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Milch Cows, | bound to see that justice is done. So much Number. for that, which I will again say was quite unnecessary for my clients.
The amount of Indian corn produced in 1879 is about the same as that produced in 1849. The only leading agricultural products of which the annual production has decreased are rye, hops, wheat, cheese, sheep and wool. The decrease in the case of many of the last named articles, and especially in the case of sheep and wool, is to be attributed to circumstances other than the influence of railroads. (See Compendiums of the 9th and 10th United States Census.) ARGUMENT OF HON. GEORGE F. EDMUNDS FOR THE VERMONT STATE GRANGE.*
I shall, if it please Your Honors, occupy only a very few moments of your time in discussing this matter. First and principally, because I do not believe it necessary to you, or to the just disposition of this case; secondly, because I do believe it necessary that my honorable opponents and I should get the train and go home this evening.
Scope of the Interstate Commerce Act. Let us see where we are. This Act in its first and second sections seems to be couched
in language that is very plain to the unsophisticated mind. It appears to be intended to regulate and control, according to good methods, and consistent with justice, the operations communications connected with them. So far of interstate commerce by railways and water as it was possible for Congress, within its constitutional power, to reach every agency engaged in those transactions, it was to be exerted. The object was beneficent and the nature of the Law was intended to reach, and, so far as language can go, I think does reach every operation of interstate commerce that is carried on by no matter how many agents or connecting local lines, so that they are engaged in a continuous transmission of men or things by any "arrangement," as the Law says, between them in relation thereto. There can be no escape from the provisions of the Law by any railroad in the United States, unless it is restricted by its charter and operations to purely local state business. Every road that provides facilities for the business of connecting roads, and engages in the taking of goods out of its own State on to a railroad in another State, by any sort of communication or arrangement, or combination, or understanding, by whatever contrivance or form it is reached, comes within the scope of the operation of this Law. When the States have undertaken to interfere with the abuses and wrongs that have been committed all through the country, the supreme court, much against its wishes and will, I believe, was obliged to decide that it was within the purview of Congress alone. So that I insist the language of this Act shall be given the most liberal and benign construction, in order to work the good effects it was intended to accomplish. It is not to be construed like a criminal statute, but every interpretation and construction that can aid and reach the great object Congress had in view should be given to it. Enough for that, because I am confident I do not Your Honors will all agree with me. need to resort to any strained interpretation to apply it to this case. I only make these observations to state my views of its general purpose and effect.
First, then, as to the grangers, my clients, in respect to whom my Brother Fifield and the gentlemen on the other side have, from time to time, made observations altogether uncomplimentary, as to their being "mythical," "nonexistent persons," and so forth. All I have to say in reply to that is, that the farmers need no defense from me. They are a good deal more numerous than any other part of the people of the United States. I happened to see in a newspaper this morning an account of a meeting of 45,000 of them in Pennsylvania, the other day. There are a good many of them everywhere, though they do not all belong to organized granges, for the grangers' associations do not embrace all the farmers of the country, any more than the law associa tions embrace all the lawyers. There are a great many persons who have been admitted to the bar who do not belong to any law association; still we are supposed to be entitled to the same rights and privileges as those who are members of a law association. And the farm ers of this country, and of this State, therefore, have the same rights, whether members of the grange or not. They have the right to associate and defend their interests, the same as the railroads, the clergymen, the manufacturers, the Knights of Labor, or any other members of the community, so that I need not take up any time in vindicating them as standing before you and asking justice at your hands under the law for the classes of industry that they represent. You are here as a public tribunal of investigators, before whom any citizen, or any set of citizens, having a well founded ground of complaint, may come and state their grievances. They are entitled to be heard, and if a wrong is being done to them, you are
*From stenographic notes of John H. Mimms,
Esq., St. Albans, Vt.
The Defendant Roads Within the Power and
In this case we find certain facts sworn to by Mr. Porteous, although he seems to know a good deal less when he is on the witness stand than he does when he is off from it-as careful men sometimes do-and his superior officer, Governor Smith, seems to be affected with the same malady, unlike Mr. Mellen, who spoke fully and frankly, as did Mr. Mills, and these other gentlemen. As I said, we have the facts sworn to by Mr. Porteous, as you will see when you read over the reporter's notes, that in respect to the transmission of business between the places on the line of the Boston & Lowell Road (and by that I will include all from Boston to White River Junction,
without naming the concerns that compose it), | bans, etc.; and the reason it did not combine whether from Boston or any place between was that it had no interest in that matter. If that point and White River Junction, on busi- you take the proposition. in the reverse, the ness going into the State of Vermont, that the Boston & Lowell would have no interest whattwo roads have arranged and agreed upon a ever and could have nothing to do and would basis upon which that business shall be done have nothing to do with the question of rates and the prices which shall be paid for it; an on freight from Toronto or Detroit to Montarrangement and understanding was arrived pelier, although that would have come from a at and consummated between the agent of the foreign country to the United States. The corporation of the Central Vermont Railroad only way, on that theory of the Law, that you Company, on the one hand, and the agent of could have the fourth section operate at all the corporation of the Boston & Lowell Rail- would be between two roads in adjoining road Company, on the other, and perhaps some States who made an interchange, each agreeing of the other roads in the route, but mainly be- that it would charge as a common carrier, so tween the two I have named. That arrange- much into the other State, and would collect ment was made in advance as to what rates the carriage money and pay it over. This should be charged for that joint business, and would bring them within the operation of the the division that was to be made from the Law, I think you will be satisfied, as I certainly collection of those rates, as shown by the di- am. Take the Boston & Lowell, where Mr. vision list put in evidence. If this is not a Mellen swears they got once and a half or joint arrangement (which is more than the Law twice as much for carrying a car load of chairs requires), if it is not an "arrangement," to use from Boston to White River Junction, for use the very language of the Law, for the carriage there, as they would if the chairs were going of goods from one State into another over a to Montreal or beyond. They are hauling the common line, then there is no language that same goods over the same line in the same can be taken out of our English tongue that direction, and the same distance in one case, can accomplish it. And I leave that. That is for less than half what they get in the other. all I wish to say about that. Putting such a construction upon the business as is urged here, there is not a single road in the world, not even between two States, that would be under the provision of section 4, and could not be. But this is the position they take. It is the philosophy and dialectics of sophistry that people who feel the hand of the law and are conscious of doing injustice, resort to-as is fair for counsel if they can persuade anybody to believe it-to escape from a plain responsibility. The same is true in the reverse order. The Central Vermont will not be liable under that claim, because they have nothing to do with what the Lowell Road gets the moment you cross into New Hampshire, and the Lowell nothing to do with what the Central gets the moment the line of Vermont is crossed the other way. Neither is responsible. It is only necessary to state such a proposition to see the fallacy of it, and make an end of it. Congress has not any power over interstate commerce, if that proposition be correct.
The National Despatch Line.
But, if there being any arrangement to do that thing brings them within the jurisdiction and power of Congress, then the doing of it must be within its remedial power of prohibition. And they do it. I will call your attention to the case where the Boston & Lowell, within its own State and its own corporate boundary, makes the rates you have heard in the evidence. It does not charge any more for carrying goods to Manchester than it does to carry them to White River Junction, if it is going to stop there. Mr. Mellen tells you with entire frankness: I get twice as much for doing that thing to White River Junction as I do if it is going to Montpelier. But if it is going to be a purely local, intrastate traffic, then I do not charge any more for carrying a thing to Manchester than to White River Junc tion; but if it is going to be interstate traffic, then I fly directly in the face of the Law. Although it does not appear on my tables, yet as a matter of fact I make an arrangement by which I get twice as much for my short dis
Now, as to this National Despatch Line. That is just the same only it is done in a different form. We have learned from the evidence in this case what this National Despatch Line is. As some of the witnesses stated, it is only a name, or a trademark. But the public have never known what it really is. A well known man in this town, who is a large shipper, said to me that he had sent millions of dollars of freight out of this town by the National Despatch Line, supposing it to be a regularly organized corporation, having a body and capital and officers, and somebody to look to if there was any loss or damage to be made good. He was much amused to find that the National Despatch Line was in reality a good deal better and stronger than he supposed it was in that respect, for it had turned out to be composed of the Boston & Lowell Railroad Company, with all its goods, assets and effects; the Central Vermont, with all its goods, assets and effects; the Grand Trunk Railway and all its belongings, and a good deal better. But we find that this National Despatch Line is simply a name by which these three operating railroads transact through business together; by which they convey freight from Boston to the West, and to Montreal and East, from those places to Boston and eastern points. That brings these roads within the Act, I assume. The question, then, is simply whether, in order to bring any one of them or all of them within the fourth section of this Act, it is necessary that they should all combine in the charging of a greater rate for a shorter distance than for the longer one. If it is necessary that they should all combine, then it is clear to my mind, as my learned friend Strout says, that the Grand Trunk Railway Company has not had anything to do in respect of the charges that are to be made between Boston and West Lebanon, or White River Junction, or between Boston and White River Junction, Montpelier, St. Al
tance as I do for the longer distance of which I form a component and "arranging" part.
Excusing Circumstances and Conditions.
the master (as every man has a right to receive profit from his labor which he can sell at any price he chooses to take, or not), will be regulated according to the value of the services performed and not according to the particular circumstances of the person or the corporation who has to perform it. What right has a miller, for illustration, to charge me ten cents a bushel for grinding wheat because there is a mortgage on his mill? What right has a railroad company, like one out in Ohio, managed by Ives, to put its rates up double because double the amount of its stock has been fraudulently issued, into innocent hands, I will assume; and, therefore, to pay a profit the rates must be raised, and the public made to pay it? What right has a railroad to put up its rates above a fair value for the service performed, because the management has been extravagant or unfortunate, and got itself into debt? I deny the proposition. And I say that in less than ten years, unless the people of the United States have lost their reason, this matter will be dealt with by Congress, as far as they have the power, and you will not be troubled with any question about considerations as to competition. You will only be troubled with the question of what is reasonable according to the value of the service performed, because that stands, and can only stand upon principles that are beyond the reach of any contrivances that men may make.
Then you come to the difficulty of weather and climate. Is that an element that makes a special circumstance and condition over the same line? If I live in the tropics, where there is no snow at all, is it to be said that because it is hotter at one place on the line than it is at another point on the same line, there is a reason for making a difference in the rates to those respective points? Of course not. If I live in the Arctics, as we do here in the winter, does it cost a railroad any more to haul a But we will take it as it is. I say on the short distance through the snow and get its construction of this Law itself, fairly and justcars out of the snow banks than it does to haul ly, on the special circumstances and condiit a longer distance over the mountains in the tions, that the fact that there is competition, winter? It must costs less, under the cir- although it is the strongest that there is, is yet cumstances, for the shorter distance. The the very smallest of elements that should enter idea, therefore, that the snow or the grades into the considertion of this question. The claim has anything to do with this question of object and purpose of Congress in making use charging more for a short distance than for of that phrase was to guard against some exa longer one over the same line, is preposter-treme and possible circumstances that could ous, with all respect to the honored gentlemen on the other side.
Two Sides to the Question.
not be foreseen. It was intended that those special circumstances and conditions related to the work and the service to be done, and the relations of the parties between whom and by There are two sides to the subject of money whom it was to be done, and not the relations making and profits, it might be added. These either of the shippers to the business, or the railroads appeal to you to allow them to make railroad to its competitors, its enemies or its a fair profit, as much as they fairly and reason- friends. ably can. That is proper enough. But they But we will suppose it is not so. We will owe the same duty to their customers, and you suppose that competition is an element to be owe the same duty to their customers. The considered. Where would you find yourselves, weather is no colder for the railroads in Ver- then, upon any such competition as exists mont than it is for the farmer. It is no colder here? Here is this line, and here are the other in Vermont in the winter for the railroad, than lines in New England competing for this trafit is for the manufacturer, or the passenger, or fic; the lines from Boston to the West crossing anybody else. They are all under precisely the State of New York, or from Baltimore to the same conditions on the same line, as of to the West, from Savannah to the West and course they must be. Therefore, all those con- East and North and South. Every road can siderations fail, entering for what they are say the same thing and be excused from comworth merely into the consideration of compliance with the requirements of the Law. As petition at a distant point. an illustration of my idea, take the Passumpsic line, if that be an independent one. It will form a good basis for example because it is a parallel line to the Central Vermont in this same north country, and a competitor with the Central Vermont. If a charge were brought against the Passumpsic, that road would say: I am in competition. You must not touch me. I must charge more for the shorter than for the longer distance, because there is such a strong competition to contend against. The
Now, then, I submit with great respect, and I think it will turn out to be so in the next ten years, not upon any supposed construction of this Law that you may make, or upon any too extended a construction of it, but as a fact in the social economics of this country, resting upon justice which gives to every man his due and fair play to all, that every service that a railroad or any body else does for another under public regulations, and of which he is not
Now, then, we come to the only question in this case, that is under section 4, as to whether it is made out that the circumstances and conditions are such that you are bound to find, or ought to find fairly and justly, that these companies ought to be relieved from this duty. I will say something later upon the question under the other part of the statute. The first reason they urge as an excusing circumstance is the length of their line. I respectfully submit that the length of line over the same line over which the freight goes any short distance and long distance is no different as to these roads than it can be on any other line in the country. So that length of line only enters as one element in the matter of competition at some distant point of the system, and in no other respect whatever.
Boston & Albany could say: We are in competition with the Fitchburg. Or the Erie could say: We are in competition with the New York Central. And so every one of these corpora tions could let the other one out by the shuffling of the cards. It would be somewhat after the plan adopted some time ago by the banks in this State, by which the specie used to be circulated when the bank examiner came around. One bank would present its specie to the examiner, who would count it and certify that it was all right, and the specie would at once be hurried off to the next bank to be presented to the examiner as its specie, and so on until it had gone all the rounds.
Every railroad competes with each other; and if the fact of competition is to be an element that is to control this question, there is not a railroad in the United States which reaches out of its own State (that is probably too strong a statement) but there are not ten roads in the country that reach out of their own State. So that they could get out one after another, and all make great prices for short distances and small prices for longer dis tances at the expense of the shippers of freight, and the public. This honorable body will see the force of that, and you are not going to let these corporations, whom you were created to bring to some sense of justice and fairness among men in this country, manage to evade this law by playing off against each other and getting beyond the control of this Act in that way. It is not a special and peculiar circum-I stance and condition; it is a universal circumstance and condition in all these long haul cases, and therefore it is not one of the ideas that could have been in the minds of the law makers when they said that in peculiar and special circumstances and conditions you might be compelled to relieve a railway for a limited or unlimited time from the operation of sec tion 4.
If there is a profit in carrying a car load of corn from Detroit, or a car load of hay or any other commodity from the Canada line to the line of New Hampshire, or to Boston, or vice versa, at a rate of less than 30 cents per 100 pounds, or whatever it may be, I do not pretend to get the fractions, but an enormously less rate than is charged for the short distance, then the profits for doing that same kind of work, over the same line at the same time of year, at once and a half or double the charge, must be enormously and unreasonably large. This is demonstrable, when you look at these statements made here as to the rates and take the elements of the cost and the profit on the car service. When you find the same kind of work being done over the same line under the same circumstances, at half the rate and pay. ing the road a profit, I insist upon it, it is made out as fully as it ever can be made out in such cases as this at any time.
When it is demonstrated that there is a profit in the lower rate-the through rate-it is demonstrated that the greater rate for the lesser distance is grossly unjust. And even if the short haul rate should be brought down to the longer haul rate it would still be grossly unjust in proportion to the expense of doing the business. It is not to be wondered at that the profits of the farmer in Vermont, Ohio, Illinois, or anywhere else, are small. It is not to be wondered at that they make no profits at all; their profits are apparently somewhere else. So say that the short haul rates should at least be brought down to the basis of charge for the longer haul. That is what I insisted upon last night, and I should have been willing, as I stated at that time, in the hope of finishing this matter up for the time being, to have had this matter stand upon the rates being brought down to that basis and let the matter stop there, with liberty, after a reasonable trial, to apply to the Commission for relief. But we could fore having to go through the whole case, I innot make any arrangement about it and there
sist that on the evidence in this case what I have said and claimed as to the intrinsic unreasonableness of these rates is true, and that they would still be unreasonable, even if brought down to the long haul minimum.
Long Haul Rates for Short Distances Grossly
One word more and I am done. Upon the evidence as it stands in this case, even if these short haul rates were put down to the long haul figures, then the short haul rates would still be grossly unreasonable in fact. I say it is proved to be so by the testimony. All the facts that are put in evidence here, as to how these operations are carried on and what they get for the work they do, tend to establish the force of the statement. Governor Smith told you the cost of carrying freight per ton per mile is, on an average, four mills per ton per mile over the line complained of, taking the fast and slow trains together. He has told you about the car service, what that is and how profitable it is to the company owning the cars. The stock of the company whose cars carry this very freight, and have carried it for fifteen years pays dividends from ten down to four per cent and on a watered capital at that. Governor Smith also tells you that they make money in this long haul business, and I presume he has told, as everybody should, all that will be of benefit to his case, although he has not told you how much they in fact make out of the business.
I think that is all it is desirable to say for the merits of this case. I only wish to say in closing, that we thank you, as the other gentlemen have done, for your patience in bearing with our somewhat desultory management of the case, and with what I and my colleague have said; I say "colleague." as we have no official relations with the distinguished gentleman who represents the Boston & Albany Railroad Company. In bringing this application we are not actuated by any spirit of hostility to these roads or any others. Quite the reverse. The railway service of the United States is just as important to its welfare and prosperity as any other one of its social enterprises and institutions. But the fact that it is a very necessary element of our prosperity, and ought to be encouraged, furnishes no ground for its being granted unlimited and unjust license to oppress anybody else. That is the proposition.
REPORT AND OPINION OF THE COMMISSION.
Thereafter, on September 20, 1887, the Commission rendered its decision, with the following report and opinion (the head notes being by the Editor).
1. Where, in a proceeding against several connecting railroad companies for charging more for a short than for the long haul, one of the companies claims that its only participation in the alleged offense consisted in its sharing in the low charges on the long haul, which were not in themselves alleged to be illegal, the complaint should not be dismissed as against such company, where its interest and the liability of the low rates on long haul traffic to be affected by changes made in the higher rates on short haul traffic is so great that in case such company had not been made a party, and should ask to be made a party, it would be proper to so order. 2. Where, in a proceeding by one railroad company (here, the Boston & Albany R. R. Co.) against other companies, for charging more for a short than for the long haul, it appears that the rates alleged to be illegal are local rates; that the petitioner does not pay or participate in paying them; that they are not competitive rates to those imposed on the petitioner's road; and there is no allegation that such rates are excessive or unjust, and the sole grievance of the petitioner is that the defendant companies accept through traffic at lower rates than are made by the petitioner and its connections, such petitioner has no standing to maintain the proceeding.
Note. Following is the letter referred to on page 535 at line 20, 2d column, as in evidence:
New York, April 27, 1876. Com. Vanderbilt, President. W. H. Vanderbilt, Esq., Vice Pres't. N. Y. C. & H. R. R. R.
Gentlemen Believing that the existing difficulties in regard to the transportation of east bound traffic are not understood as thoroughly as they should be, and that these differences should be adjusted on a basis of equity to all interests, we have, through telegraphic correspondence, requested Mr. Hickson of the Grand Trunk Line, and Gov. Smith of the Vt. Central, to meet us in New York and talk the subject over, to see whether we could not arrive at some satisfactory basis of adjustment.
We believe that your shorter line between the West and New England ought to make a reasonable concession to the Grand Trunk route, which embraces that line, the Vt. Central, and other connections, owing to its location and climate, and other matters incident to it as a through route.
In order to protect and promote the interests of the various roads of the country as well as the best interests of the public, we trust you may find it to your interest to agree, if it can be arranged, to allow the Grand Trunk route the following scale of differences on east bound traffic to competitive points in New England, which are much less than those heretofore existing, and which we deem under the circumstances to be reasonable.
3. A desire to obtain a construction of the Interstate Commerce Act is not sufficient to support such proceeding.
On live stock 7c; on cut meats and perishable property 6c; on first and second class, of which there is but a very limited quantity, 4c.
The Grand Trunk to carry third and fourth class,
Looking over the whole ground it seems to us that if we can prevail on Mr. Hickson to agree to this schedule, you should agree, as well for your own interests as those of all the other lines in the country, to make this adjustment; and if it is made that the Grand Trunk route should then become one of the eastern trunk lines, and be a part of the organization for making and adjusting rates and classifications from time to time, on the general basis that has prevailed among the four trunk lines during the past year.
By adopting this policy its results must be to protect large amounts of property, owned in this and other countries, from a destruction that we think under the circumstances is not warranted; and we believe that the adjustment of this whole matter rests entirely with you.
The pending consequences, are in our opinion so serious that we must respectfully request you to give us an answer by Saturday morning of this week. If you will address your reply to us to the care of Mr. Jewett, at the Erie Railway office, we shall be glad to co-operate, to the end that an adjustment of existing and anticipated difficulties may be reached, and destructive competition be avoided. Signed,
Thos. A. Scott, Prest. Penn. R. R.
Jno. King, Vice-president B. & O. R. R. Co.