of un-terests of the road are being very seriously infinished business and for conference.

telegram from you by which you urge the prompt making of an order of relief on the application heretofore filed for the suspension of the long and short haul clause "in so far as it affects at certain points, the business of the road under your charge."

(May 18, 1887.)

You state, and no doubt believe, that the in

jured by the enforcement of that clause. If relief could be given you without a stretch of authority, and without at the same time causHE Commission heard arguments upon ap: would take great pleasure in granting it. But ing mischief to other interests, the Commission THE plication of the Queen & Crescent Railway what evidently appears to you very easy and system for a permanent suspension of the fourth section of the Act. John C. Gault, simple does not seem to its members to be so; General Manager of the system, addressed the and however anxious they are that your interCommission. He stated that his road was will- ests should not continue to suffer, they are coning and anxious to give the law a fair trial, and ment still longer. Perhaps the delay entitles strained to hold the application under adviseonly asked to be relieved from water competition; that meant the Ohio and Mississippi Riv- you to some further statement of reasons than has heretofore been given; and although these ers, chiefly. General Black, Commissioner of Pensions, that a brief summary will be sufficient to satiscannot now be gone into at length, it is hoped representing the Board of Managers of the Na-fy you that the Commission does not act arbitional Volunteer Soldiers' Home, next appeared before the Commission, asking for a suspension, a modification or some legal arrangement by which the inmates of the homes might be permitted to continue the enjoyment of the half fare rates on railroads.

Representative Cabell, of Virginia, appeared for the Board of Trade of Danville, Va., and made complaint against the Richmond & Danville Railroad. Since that road had acquired control of the Virginia Midland Railroad, he said, rates had been greatly advanced and the interests of the town ruined. After Mr. Cabell had spoken the hearing was adjourned for the day.

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2. Any order for suspension must be based upon investigation.

3. Incidental injuries under the Act must be borne for the public good, until the Legislature provides a remedy.

4. The mere probability that injury will result from the operation of the Act will not authorize the Commission to direct a suspension.

PETITION of the Minneapolis & Northwestern Railway Company, for a suspension of the Fourth Section.

The Commission, per Cooley, Chairman, transmitted the following communication to the petitioner:

trarily, and would not willingly suffer mischief to continue, if a remedy both lawful and safe was within its power:

The fourth section of the Act to regulate commerce, as we all very well understand, was should not be charged for transportation for intended to establish the general law that more the shorter than for the longer haul over the same line in the same direction, under circumstances and conditions substantially similar. Railroad companies, including your own, had, before its passage, been accustomed in many cases to charge more for the shorter haul, judging for themselves whether the circumstances and conditions authorized or required it. Congress, in passing the Act, decided that the rule should thereafter preclude this greater charge; and in so doing it must be understood to have determined that, in its judgment, any incidental injuries that might flow from the enforcement of the general rule would be more than counterbalanced by resulting benefits.

Whatever opinion any member of the Commission may have of the correctness of this determination is of no moment now, for the Commission is as much bound by it as are the carriers of persons and property; and any questioning of it by any member would be an impertinence. The Commission, of course, does not expect to question it, but enforce it, so far as it may fall within its duty to do so. The Act, nevertheless, contemplates that there may be cases in which public interest will be subserved by suspending the general rule, so far as to except such cases from its operation. The Commission will not, at this time, enter upon a critical examination of the provision which was made for such suspension, but it may be useful to call your attention to a few considera

tions which are obvious on the face of the law:

First. It is obvious that the cases the law contemplates in which the Commission is authorized to make orders for suspension are exceptional cases; that is to say, cases whose facts which made them stand apart from the ordi

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