3338 CONGRESS!ONAL RECORD-SENATE.
·SENATE. · . merchant marine of the United States while in ·foreign ports etc., which was referred to the Oommtttee on Commerce. · ·' Frun.u, March 18, 1910. · Mr. BRISTOW presented petitions of sundry citizens of · Palco., Smith Center, Nat-oma, Downs, Alton, Conway Springs Prayer by the Chaplain, Rev. Ulysses G. B. Pierce, D. D. Argonia, Mulvane, and McPherson County, all in the Sta~ The Journal of yesterday's proceedings was read and ap of ~ansas, _praying for the enactment of legislation to prohibit proved. ~e m!ers~ate tra~sportation of intoxicating liquors in prohioi MESSAGE "FROM THE HOUSE. tion districts~ which were referred to the Committee on Inter A. message from the House of Representatives, by W. J. state Commerce. Browning, its Chief Clerk, announced that the House had passed Mr. SCOTT presented a petition of Ritchie Council, No. 2105, a joint resolution (H. J. Res. 172) enlarging the scope of in Royal Arcanum, of Wheeling, W. Va., praying fur the enact quiry of the schedules relating to population for the Thirteenth ment of legislation providing for the admission of _publications Decennial Census, in whlch it requested the concurrence of the of fraternal societies to the mails as second-class matter which Senate. was referred to the Committee on Post-Offices and Post-Roads. Mr. BULKELEY presented a petition -of the Ruth Wyllyis ENROLLED .BILL SIGNED. Chapter of the National Society, Daughters of the American The message also announced that the Speaker of the House Revolution, of Hartford, Conn., praying for the retention and had signed the enrolled bill S. 1864, an .act to facilitate the strengthening of the Division of Information -Of the Bureau of use for manufacturing purposes of square 328, in the city of Immigration and Naturalization in the Department- of Com Washington, as authorized in the act of Congress of February merce and Labor, which was referred to the Committee oh 1, 1907, and it was thereupon signed by the Vice-President Immigration. PETITroNs AND MEMORIALS. ;Mr. PILES presented a petition of the Seattle Ohapter of the Mr. FLINT presented a memorial of the Board -0f Trade of National Society, Daughters of the American Revolution of Redlands, Cal., remonstrating against the enactment of le<>'i,sla Seattle, Wash., praying for the retention and strengtbenin;,. of tion transferring to the several States the power to grant rights the Division of Information of the Bureau of Immigration °and of way over unappropriated public lands, which was referred Naturalization in the Department of Commerce and Labot to the Committee on Public Lands. which was referred to the Committee on Immigration. ' He also presented a petition of Arroyo Grande Council No. Mr. BURTON presented a petition of Riverside Council, No. 1375, Knights of Columbus, of Arroyo Grande, Cal., praying for 673, Royal Arcanum, of Clevel::tnd, Ohio, praying for the en the enactment of legislation providing for the admission of actment of legislation providing for the admission Qf the publi publications of fraternal societies to the mails as second.:.class cations of fraternal societies to the mails as second-class mat matter, which was referred to the Committee on Post-Offices and ter, which was referred to the Committee on Post-Offices un.d Post-Roads. Post-Roads. Mr. WETMORE ·presented a memorial of the Board of Trade He also J)resented a petition of Edward Moore Camp~ No. 41, Department of California., United Spanish War Veterans, of Qf Providence, R. I., remonstrating against the enactment of Pasadena, Cal., ·and a petition of Bennington Camp, No. 20, De legislation to .create a court of commerce, and to runend the aet partment of California, United Spanish War Veterans, pt:ay entitled "An act to regulate commerce," which was ordered to ing. for the enactment of legislation granting travel pay and lie on the table. · · commutation of subsistence to the mustered-out volunteer sol 1\1~. BURKETT presented a petition of sun.dry ex-Union diers who served in the Philippine Islands, which were referred soldiers of Tecumseh, Nebr., praying for the passage of the so to the Oommittee on Military Affairs. called " per diem pension bill," which was referred to the com He also presented a memorial of the Ebell Club, of Los An mittee on Pensions. geles, Cal., and a memorial of the Contemporary Club, of Red l\lr. BROWN presented a petition of the board of directors lands, Cal., remonstrating against the water supply of the of the North Platte Valley Water Users' Association of Ne braska, praying for th-e adoption of certain amendments to the ~etch Hetchy Valley being used by the. city of San Francisco, Cal., which were referred to the Comm1ttee on Conservation of so-called "reclamation project," which was r-eferred to the Oom National Resources. .mittee on Irrigation all.d Reclamation of Arid Lands. Mr. GALLINGER. I present resolutions adopted at a mass Mr. NEWLA.NDS presented a petition of the Trade and meeting of citizens of the District of Columbia favoring the Labor C<:>~mcil, American Federation -0f Lab-Or, of Goldfield, passage of Senate bill 5473, for the better regulation of the Nev., pra.ymg for the passage of the so-called "eight-hour bill~" liquor traffic in the District of Columbia; and also resolutions and also for the passage of the so-:called " employers' liability of the Anti-Saloon League of the District of Columbia on the bill," which was referred to the Committee on Education and same subject, together with a large number of letters froiu Labor. citizens of the District of Columbia. I move that the lette.rs Ur. BRADLEY presented a petition of Local Council No. be referred with the resolutions to the Committee on the Dis 1377, Knights of Columbus, of Maysville, Ky.~ praying for the trict of Columbia. €nactment of legislation to provide for the admission of the The motion was agreed to. publications of fraternal societies to the mail as second-ela.ss Mr. GALLINGER presented a petition -0f the East Washing matter, which was referred to the Oommittee on Post-Offices ton Heights Citizens' Association of the city of Washington, and Post-Roads. praying for the enactment of legislation providing for the in l\!r. BRA.J\TDEGEE presented a petition -of Danbury Council, corporation of the East Washington Suburban Railway Com No. 1310, Royal .Ar.canum, -Of Danbury, Conn.~ praying for the pany of the District of Columbia., which was referred to the enactment of legislation providing for the admission of publica Committee -0n the District of Columbia. tions of fraternal societies to the mail as second--class matter Be also presented a petition of the East Washington Heights which was referred to the Committee on Post--O:ffices and Post: Citizens' Association of the city of Washington, praying for Roads. the enactment of legislation extending the time for the comple Mr. CURTIS presented memorials of sundry citizens of New tion of the East Washington .Heights Traction Railway, which ton and Augusta, and of members of the Forestry Club of Oak was referred to the Committee on the District of Columbia. land, all in the State of Kansas, remonstrating against the He also presented .a petition of the Georgetown Citizens' .As water supply of the Retch Hetchy Valley being used by the · sociation, praying for the adoption of certain amendments to city of San Francisco, Cal., which wer-e referred to the Oom the bill J)roviding for the establishment of a probation and pa mittee on Conservation of National Re ources. trol system for the District of Columbia, which was referred He a.lso presented a petition of sundry citizens of St Fran to the Committee on the District of Colmnbia. cis, Kans., praying that increased pension be granted to all He also presented a petition of the Georgetown Citizens' .As the survivors of the Mexkan and. civil wars, which was referred 'Sociation of the District of Columbia, praying for the passn.ge to the Committee on Pensi-0ns. of the so-called " Gallinger-Bouten bill,'' amendatory to the He also presented a petition of sundry citizens of Kansas, .l\Iorrill Act, which was ordered to lie on the table. -praying for the enactment of legislation to prohibit the inter Mr. CULLOM presented a petition of Local Division No. 236, state transportation of intoxicating liquors in prohibition dis Amalgamated Association of Street Railway Employees of tricts, which was referred to the Committee on .Interstate America, of Alton, Ill., praying for the passage of the so Commerce. called "eight-hour bill," which was referred to the Committee REPORTS OF COMMITTEES. on Education and Labor. Mr. FLINT, from the Dommittee on Education and Labor, ·He also presented a petition of the Marine Firemen, OUers, to whom was referred the bill (S. 423) to establish in the aml Water Tenders' Benevolent Association of the Great Lakes, Department of Commerce and Labor a bureau to be known as of Chicago, Ill., praying for the enactment of legislation to the children's bureau, reported it with amendments and sub abt)lish the involuntary servitude imposed upon seamen in the mitted a report _ (No~ 417) thereon. .
1910. CONGRESSIONAL RECORD-SENATE. 33'J9
Mr. FRAZIER, from the Committee on Military Affairs, to make the request. However, I am very anxious to have its con whom was referred the bill (S. 1119) to authorize the appoint sideration concluded. It is a matter of local interest. · ment of Frank de l. Carrington as major of infantry in the Mr. PAGE. I withdraw the objection, Mr. President. United States Army, reported it with an amendment and sub There being no objection, the Senate, as in Committee of the mitted a report (No. 418) thereon. Whole, proceeded to consider the bill. Mr. WARNER, from the Committee on Military Affairs, to The amendments were, on page 1, line 3, after the words whom was referred the bill (S. 6649) for the relief of John "That any person," to insert the words "other than a corpora Gray, reported it with an amendment and submitted a report tion;" in line 4, after the words "desert-land entry," to insert (No. 420) thereon. " in Imperial County, California; " in line 6, after the word Mr. BOURNE, from the Committee on Commerce, to whom "assignment," to insert the words "at the time of transfer;" was referred the bill (S. 7021) to require apparatus and oper and on page 2, line 5, after the word "accomplished," to insert ators for radio-communication on certain ocean steamers, re the following additional proviso: ported it without amendment and submitted a report (No. 421) Provided fut·ther, That nothing herein containe~ shall be constr~ed thereon. to authorize any person to hold, ·by entry or assignment, a quantity of land in excess of the amount authorized by law prior to the passage Mr. GALLINGER, from the Committee on the District of of this act. Columbia, to whom was referred the bill ( S. 6887) for the relief of Ida A. Chew, owner of lot 112, square 721, Washing So as to make the bill read: Be it enacted etc. That any person other than a corporation who ton, D. C., with regard to assessment and payment of damages has in good f:tlth, beretofore acquired by assignment a desert-land on account of changes of grade due to construction of the ent~y in Imperial County, Cal., which entry is regular upon its face, Union Station, District of Columbia, reported it without amend in the belief that he was obtaining valid title thereto, which assign ment at the time of transfer has been accepted and recognized by the inent and submitted a report (No. 422) thereon. Interior Department as a proper transfer of such entry, shall be en titled to complete the entry so acquired: Prnvided, however, That this DESERT-LAND ENTRIES IN IMPERIAL COUNTY, CAL. act shall only apply to any person who, at the time of receiving such assignment, was without notice of any fraud , in the entry assigned, ~Ir. FLINT. I am directed by the Committee on Public or in any annual proof made concerning the same : Provided further, Lands, to whom wus referred the bill ( S. 6636) for the relief That patent shall not issue to any such assignee unless he shall affirm of assignees in good faith of entries of desert lands, to report atively· establish, by his evidence under oath, good faith and lack of it favorably with amendments, and I submit a report (No. 423) notice of fraud, and by the testimony under oath of himself and a_t least two witnesses that expenditure in the total amount and culti-· thereon. I ask unanimous consent for the immediate consid vation and reclamation to the full extent required by law have been eration of the bill. actually made and accomplished : Provided further, That nothing herein contained shall be construed to authorize any person to hold, by entry The VWE-PRESIDENT. The bill will be read to the Senate or assignment, a quantity of land in excess of the amount authorized for its information. by law prior to the passage of this act: And in-ovided further, That The Secretary read the bill. nothing herein contained shall be construed to in any manner waive The VICE-PRESIDENT. Is there objection to the present or avoid liability, on the part of the person committing the same, for consideration of the bill? any fraud or violation of the law. Mr. BORAH. Is there a report with the bill? The amendments were agreed to. Mr. FLINT. There is a very long report. The report in The bill was reported to the Senate as amended, and the cludes the testimony of the Assistant Attorney-General of the amendments were concurred in. Interior Department, who appeared before the committee. The bill was ordered to be engrossed for a third reading, read Mr. BORAH. I have no desire to object to the consideration the third time, and passed. of the bill, but one can not tell what it is from a hasty reading The title was amended so as to read: "A bill for the relief at the desk. of assignees in good faith of entries of desert lands in Imperial Mr. FLINT. I can state it in a few words. County, Cal." l\fr. BORAH. I should like to have the. Senator from Cali LAWTON AND FORT SILL ELECTRIC RAILWAY. fornia make a brief statement as to what the bill is. Mr. DICK. I report back favorably with amendments from Mr. FLINT. The bill provides that entries of desert land the Committee on Military Affairs the bill (H. R. 19628) to in Imperial_County, Cal., fraudulent in the inception, that have authorize the Lawton and Fort Sill Electric Railway Company been assigned to innocent parties may be proved up by the to construct and operate a railway through the Fort Sill Mili parties making affirmative proof that they had no knowledge tary Reservation, and for other purposes, and I submit a report of the fraud and that they have performed the work required (No. 419) thereon. I ask for the immediate consideration of under the desert-land act since the assignment. the bill. Mr. BORAH. Is the bill confined to one county in Cali The Secretary read the bill; and there being no objection, the fornia? Senate, as in Committee of the Whole, proceeded to its consid- Mr. FLINT. It is confined to one county in California. eration. · The VICE-PRESIDENT. Is there objection to. the present The amendments were, on page 1, line 6, before the word consideration of the bill? " railway," to strike out the article " a; " in line 9, after the Mr. PAGE. I should like to ask the Senator from California word "such," to strike out the words "line or lines" and insert if the bill would have the effect of making the Government "terms and in such location;" and in section 2, on page 2, line liable in case of a defective title? 5, after the word "occupied," to strike out the word "or" and Mr. FLINT. There is no liability upon the Government at all. insert " shall be," so as to make the bill read : Mr; PAGE. There is now before the Committee on Claims a Be it enacted, eta., That the Lawton and Fort Sill Electric Railway bill to make good to certain parties who had taken up lands Company, a corporation created under and by virtue of the laws of the under the homestead laws, where it appears that certain grants State of Oklahoma, be, and the same is hereby, empowered to survey, locate, construct, maintain, and operate railway, telegraph, telephone, overlapped each other and that a railroad company claiming and trolley lines through the Fort Sill Military Reservation, in Co title, having been dispossessed temporarily by the order of the manche County, State of Oklahoma, upon such terms and in such loca Department of the Interior, allowed these homesteaders to go tion as may be determined and approved by the Secretary of War. SEC. 2. That said corporation is authorized to occupy and use for all on the land. The railroad company afterwards brought the purposes of railway, telegraph, telephone, and trolley lines, and for no matter before the courts, and the Supreme Court held that they other purpose, a right of way 50 feet in width through said Fort Sill were entitled to the land. The result is that we are now Military Reservation, with the right to use such additional ground where cuts and fills may be necessary for the construction and main asked to pay a large bill because those homesteaders have tenance of the roadbed, not exceeding 100 feet in width, or as much been ejected by the railroad company. thereof as may be included in said cut or fill: Provided, That no part I should like to know if this bill does not possibly bring us of the land herein authorized to be occupied shall be used except in such manner and for such purposes as shall be necessary for the con within the scope of a liability which will make us hereafter struction and convenient operation of said railway, telegraph, telephone, subject to some claim on the part of those who have title to and trolley lines ; and when any portion thereof shall cease to be so the land. used such portion shall revert to the United States: Provided further, That before the said railway company shall be permitted to enter upon Mr. FLINT. It bears no relation to that matter at all. This any part of said military reservation a description by metes and bill provides that where a desert-land entry was fraudulent in bounds of the land herein authorized to be occupied or used shall be its inception and afterwards assigned, the person who accepted approved by the Secretary of War: Provided further, That the said railway company shall comply with such other regulations and condi that assignment and had no knowledge of the fraud may prove tions in the maintenance and operation of said road as may from time up and obtain a patent. It has nothing to do with the character to time be prescribed by the Secretary of War. of claim the Senator speaks of. SEC. 3. The right to alter, amend, or repeal this act is hereby ex Mr. PAGE. I do not quite understand why a law which is pressly reserved. designed to affect some particular locality should be taken up The amendments were agreed to. under the pressure of a request of this kind and forced through The bill was reported to the Senate as amended, and the without knowledge regarding its provisions. amendments were concurred in. l\II'. FLINT. I have no objection, if the Senator desires that The amendments were ordered to be engrossed and the bill the bill shall go over. If he wishes to have it go over he can to be read a third time.
( . 3340 CONGRESSIONAL RECORD-SENATE. MARCH: 18,
· The bill. was read the thirdl time ana passed. .. By Mr. GORE:- Tbe title was amended so asi to read: c'.A.. bill to authorize A bill (S. 7263J to. divide the eastern and western. districts the Lawton and Fort Sill ElectriC' Railway Company to- con of· Oklahoma: into three divisions, ta fix. the time and place~ of strn.ct and operate a railway, telegraph,. telephone, and! trolley holding court therein~ and for 0ther purposes; to the Committee lines through the Fort Sill Military Reservation, and :for oth€r on the Judiciary. purposes.u By Mr. BURKETT:- Mr. DICK. The bill just pasS'ed is. precisely the same as A. bill ( S. 7264) providing for the redemption of a certain Senate bill 5905, which was passed by the S€nate on the. 25th United States gold certificate, the originaJ of which was acci of February.. I move that the Honse of Representatives I>e dentally destroyed by fire (with an accompanying paper};. to requested to return the trill f() the Sena1:e. the- Committee on Finanee. The motion was. agreed to. By Mr. WETMORE: Mr. DICK. I enter a mo.tion to reconsidel!' the votes by A bill ( S. 7265) granting an increase of pension to Ransom which Senate bill 5005: WaS'. ordered to a third reading and Kenyon; to the Committee on Pensions. passed. AMENDMENT TO LE LATIVE, ETC., APPROPRIATION BILL. BILLS INTRODUCED, Mr. CURTIS submitted an amendment providing that h~re· Bills were introduced, read the first timer and, by unani after the Sercetary of the Interfor shall be authorized to des mt'>us consent, the- second tim.e-,, and referred as follows :. ignate an officer or employee of' the Office of Indian Affairs to By Mr. DILLINGHAM: act temporarily as Assistant Commissioner of that ofHce during A bill (S. 7244) authouizing the Takoma Springs Ice Com the absence of the Assistant Commissioner, etc., intended to be pany to lay a pipe. line under certain streets and roads in. the proposed by him to the 1-egislative, etc., appropriation bill, which District of Columbia, ancl for other purposes; to· the Committee was referred to the Committee on Appropriations and ordered on the District of Columbia. to be printed. By Mr. CULLOM~ ORDER: OF BUSlNESS.. A bill (S. 7245} granting a pension to FraRds M. Walker~ to the- Committee on. Pensions.. Mr. HALE. Is the morning bri.siness concluded? A. bill ( S. 7246-) granting a right of way· to the Milwaukee, The VICE-PRESIDENT. The consideration of the morning · Sparta and: Northwestern Railway Company.. a subsidiary com business is not yet concluded. pany of the Chicago and Northwestern Railway Company, Mr. HALE. At the conclusion of. the morning l>usiness, in stead of g-oing to the calendar, I shall ask the Senate to proceed across the military reservation. ~United States artillery target to the consideration ot the railroad bill, as the Senator from range and maneuver grounds) near- Sparta1 'Monroe County, Wis.; ta the Committee on Mllita.cy A.ffaira.. Iowa desires to go on, and not wait until 2 o'clock. Mr. NELSON. l\Ir. President-- By Mr. GALLINGER~ A bill (S. 7247) to amend an act entitled ".An act" to- provide Mr. HALE. I will wait tmtil the end of the morning busi for the better registration of billths in the District of (Jzy!um ness, of course. 1 the bia, and for ofue pm:poses,' appro-ved March 1, 1907 Ewith an. Mr. NELSON. I trust Senator will yield to me to call up accompanying paper); to the Commtttee on the District of Co a little· local bill to extend the time for the building of a dam. lumbia. The time is out now,. and it is important that the bill should be By Mr. NELSON: passed immediately. A b.ill {S. 72'48) prohibtting the :printing ot certain. matter on l\fr. HALE. . I shall not interfere with anything of that kind, stamped e.n:velopes and the sale thereof ; to- the Committee on_ but when the morning· business is over and such bills are dis Post-Offices and Post-Roads. posed of I shall then ask the Senate to proceed with the unfin· By Mr. McCU.MBER: ished business. A bill ( S. 7249) to permit citizens of the United States to be, Mr. NELSON. Very well. . admitted: to government tuberculosis hospitals;. to the Committee AMENDMENT TO BIVEB AND HA..R1JOB BIIL. on Commerce. • I Mr. SHIVELY submitted an amendment providing for» the By ~fr. BURROWS: construction of a waterway from Chicago· to Toledo by the most A bill (S. 7250}. providing for the erection of a public bml.d dir.ect and feasible route, connecting tlle waters of Lake Michi ing at the city ot Three Rivers~ Mich.~ ta the Committee. on gan and Lake Erie, intended to be proposed by him to the river Public Buildings and Grounds. and harbor appropriation bi:ll, which was referred to the Com· By Mr~ BURNHAM~ ittee on Commerce and ordered to be printed'. A bill (S. 7251) far the relief of John H. Dawe; to the Com:. REVISION OF LAWS-JUDICIARY TITLE. mittee on Claims. Mr. HEYBURN. I ask unanim.Qus consent for a reprint of By Mr. SHIVELY: part 1 and part 2 of Senate Report No. 388. There is- a clerical A bill (S. 7252) granti.Eg an annuity to- John R. Kissinger; to1 mistake in 'it that is important, and it is at the to-p· ef every the Committee on Pensions. left-hand page. I ask unanimous consent that the report. be By lli. SIMl\IONS: reprinted.. A bill (S. 7253) for the relief ot L. A. Garner,. administrator· There being no objection, the orde:r was reduced to writing of Samuel 0. Garner, deceased (with an accompanying paper),; a:nd ag.Jl'eed to, as follows: A bill { S. 7254) for the relief of Ben Pigott (with an accom- 0-rd.eredi That Senate Rep:ort No. 388, parts 1 and 2. ":Re-visicm of panyf:ng paper) ; and lawSr--Judieiacy title," be. reprinted with coL'rections.. A bill ( S. 7255) for the relief ot George Jerkins (with an PELAGIC SEALING. accompanying paper}~ to the Committee. Mr. DIXON. Under the circumstan.ces :r will not oppose The PRESIDING OFFICER. Th~ absence of a quorum is the request. suggested. The Secretary will call the roll; The VICE-PRESIDENT~ The Chair hears no objection, and The Secretary called the roll, and the following Senators the order is entered as requested. answered to their names: Borah Crawford Gore Purcell SELECT COMMITTEE ON WAGES AND PRICES OF COMMODITIES. Bourne Cullom Guggenheim Root Mr. SIMMONS, I wish to ask to be relieved from further Brandegee Cummins- Hale Scott Bristow Curtis Hugh.es Shively service upon the Select Committee on Wages and Prices of Bulkeley Depew Jones Smith, Md. Commoditie . I make this request both because I have not Burkett Dixon Kean Smith, Mich. the time and because of the condition of my health. Burrows du Pont La Follette Smoot Carter Elkins Martin Stephenson The VICE-PRESIDENT. Is there objection to the request Chamberlain Fletcher Page Sutherln.n.d of the Senator from North Carolina? The Chair hears none, Clapp Flint Percy Warner and the Sena tor is excused from further service upon the Clark, Wyo. Frazier Perkins Wetmore committee. Clay Galliuger Piles THE COMMITTEE ON CLAIMS~ The VICE-PRESIDENT. Forty-seven Senators have an Mr. PAGE was, on his own motion, excused from further swered to their names. A quorum of the Senate is present. service upon the Committee on Claims. [The speech commenced by Mr. CUMMINS on March 15, con Mr. KEAN submitted the following resolution, which was tinued on March 16 and 17, and concluded. to-day, is here printed in full.] considered by unanimous consent and agreed to : ' Resolved, That Mr. BRADLDY be appointed to fill the vacancy in the Tuesday, March 15~ 1910. Committee on Claims. rirr. CUl\IJ\IINS. Mr. President, the bill under consideration MISSISSIPPI RIVER DAM AT SAUK RAPIDS, MINN. proposes certain additions and amendments to the several stat Mr. NELSON. I ask unanimous consent for the consider utes which, . ta.ken together, are popularly known as the inter ation of the bill ( S. 6693) to amend an act entitled "An act state-commerce law. In the authority of Congress to regulate permitting the building of a dam across the Mississippi River and control common carriers, there lies a greater power to pro at or near the village of Sauk Rapids, Benton County, Minn.," mote the general welfare than can be found in any @ther pro approved February 26, 1904. vision of the Constitution. For twenty-three years the Federal The Secretary read the bill, and, there being no objection.. Government has been attempting to protect the people against the Senate, as in Committee of the Whole, proceeded to its excessive and discriminatory charges for interstate transporta consideration. . tion. After each attempt experience speedily disclosed fatal The bill was reported from the Committee on Commerce weaknesses in the legislation adopted. The act of 1906 has with amendments, on page 1, line 8, after the word "void," shared the fate of all its predecessors, and we are now con to strike out the words " all rights acquired under the same fronted with the imperative and important duty of strengthen forfeited; " on page 2, line 2, after the word u . arnl,'' to strike ing the interstate-commerce law so that it may accomplish ·the out the words " such construction continued with and the objects which are univeTsally accepted as the proper objects to dam; " in line 3, before the word " date," to strike out " the " be attained. and insert 0 that;" and, after the word "date," to strike out My chief purpose in addressing the Senate at- this time is to the words " last mentioned/' so as to make the bill read : analyze the measure that has been reported by a majority of Be it enacted, etc., That section 3 of an act entitled "An act permit the Interstate Commerce Committee from the standpoint of the: ting the building of a dam across the Mississippi River at 01~ near the minority report presented by the junior Senator from Minnesota. village of Sauk Rapids, Benton County, Minn.," approved February 26, 1904, be, and the same is hereby, amended so as to read as follows: [Mr. CLAPP] and myself, and to propose such amendments tO' " SEC. 3. That this act shall be null and void unless the constr.uetion the bill as will, we hope, make it a.n effective instrument o:f of the dam herein authorized I>e commenced on or before the 1st day regulation; but, in view of the extraordinary circumstances. of July, A. D. 1910, and completed within two years from that date." which surround the bill, and of my intent to comment upon th& The amendments were agreed to. relation which ought to exist between the executive and legisla The bill was reported to the Senate as amended, and the tive branches of the Government with respect to legislation, I amendments were concurred in. believe it to be my duty to· inquire into the origin of the bill, 'l'b.e bill was ordered to be engrossed for a third reading, read and to trace its evolution into its present form. the third time, and passed. This bill is not the product of any Senator or of any Membei: WEYMOUTH FORE RIVER, MASSACHUSETTS. of the House of Representatives, and it has ne..ver been con l\Ir. GALLINGER. I ask for the consideration of Senate con siC:ered by the Interstate Commerce Committee of the Senate current resolution 26, providing for a survey, to which there in the sense in which it is the obligation of every c.ommittee will be no objection. of the Senate to consider a bill before it is reported. Accord There being no objection, concurrent resolution 26, reported ing to the unchallenged reports of the public. press. certain gen yesterday from the Committee on Commerce by Mr. BOURNE, tlemen, namely, the Attorney-General, the Solicitor-General, was read, considered by unanimous c.onsent, and agreed to, as the Secretary of Commerce and Labor, two members of the In follows: terstate Commerce Commission, and a Representative in Con Senate concurrent resolution 26. gress, met in New York on the 30th day of August of last Resolved by the Senate (the Ho1ise of R·epresentativea concurr·ing), year to consider and put in the form of a. bill the views which That the Secretary of War be, and he is hereby authorized and di the President of the United States had at various times ex rected to cause an examination to be made of Weymouth Fore Rivei: below the Quincy Point Bridge, Massachusetts, with a view to straight .pressed with regard to amendments o-f the interstate-commerce ening and improving the channel, and to submit estimates for such law. This supervisory and unofficial commission, I will assume improvements as may be deemed necessary. acted under the invitation or command of the President. ' HOUSE JOINT RESOLUTION REFERRED. The result of its labors, while bearing date September 2, did House joint resolution 172, enlarging the scope of inquiry not, in fact, come into the hands of the President, as I have been of the schedules relating to population for the Thirteenth De informed, until about November 10. I have seen the report ot cennial Census, was read twice by its title and referred to the these pioneers of the present bill Indeed, I have a copy of Committee on the Census. it on my desk at the present moment. It was printed for the confidential use of the President, but it quickly became public COURT OF COMMER.CE, ETC. property, and was in the hands of the railroads even before it Mr. HALE. I ask unanimous consent to proceed to the con reached the President. Remember that I suggest no want of sideration of the unfinished business, the railroad bill. good faith in this, because a public measure of such sort ought There being no objection, the Senate, as in Committee of the to be in the hands of those who are to be a.ffucted by it. I do Whole, resumed the consideration of the bill (S. 6737) to create not intend to refer t-0 it at thi.s point further than to say that, a court of commerce and to a.mend the act entitled "An act to were it not for the birthmark of the commerce court~ which has re!mlate commerce," approved February 4, 1887~ as heretofore distinguished the bill in all its stages,. the gentlemen who sat amended, and for other purposes. upon the matter in New York would not be able to recognize in Mr. CUMMINS resumed the speech begun by him on Tuesday the bill which finally emerged from the Attorney-General's last. After ha.ving spoken for nearly two hours, office, and which passed through the committee without con Mr. PURCELL. Mr. President-- sideration or amendment on February 25, the measure that was The PRESIDING OFFICER (Mr. BRISTOW in the chair). born in the dog days of the year before. Does the Senator from Iowa yield to the Senator from North With the return of the President from his western tour on Dakota? November 10 the campaign began,. and between that time and ~ Mr. cu:mnNs. I do. January 11, that being about the day upon which the bill came, Mr. PURCELL. I desire to suggest the absence ot a quorum. from the Attorney-Gen.era! to the chairman of the Interstate 3342 CONGRESSIONAL RECORD-SENATE. . MARCH 18, Commerce Committee for introduction into the Senate, nearly no member of the committee had read it, nor had any member of every important railroad president in the United States visited the committee had a chance to read it. In addition to the Washington and was heard by the President and the Attorney- amendments that had been brought to our attention by the sev General in opposition to certain features of the proposed bill. era! representatives of commercial organizations, water lines, Some of them were heard not once, but twice and thrice. Dur- and the Interstate Commerce Commission, I had before me a ing the same period and before the same tribunal representa- number of amendments which seemed to me essential and which tives of the shippers were also heard. are, in a general way, outlined in the minority report. Mark you, I do not complain of the appearance of the rail- I speak of this simply that Senators may all know that this road presidents to urge objections to the passage of any law bill is here, not only without a maker, but without a guarantor that will affect the business and property which they represent; or indorser. It is afloat in the channels of legislation without and if the President and the Attorney-General are to prepare any of the guaranties which usually smround bills when they bills which Congress is to pass simply because the executive come before the Senate for consideration. I am not criticising branch of the Government wants them passed, then it was emi- the committee. I am suggesting these things only that I may nently appropriate that the hearings upon the present bill have a fair field in the argument I am about to make, unim should take place before the men who were to decide what the peded and unobstructed by any imaginary consideration of the bill should be. It is, however, a significant fact that in the bill by the members of the committee. hearings held by the Interstate Commerce Committee of the In addition to these various amendments of which I have Senate no railroad man, save one, had a word to say either spoken, presented by shippers, civil organizations, commercial for or against the measure, although they filled up the com- organizations, by steamboat and by steamship lines, and by the mittee room ey-ery day given to the hearings. The single excep- Interstate Commerce Commission, as I said, I bad prepared cer tion to which I have referred was an appearance by the general tain amendments which seemed to me ought to become a part of counsel of the Rock Island Railroad, who contented himself the bill; but it did not so transpire. with an argument against the constitutionality of that section After a statement by a prominent and influential member of of the measure which pmports to regulate the capitalization of the committee that it was useless to consider the bill at all or to railroads. l\fy protest against the course of this bill is not because the take up for discussion any of the changes which had been ear- railroad men were heard, but because they were not beard in nestly tnsisted upon by those who had appeared before us, but the proper forum. Between the 10th of November and the day that the thing to do was to report the bill for passage exactly as it came from the pen of the Attorney-General, a motion was upon which the bill left the hands of the Attorney-General for made that instructed the chairman of the committee to introduce the hands of the distinguished Senator from West Virginia that morning the last revise of the Attorney-General (which at many and radical changes were made; and so far as 1 can the time no member of the committee had read) have it referred now recollect substantially every change was made to remove to the committee, and then report it without change of any kind an objection urged by the railroads. As I proceed I shall point for passage. This is the history of the bill No. 6737, now be-. out these changes; but just now I am dealing with the unfor- f th s tunate practice which the history of this bill has disclosed. ore e enate; and if the uncontradicted and repeated and ap- parently authorized statements of the newspapers be not in The Senate does not know and never can know what the error, every Republican, at least, is expected to vote for it just arguments or showings were that led to these changes. I am as it is, unless he dares to incur not only the executive dis very far from imputing any improper motive to either the pleasure, but banishment from the Republican ranks. President or the Attorney-General. I assume that they be- lieved that they had good reason for yielding to the impor- I do not speak of this phase of the bill in a spirit of anger. tunities of l!!"cse representatives of the railways; but I de- 1 am ~onscious. 0~ no other sentime~~ than profound regret. I plore the introduction of a custom which leads those who de- r~o~mze that it is 1;1°t onJy the privllege, but .the duty, of. the sire to influence legislation to the White House rather than to I President of th~ Un~t~ States to ~ake such recommendations the committees of Congress. If these railroads had appeared to Co~gress a~ m !tis J?d~ment wil~ be~t pr2mote the. gene:aI before us, what they said and what they presented would have ~elfar:. ~e is. qu~te withm both his pnvile"'es and his du.ties been preserved and laid before the Senate, and such weight ~ expressmg h!s views upon such subJects as ofte~ as. h~ lik~s could now be given to their facts and their arguments as they ~.as emph~.tically as he pleases. Whether he is. withm his deserve· but as it is we have a bill modified in the most im- P!'Inlege or ~is du~ w~en he undertakes to prescribe the pre- ' . ' . . c1se form which legislation shall assume may well be doubted portant resl?ec~s _upon then· demand and do not know their His great predecessor evidently thought that executive propri: reasons for rnsisting 1:1P0 n t~e ~emand. . . ety did not permit it, for when he was dealing with the same Those of 1;JS who still mamtam some a~Imratioi;i for th~ G With the utmost respect for the exalted office oi President ent ia w speaks ·and of which our experience will tell us some- of the United States and for him who occupies it at the thing of importance. · present time. I record my protest here and now against a prac The Hepburn law, popularly so known, went into effect, as tice which I believe to be full of danger and disaster. I remember, on the 30th of June, 1906. It has therefore been l\fr. President, with these preliminary observations, which the law of the United States nearly four years. How many I have felt impelled to make, I pass now to a consideration Of cases -do you think have arisen under these four classes, com the measure itself. Before I take it up specifically, I desire to prising all the jurisdiction which the new court is to acquir~ say for it that it has much in it that is good; much in it that how many cases do you think have arisen during that time'? marks a real step forward in the regulation of our common I did not content myself with the conclusions that I might de carriers. duce from tb.e reports -0f-the Interstate Commerce Commis ion I am not moved by any spirit of antagonism to this bill, and UIJOn this subject, but addressed myself, in order that I might I profoundly hope that those pari::s of it which are good will be absolutely accurate, to the Interstate Oommerce Commission b~ preserved, but that those parts of it which mark a step itself, and I have in my hand a list of all the cases that have backward in the effort which Congi-ess has for twenty-three arisen in these four years under the four classes which I have years been attempting in behalf of the peop1e of the United just mentioned, and over which this new court will have juris States will be eliminated from it. I have said what I have said diction, if it is created. These cases number 29 in a11, and all largely in order to secure from the .Senate a fair and impartial of them, save one, arose under the second paragraph which I hearing, unprejudiced, as I suggested a few moments ago, by read to the Senate. the assumption that the members of the Interstate Commerce There are practicaTiy no cases since the Hepburn law went Committee, broad minded, loyal, patriotic, intelligent men as into effect brought by the Interstate Commerce Commission to they are, have given to this bill in all its details and in all its enforce its orders. The penalties attached to disobedience of the particulars that consideration which committees ordinarily law are so severe that railway companies do not wait for the give to bills before they are reported. United States, or wait for shippers or persons interested, to The first six sections of the bill create a new court in the bring suit for the enforcement of an order of the commission ; United States, to be called the United States court of commerce. but if the railways bel.Jeve the commission is acting without These sections not only create the eourt and endow Jt with authority, they institute suits to set a~ide, annul, restrain, or jurisdiction, prescribe for it a practice, but equip it with the enjoin the order of the COID.lilission, and therefore it is exceed usual and ordinary retinue of officers as well. It is a court ingly u..rµikely that in the fµture there will be suits arising to be composed of five circuit judges. They -are. in the first under any of these paragraphs save the second one_, and 28- instance, to be appointed by the President of the United States Mr. CRAWFORJ). Mr. President-- in the usual way. These are fiV"e new circuit judges, so that The PRESIDING OFFICER -(1\!r. KEAN in the chair). Does number is added to the present judicial force -0f the United the Senator from Iowa yield to the Senator from South Dakota? States. The five men originally appointed constitute in the Mr. CUMMINS. In just a moment. -And 28 out of the 29 first instance the court of commerce. One of them is to re cases begun in the last four years did arise under the second main a member of the court of commerce for five years, one paragraph, which I have already read. I now yield to the of them for four years, one of them for three years, one of Senator from South Dakota. them for two years, and another for a single year. Then, as the term of service of each of these judges expires in this particular l\lr. CRAWFORD. Mr. President, from the. Senator's wide experience, I think he will be much more competent to express court, he retires to the general body of :the circuit judges of the an opinion about the matter than I, and .that is the reason I United States, and another is ~elected or designatro by the Chief Justice of the Supreme Court to take his place. Each inquire as to this proposition. If this proposed law should be of these judges has, during his service UIJOil the court of com -enacted, I under.stand from reading it that it will extend the merce, an addition to the ordinary salary of a circuit judge power of the Interstate Commerce Commission so that upon of $3,000 per year. This, I assume, is to compensate these its own initiative it will inquire into complaints and make or judges, who are to sit in the main i:n the city of Washington, ders affecting classification and -Orders of regulation of rates for the high living, high· prices, high rents, and high functions that are not the result of some specific complaint. .As to for which the city of Washington has become famous. whether that additional power would enlarge and increase the I object to the creation of an additional court of this char number of cases and the expense of litigation is a matter that acter. I object to it, 1irst, becaus.e it is unnecessary. If the came in my mind and upon which I should Uke to hear from present judicial force of the country is not sufficient to do the the Senator. business of the country, then we ought to add to that judicial Mr. CUMMINS. Mr. President, I feel deeply obliged to the force directly; but although I believe it to be true that there are Senator from South Dakota for the suggestion he has just some parts of the land in which our circuit judges are fully made. It is only fair in connection with this subject to con occupied and have business en-0ugh to tax all their energies and sider-and I would have reached it, I think, in a moment-that consume all their time, there are other parts of the United this proposed law does enlarge the power of the Interstate Com States in which the office of district and circuit judge affords at merce Commission, d-0es allow it to proceed in investigation of least abundant opportunity for that leisure and recreation so rates and classification upon its own motion. I can not believe, necessary to the maintenance of happiness and good health. however, much as I approve that enlargement of power of the . I object to it because the cases over which it is to have. juris commission-and, indeed, I shall present to yon, I hope, before diction have not been in· the past, and will not be in the fubrre, I have finished persuasive and conclusive reasons for still fur sufficient in number to warrant the institution -0f such a tri ther enlarging the power of the Interstate Commerce Commis bunal, and, in order that I may place this point squarely before sion-I can not believe that the number ol orders that will be Senators, I must be permitted to read from the bill that part made by the commission under the new power, if you please, of it which confers jurisdiction upon this new tribunal. It is that we propose to grant to it will be greater than in the past, to have jurisdiction over all cases of the following kinds: because the commission has industriously and energetically First. All ca.ses tor the enforcement, otherwise than by adjudication gone forward to the investigation and the decision of every and collection of a forfeiture or penalty or by infliction of criminal case submitted to it, and the cases that have been submitted punishment, of ·any order of the Interstate Commerce Commission other the than for the p.ayme:nt of money. . to it upon complaint of some .Person or corporation or or Second. Cases brought to enjoin, set aside, annul, or suspend in ganization interested in the rates nave consumed the entire whole or in part any order of the Interstate Commerce Commission. time of the Interstate Commerce Commission. Third. Such cases .as by section 3 of the act to farther regulate com merce with foreign n ations and among the States, approved February This leads me to remark -that if we are going to increase the 19, 1903, are authorized to be maintalnea in a circuit court of the officers of the United States, if we are to give anybody help in United States. the .administration of this law, it is the Interstate Commerce Fourth. All such mandamus proceedings as under the proVisions of section .20 or section 23 of the act to regulate commerce, approved Commission which needs to be enlarged and strengthened February 4, 1887, as amended, are authorized to be maintained in a rather than the courts. Therefore I answer the Senator from circuit court of the Unit ed States. South Dakota by saying that, i:n my judgment, the number of These are all the ca ses as at present known to the law over cases brought in the future will not be greater than in the past, which this new court, composed of five circuit judges, is l:o haYe and, on the contrary, I believe that the number brought in the jurisdiction. I will remark a little later in my argument upon future wi11 be fewer than the number brought in the past, and a new, novel., and €Xtraordinary kind of lawsuits which are cre for this reason: Senators will all remember the famcms debate ated.by this bill, and concerning which this eourt is given ':Juris which occurred in this Chamber in 1906 respecting the jurisdic diction; but ·as we have never had ·any such lawsuits in the tion that ought to be giyen to a court to .review the order or or United States, and I hope that we never will· have any Such ders of the eommission. There were some who were in favor of lawsuits-for I can not conceive that the Senate will create a a broad, general power of review-in substance, the right to a 'nrisd.iction of that kind-I limit my argument at the present retrial ·upon the ·m·erits of· cases decided by ·the commission. , moment to the four classes of cases concerning which the pres- Others were in favor of a narrower x>.ower of review that would 3344 CONGRESSIONAL RECORD-SENATE. liARcn-18, limit the jurisdiction of the courts to the constitutional point. 7. N. Y. C. & H. R. R. R. Co. et al. 11. I. C. C. (Banner Milling case) : August 22, 1908, bill filed in circuit court southern district of The language used in the act of 1906 was not so specific and New York; October 20, 1908, case submitted ; October 20, 1908, in certain as it might have been, and therefore for a period there junction denied. was some llifference of opinion with re.gard to the power of the 8. D., L. & W. R. R. Co. 11. I. C. C. (Rahway Valley case): August 7, 1908, bill filed in circuit court southern district of New York; Octobe r 20, courts over the orders of the commission. 1908, case submitted; October 20, 1908, preliminary injunction granted; But gradually that difference of opinion has disappeared, for November 16, 1908, order granting injunction issued; February 22, 1910, case submitted in Supreme Court on appeal; March 7, 1910, finally a case reached the Supreme Court of the United States lower court affirmed. which involved a construction of the law in that respect. While 9. So. Pac. Ter. Co. et al. 11. I. C. C. et al. (Eichenberg case) : Au possibly I shall refer to it again, I now call the attention of gust 13, 1908, bill filed in circuit court fifth circuit southern district of Senators to the case of the Interstate Commerce Commission v. Texas; November 9, 1908, submitted on motion for preliminary injunction; November 19, 1908, injunction denied; December 7, 1909; submitted on Illinois Central Railroad Company, decided at the present ses agreed statement of facts; December 23, 1909, final decree dismissing sion of the Supreme Court, in which the court prescribed the bill and cross bill. limits of power on the part of all the courts, and said, in sub 10. M. K. & T. Ry. Co. et al. 11. I. C. C. (Cattle Raisers' case) : Sep tember 30, 1908, bill filed in circuit court eastern division eastern dis stance, that the courts had this jurisdiction, and no other, over trict of Missouri; October 13 and 14 argued; October 23, 1908, injunc orders of the commission: First, to inquire whether the com tion denied; March 22, 1909, to July 22, 1909, testimony taken; Octo mission had proceeded in accordance with the law to obtain ber 27, 1909, submitted. (No decision to date.) 11. Wells, Fargo & Co. 11. I. C. C. (Forwarding case) : October 13, jurisdiction over the parties who were before it. Second, to 1908, bill filed in circuit court southern district of New York; October ascertain whether the order entered was within the power con 26, 1908, case reopened .bY commission. ferred by the Congress of the United States. That is to say, 12. D., L. & W. R. R. Co. et al. 11. I. C. C. (Export Shipping cases) : October 15, 1908, bill filed in circuit court southern district of New whether the discretion which the commission had exercised, and York; November 9, 1908, submitted; November 30, 1908, preliminary which it was given the right to exercise, by this legislation, injunction granted (appeal taken to Supreme Court of the United had been so abused, so disregarded, that there had been an in States) ; February 28, 1910, submitted in Supreme Court. (No de vasion of the constitutional right of the common carrier to hold cision to date.) 13. U. P. R. R. Co., N. P. Ry. Co., and G. N. Ry. Co. 11. I. C. C. (Pa its property until it was taken from it by due process of law. cific Coast Lumber cases; three cases) : October 1, 1908, bills filed in Therefore when these limits are understood, as they will be circuit court third division district of Minnesota ; October understood in the future, some of the cases which have been 20, amended bills filed; November 17, 1908, amendment to amended blll filed; Apdl 27, 1909, testimony concluded. brought, if they were to be again brought by those who con 14. c., R. I. & P. Ry. Co. et al. 11. I. C. C. (Burnham-Hanna Munger sidered them, would, I am sure, never be instituted, and I case): October 17, 1908, bill filed in circuit court northern district of think that this gradual narrowing of the power of the courts Illinois, eastern division; October 31, 1908, submitted ; November 6, 1908, temporary injunction granted ; April 20, 1909, motion to dissolve to interfere with the orders of the commission will much more injunction argued and submitted; June 23, 1909, argued and submitted than compensate for the additional cases in which orders may on application for finai decree ; August 24, 1909, injunction made per be entered by the commission in proceedings instituted upon its manent (appeal by commission to Supreme Court of the United States) ; February 21, 1910, case set for argument on April 4, 1910. own motion. 15. Peavey & Co. et al. 11. U. P. R. R. Co. and I. C. c.· (Peavey Ele Therefore I think it is fair, Senators, to assume that in the vator Allowance case) : October 21, 1908, bill filed in circuit court west ern division of western district of Missouri; January 24, 1910 sub- four years to come there will not be more than 28 or 29 cases mitted ; March 3, 1910, injunction granted. ' brought over which the court of commerce, as organized in 16. Di1Ienbaugh et al. ti. I. C. C. (St. Louis Elevator cases) : De this bill, would have jurisdiction. That means something like cember 16, 1908, bill filed in circuit court western division of western di!'itrict of Missouri; January 24, 1910, submitted ; March 3, 1910, in seven or eight cases in a year. This court will impose upon junction granted. the people of the United States an additional burden of not 17. c., M. & St. P. Ry. Co. 11. I. C. C. (Flint & Walling case) : Janu less than $100,000 per year. It may possibly be more, but not ary 26, 1909, blll filed in circuit court eastern division of northern dis less than that sum. We ought not to add to our judicial force trict of Illinois ; April 13, 1909, submitted ; April 13, 1909, bill dis missed. and impose this additional burden unless it is necessary, and · 18. C., M. & St. P. Ry. Co. 11. I. C. C. (Cardiff Coal case): March 31, there can not be a Senator here or an intelligent thinking man 1909, bill filed in circuit court northern district of Illinois, eastern will division; April 19, 1909, substitute bill filed; April 21, 1909, submitted anywhere who assert that it is necessary to establish a on application for preliminary injunction. court composed of five eminent judges to dispose of seven or 19. C., M. & St. P. Ry. Co. 11. I. C. C. (Red Wing case): April 29 eight cases in a year. 1909, bill filed in circuit court northern district of Illinois, eastern division; July 2, 1909, answer filed. t~at I ask, Mr. President, the reply of the secretary of the 20. C., B. & Q. R. R. Co. et al. 11. I. C. C. (Kindel case): May 18, Interstate Commerce Commis~ion, setting forth the number of 1909, bill filed in circuit cou~t northern qistr!ct of Illlnols, eastern cases which have been brought under these four paragraphs division ; June 23, 1909, submitted on appl~cabon for preliminary in junction ; June 30, 1909, temporary restraining order issued; August since June 30, 1906, be printed as a part of my remarks. 24:, 1909, preliminary injunction granted (appeal by commission to The PRESIDING OFFICER. The Chair hears no objection United States Supreme Court) ; February 21, 1910, case set for argu to the request of the Senator from Iowa, and it is so ordered. ment April 4, 1910. 21. N. P. Ry. Co. ti. I. C. C. (Portland Gateway case) : May 24, The matter referred to is as follows: 1909 bill filed in circuit court district of Minnesota ; May 30, 1909, All cases for the enforcement otherwise than by adjudication and submitted on application for preliminary Injunction; June 5, 1909, tem collection of a forfeiture or penalty or by infliction of criminal punish porary restraining order issued (appeal to Supreme Court) ; February ment of any order of the Interstate Commerce Commission other than 23 1910, submitted; March 7, 1910, lower court affirmed. 22. C., R. I. & P. Ry. Co. 11. I. C. C. (Greater Des Moines case) : Au for the payment of money. gust 18, 1909, bill filed in circuit court northern district of Illinois, Since the amendments of 1906 there have been no cases which would eastern division; August 20, 1909, petition for rehearing before com come under this classification. Cases brought to enjoin, set aside, annul, or suspend in whole or in mission filed; August 27, 1909, commission extended order to October part a.ny order of the Interstate Commerce Commission: 20 on condition that the Rock Island dismiss its bill, bill dismissed; 1 D., L. & W. R. R. Co. v. I. C. C. et al. (Preston & Davis case) : October 14, 1909, bill refiled, commission having denied petition for re June 15 1907, bill filed in circuit court southern district New York; hearing; November 15, 1909, demurrer filed to bill. 23. P. &. R. Ry. Co. et al. ti. I. C. C. (Big Vein Coal case): Septem June 11: 1907, submitted; August 10, 1907, injunction denied. (No ber 23, 1909, bill filed in circuit court eastern ·division of Pennsylvl:!- appeal.) . . nia; November 1, 1909, argued and submitted on demurrer and appli 2 Stickney et al., receivers, v. I. C. C.: May 8, 1908, bill filed m cation for preliminary injunction; November 22, 1909, demurrer sus circuit court, district of l\Iinnesota ; May 28, 1908, submitted; June 30, tained, bill dismissed. 1908, tem:porary injunction granted; July 16, 1908, appeal to. United 24. Thompson Lumber Co. v. I. C. C. : September 22, 1909, bill filed States Supreme Court by commission; November 29, 1909, decision of in circuit court northern district of Illinois, eastern division; November lower court affirmed. 23, 1909, demurrer filed. 3. C. & A. R. R. Co. and I. C. R. R. Co. v. I. C. C. (two cases) : 25. Russe & Burgess et al. 11. I. C. C. : September 22, 1909, bill filed, June 1,_ 1908, bill filed in circuit court northern d.istrlct of Illinois; June in circuit court northern district of Illinois, eastern division; November 11, 19u8, submitted; June 30, 1908, interlocutory decree granting in 23 9 junction ; July 9, 1908, appeal to United States Supreme Court by 2J. ~· ge~~J~rif.l~: Co. 11• I. c. C. (Baer Bros. case): December • commission ; October 15, 1909, submitted; January 10, 1910, lower 24, 1909 bill filed in circuit court district of Colorado, at Denver; Jan court reversed, commission sustained. uary 25,' 1910, preliminary Injunction denied. 4 B. & O. R. R. Co. v. I. C. C. (Rail and River case) : July 22, 1908, 27. L. & N. R. R. Co. 11. I. C. C. (New Orleans Board of Tra~e case) : bill filed in circuit court district of Maryland, at Baltimore; September January 19, 1910, bill filed in circuit court for the western district of 22, 1908, submitted ; September 23, 1908, injunction denied; December Kentucky; February 21, 1910, submitted. 14, 1908, argued on merits in circuit court of appeals, fourth circuit, 28. Omaha & Council Bluffs Street Ry Co. et al. 11. I. C. C.: February Richmond, Va.; divided court, case certified up; October 17, 1909, sub 28 1910 demurrer and answer mailed; (blll filed about 5th of Febru mitted in Supreme Court ; December 6, 1909, case remanded with in ary) (circuit court for the district of Nebraska) ; March 2, 1910, sub- structions to conform to the law. mitted. · 5. So. Pac. ·co. et al. v. I. C. C. (Willamette Valley case): July 24, Such cases as by section 3 of the act to further regulate commerce 1908, bill filed in circuit court ninth circuit northern district of Cali with foreign nations and among the States, approved February 19, 1903, fornia; September 29, 1908, submitted on demurrer; September 30, are authorized to be maintained in a circuit court of the United States. 1908, demurrer sustained ; October 1, 1908, amended bill filed; October 1. United States of America ti. C. I. & L. Ry. Co.: :rune 18, 1907, bill 2, 1908, resubmitted ; October 3, 1908, injunction denied by divided filed in circuit court for the northern district of Illinois ; May 11, 1908, court; case certified to . Supreme Court of United States; October 13, submitted; July 15, 1908, injunction granted; October 1, 1908, appeal 1909, aubmitted ; December- 6, 1909, case remanded with instructions. taken to Supreme Court of the United States. 6. N. Y. C. & H. R. R. R. Co. et al. ti. I. C. C. (Hecker-Jones case) : All mandamus proceedings as under the provisions of section £() or August 22, 1908, bill filed in circuit court southern district of New section 23 of the act to re~ate commerce, approved February 4, 1887, York ; December 7. 1908, submitted ; February 8, 1909, injunction de as amended, are authorizea to ·be maintained in a circuit court of the nied. United States. There hav:e been no cases under this clause. 1910. CONGRESSIONAL RECORD-SENATE. 3345 l\Ir. SUTHERLAND. :Mr. President-- four years-when the bill was filed, when the pleadings there The PRESIDING OFFICER. Does the Senator from Iowa after were filed, when the case was submitted, and when it was yield to the Senator from Utah? decided. I now ask to have printed as a part of my obserra Mr. CUMMINS . . Certainly. tions upon this subject the report of Mr. Edward A. Moseley, sec Mr. SUTHERLAND. The Senator from Iowa has stated, as retary of the Interstate Commerce Commission, of all these cnses. I understand, that the Supreme Court has held that the power I will read one of them at hazard, that the Sena tor may see of the courts to review decisions of the Interstate Commerce about how they are disposed of. I think it is true that more Commission was limited substantially to two questions; first, than one-half of all the cases of which I have spoken were de whether the Interstate Commerce Commission has proceeded termined upon demurrer or upon an agreed statement of facts, within its jurisdiction, and second, whether or not the decision although I do.not assert that the proposition I have just named rendered by th(} Interstate Commerce Commission is confis is accurate, because I have not examined the record with re catory. Am I correct about that? gard to that point. But I will.take a case which ls well known. Mr. CUMMINS. It is not stated with entire accuracy, Mr. I ~otice before me the case of A. B. Stickney and Charles President. In order to be absolutely precise and to advise the H. F. Smith, receivers of the Chicago Great Western Railway Senator from Utah in the very language of the Supreme Court, Company et al. v. The Interstate Commerce Commission. I beg to read the opinion of that tribunal upon the question This is known in the annals of the commission as the Chicago just mentioned: Live Stock Terminal Charge case. The bill was filed on the Beyond controversy, In determining whether an order or the com 8th day of May, 1908; the answer was filed on the 28th day of mission shall be suspended or set aside, we must consider, (a) all It relevant questions of constitutional power or right; (b) all pertinent May, 1908; the brief was filed on the same day. was argued questions as to whether the administrative order ls within the scope and submitted on application for preliminary injunction on of the delegated authority under which it purports to have been made; the same day. On the 30th day of June, a month and two days and (c) a proposition which we state independently, although in its essence it may be contained in the previous one, viz, whether, even afterwards, an interlocutory decree granting a temporary in although the order be in form within the delegated power, nevertheless junction was issued. On the 16th of July it was appealed to it must be treated as not embraced therein, because the exertion of the Supreme Court of the United States. On the 18th day of authority which is questioned has been manifested in such an unrea sonable manner as to cause it, in truth, to be within the elementary January of the year following, 1909, a motion to advance it rule that the substance, and not the shadow, determines the validity under the statute was made. It was argued and submitted in of the exercise of the power. (Postal Telegraph Co. v. Adams, 155 October, 1909,' and on the 29th day of November, 1909, the de U. S., 688, 698.) Plain as it is that the powers just stated are of the essence of Judicial authority, and which, therefore, may not be cision of the lower court was affirmed. I may say that this curtailed, and whose discharge may not be by us in a proper case is a fair sample of these cases. avoided, it is equally plain that such perennial powers lend no support I desire to incorporate the paper in the RECORD. whatever to the proposition that we may, under the guise of exerting judicial power, usurp merely administrative functions by setting aside The PRESIDING OFFICER. The Chair hears no objection a lawful administrative order upon our conception as to whether the to the request of the Senator from Iowa. administrative power has been wisely exercised. The paper referred to is as follows: Mr. SUTHERLAND. It is somewhat difficult to Interpret INTERSTATE COMMERCE Co:~n.nssIOY, the language of the Supreme Court,. from the simple reading of OFFICE O'F THE SECRETARY, Washiiigton, March 12, 1910. the decision, but, as 1 follow it, it seems to me I have substan Hon. ALBF.ItT B. CUMMINS, . tially stated what the Supreme Court has held-that the juris United States Senate, Washington, D. 0. diction is limited to these two questions. The question I wanted DEAR SENATOR CuMMrNS: To more fully inform you in relation to to ask the Senator from Iowa is this: He has given us a list of the matter about which you made inquiry, I am sending you herewith 29 cases that have arisen since the act of 1906; how many of a memorand!-lm 1!1 regard to the suits brought to annul the orders of the commi~s10n srnce the passage of the Hepburn law. This memoran those cases would fall within these classes-and these classes dum contams no more cases, but it is more complete than that which only-which the Supreme Court now holds to be within the I sent you yesterday. jurisdiction of the court? Would all of theni or only a . part of With great i;egard and respect, E. A. MOSELEY. them? l\fr. CUMl\IINS. While I do not profess to be familiar with SUITS BROUGHT TO ANNUL THE ORDERS OF TH:rn° COM:l\IISSION SINCE THE every circumstance of these cases and all' the detail of the testi PASSAGE OF THE HEPBURN ACT, JUNE 29, 1906. mony in them, I take it that 'a gooill:y proportion would fall COMMISSION NO. 732. within the rule stated by the Supreme Court; that is to say, United States circuit court, eastern division of the eastern district of would be dismissed upon the application of the rule just an Missouri, at St. Louis. Missouri, Kansas and Texas Railway Company et al. v. Interstate nounced by the Supreme Court. Commerce Commission (Cattle Raisers' Association case) : September The members of the Interstate Commerce Commission, or 30, 1908, bill filed to annul order of commission requiring carriers to some of them, as I understood the testimony of the chairman reduce their rates on cattle in carloads and to cease exacting a terminal charge at Chicago in excess of $1 per car; October 13, 1908, answer of the commission, believe that four or five possibly of these filed ; October 13 and 14, 1908, argued and submitted on application for cases, of the 28-and there are but 28 of the kind you are now preliminary injunction ; October 23, 1908, injunction denied ; October discussing-that four or five of these cases would plainly and 21,· 1908, fifty-seven days taking testimony-9,700 pages; October 21-27 obviously be so oppQsed to the rule announced by the Supreme 1908, inclusive, seven days arguing case; briefs filed for defendant con: Court that they would not have been brought, and that the taining 179 pages ; no decision to date. other 23 or 24 would have been brought, even though the rule COMMISSION NO. 687. announced by the Supreme Court had been well recognized in United States circuit court, western district of the -ioestem district of the circuits at the time the suits were instituted. Did I cor Missou1·i, at Kansas Oity. rectly catch the import of the remarks of the Senator from F. H. Peavey & Co., Omaha Elevator Company, and Midland Elevator Utah? Company v. Union Pacific Railroad Company and Interstate Commerce Commission (Peavey Elevator case) : October 21, 1908, bill filed to Mr. SUTHERLAND. The Senator from Iowa has answered annul order of commission, requiring these elevator a.Ilowances to be the question I propounded to him. As I understand, probably discontinued; November 12, 1908, answer filed for Union Pacific Rail some twenty-three or twenty-four cases have arisen since the road Company; December 8, 1908, answer of commission filed; November 8, 1909, cross bill of Union Pacific Railroad Company filed ; set for act of 1906 which would have come within the jurisdiction of oral argument at St. Louis, Mo., January 24, 1910, to be heard with St. the court of commerce if we had had such a court in the past. Louis Elevator cases; January 24, 1910, argued and submitted; March Now, let me ask the Senator another question. Of course the 3, 1910, decree granting permanent injunction. · length of time that a court may be occupied with litigation is not entirely· determined by the number of cases. Can the Sena COMMISSION NO. 929. tor give us any idea as to the character of these cases, as to United States circui~ court, southern division of New York, at New their importance, as to how long the court would naturally be York City. Delaware, Lackawanna and Western Railroad Company v. Interstate occupied in considering the cases, because the Senator will Commerce Commission, Eugene S. Preston and David F. Davis, doing agree with me, I think, that sometimes a court may be very business under the firm name of Preston & Davis (Preston & Davis Oil busily occupied with half a dozen cases of a given character Delivery case) : June 15, 1907, bill filed to annul order of commission re quiring said company to resume oil delivery to Preston & Davis at the and would not be occupied any more busily with a hundred Brooklyn terminal; July 17, 1907, answer filed; July 17, 1908, argued cases ot an entirely different character. and submitted on application for preliminary injunction; August 10, - Mr. CUMMINS. I recognize the discriminatjon which the 1907, injunction denied. No appeal taken. Senator from Utah very justly makes, but fortunately I have COMMISSION NO. 939. provided myself for that contingency as well. A. B. Stickney and Charles H. F. Smith, receivers of the Chicago Not wholly content with the report of the Interstate Com Great Western Railway Company et al. v. Interstate Commerce Commis merce Commission, through its ·secretary, which I have just sion (Chica.1ro Live-Stock Terminal Charge case) : May 8, 1908, bill filed to annul order of commission requiring carriers to desist from exacttng a sent to. the desk, ~ have been furnished ail,other report whicll $2 terminal charge at Chicago; May -28, 1908, answer filed; May 28, gives in detail the history ot every case brought in the last 1908, brief filed, 47 pages; May 28, 1908, argued and submitted on ap- XLV-210 3346 CONG-RESSIONAL RECORD-SENA.TE. MARCH 18, ~llcation. for preliminary injunction; lune 30, 1908,. interlocutory.. decree COMMISSION NOS. 1239; 1:240, 1241, 1263; AND 1267. granting· temporary injunction.; July 16; UW8, appeal to United· States Supreme Court. by the commission; January 18, 1909·, motion. to: ad United S:tat:es: circuit court, wes.tern. divisio.n of the toe8Tei·n. district of vance;: October. 12.. 1909, argued and submitted;- No-vember 29, 1909, Missouri, at Kansa& Oity. decision of lower coui:t. uifu:med ·H.arry J. Difl'enbaugh et al. v. Interstate Commerce Commission (St. LoulS Elevator cases.) : December 16, ~908, bill filed to annul order of commision requiring· the Chicago, Burlington. and Quincy Railway Com COMMISSJON. NO 951~ pany et. a1·. to cease and desist from giving or paying elevator allow United,. States ci1:cuit c.ourt~ northern d I COMMISSION NO. 1331. and Leadville, Colo., In the place of a 45-cent rate a 30-cent rate in con nection with the transportation of beer shipped from St. Louis, Mo., by United States circuit court, northern district of California, ninth way of I;eadville, Colo., to Pueblo; December 24, 1909, bill filed; Janu circuit, at Ban Franciaco. ary 20, 1910, answer filed; January 25, 1910, preliminary injunction Southern Pacific Company and Oregon and California Railroad Com denied. pany v. Interstate Commerce Commission (Willamette Valley Lumber case) : July 24, 1908, bill filed to annul order of commission requiring earners to reduce their rates from green fir lumber and lath from the COMMISSION NOS. 1310, 1313, A..~D 1328. WUlamette Valley points to San Francisco and bay points from $5 Unitetl States circuit court for the western district of Ke1itucky, at per ton to $3.40 and $3.65 per ton, respectively • September 251 1908, Louisville. demurrer filed to bill; September 28, 1908, argued and submittea; Sep Louisville and Nashville Railroad Company v. Interstate Commerce tember 30, 1908, demurrer sustained; October 1, 1908, amended bill Commission : Bill to enjoin the enforcement of an order of the com filed ; October 1, 1908, demurrer filed to amended bill ; October 1 and 2, mission requiring the Louisville and Nashville Railroad Company to re argued and submitted; October 3, 1908, court announced that it was duce certam of its class rates ; January 19 1910, bill filed ; February unable to agree as to whether demurrer should be sustatned ; under the 17, 1910, answer filed; February 21, 1910, argued1 and submitted. law the case was certified to the Supreme Court; preliminary injunc tion denied; January 18, 1909, motion to advance to Supreme Court; October 12 and 13, 1909, ai·gued and submitted; December 6, 1909, COMMISSION NO. 1004. Supreme Court remanded case to circuit court with instructions to con Circuit court of the United States, district of Nebraska, at Omaha. form to the law; January 31, 1910, argued and submitted in circuit Omaha and Council Bluffs Street Railway Company and Omaha and court on blll and answer and record before commission. Council Bluffs Railway and Bridge Company v. Interstate Commerce Com mission (West End Improvement Club case) : Bill to annul an ordoc of COMMISSION NO. 1351. the commission requiring petitioners to reduce from 15 to 10 cents the fare for transportin~ passengers by street railway from Council Blu11's, UnitePhiladelphia and Reading Railway Company et al. v. Interstate Com merce Commission (Big Vein Coal case) : September 23, 1908, bill filed been in operation about four years. Can the Senator tell us, to annul order of com.mission requiring carriers to reduce t heir rat es on approximately, how many of these 28 or 29 cases arose during big vein coal frorn Georges Creek Basin and Elk Garden region to basis the first, the second, the third, and the fourth year, so that we of little vein rate when water borne outside the capes and also to rail line points in Pennsylvania, New Jersey, New York, and New England; may have an idea as to whether litigation of this class is in October 4, 1908, demurrer filed ; November 1, 1908, argued and sub creasing? mitted on demurrer and preliminary injunction ; November 22, 1909, Mr. CUMMINS. I do not recall the number of cases br't'ught demurrer sustained and bill dismissed. No appeal taken. ' in each of these years. It is of course to be assumed that some time must have elapsed after the passage of the law of 1906 COMMISSION NO. 2010. before there was an opportunity to bring such cases. But I United States circuit cour t for the dist rict of Ooloraao, at Denver. believe it to be true that more than half of all these cases ha>e The Denver a.nd Rio Grande Rallroa.d Company v. Interstate Com merce Commission (Baer Brothers case) : Bill to annul an order of the been brought within the last year and a half, if that be the commission requiring the carriers to put in force between Pueblo, Colo., particular point in the mind of the Senator from Utah. 3348 CONGRESSIONAL RECORD-SENATE. MARCH 18, l\fy objection :Just snggested is that it is tinwise and impolitic ted just such an amendment. For reasons which it is not neces to create a special tribunal for the trial of railway cases. It sary for me now to state, the Attorney-General withdrew this is just as important to the honor of the administration of the amendment, and it does not appear in the bill before the Senate. law in our country that the people shall have unbroken and It does appear in one of the reprints of the committee which I unbounded confidence in the judgments of the court as it is have before me. It does appear in the last bill introduced in that those judgments shall be i1ght and true; and if you create the House of Representatives, and it is there now under con a tribunal commissioned only for the trial of railway cases, sideration by the committee of the House; but it is not here. selected as this tribunal originally is to be, and recruited as I can not think that factional pa sion has run so wild, has this tribunal is to be from time to time, I predict that, whether become so ungovernable, tha.t after the question has been raised right or wrong, the people of this country will lose that un by eminent men and after the doubt has been set afloat with swerving and un:t'altering faith which they have heretofore regard to the proper construction of this bill, the Senate will reposed in their judicial tribunals. decline to make it as certain and specific as the mother tongue I do not know whether the tribunal will be disposed toward can make it. the railways or whether it will be disposed toward the com The only reason for keeping it out is to nourish, encourage, mission and the people, but I do know that any judicial tri and possibly realize the hope that there is in this bill language bunal appointed or selected for the purpose only of adjusting which will give the court the power to practically retry ca es or determining disputes between the great railway companies that have been decided by the Interstate. Commerce Com.mis ion, of the country and the people of the country will be subjected and in this insidious and circuitous way accomplish what all to that suspicion which naturalJy arises in the human heart. the power of the railroads exerted in 1906 was unable to accom You can not subdue it: you can not overcome it. plish. Again, I am opposed to it because of the influences that So, Senators, I pass from this part of the bill, and I now will necessarily surround the selection of the judges. I agree send to the desk an amendment, which I will propose at the that the President of the United States is as fa1· removed from proper time, and which I ask to have printed and laid upon the these influences as mortal man can be; I agree--or, at least, I table. hope-that every succeeding President will be so removed; I The PRESIDING OFFICER. Does the Sena.tor desire to know that the honor and the integrity of the Supreme Oou-rt have it read? of the United States and its distinguished Chief Justice are Mr. CUMMINS. I desire to have it read. without blemish; but when you remember that this tribunal Mr. BACON. I should like to ask the Senator a question. is to weigh the fortunes of all the people of the United States I may have misunderstood him. Do I understand the Senator in their controversies with railway companies; when you re to say that while this bill was pending in Congress, an amend member that the railway companies surround the Government ment was written by an officer of the Government, not a 1\fem of the United States in all its functions and in all its branches ber of Congress, and that upon his motion it was engrafted as pervasively as tlie atmosphere surrounds those who breathe upon the bill, and subsequent to that time, upon his motion, it tt; when you remember that there are ~ountless channels was stricken from the bill? I thought the matter of amend 1hrough which these great corporations exercise their power; ment as well as the orlginal-.introduction of a bill was exclu I warn the Senate of the United States not to create a tribunal sively for Congress. Did I understand the Senator correctly? of this character, having jurisdiction only of a special, limited Mr. CUMMINS. Mr. President, no; not with exactitude. class of cases, upon the one side of which will always be the The Senator possibly was not here in the earlier part of my tremendous power of the railway corporations of the United remarks. I was attempting to give the history of this bill as it States. passed through the committee. I spoke a moment ago of amend ments in the committee, not in Congress. I repeat, if it be For these two reasons I believe that the commerce court proper for me to do it, that this bill while pending before the ought not to be established. But if it is to be established, I committee was rewritten at least three times by the Attorney believe we ought at least to reduce its number to three. Three General, and the committee printed from time to time the re judges can do all the judicial work that will be imposed upon visions of the Attorney-General. In one of those revisions there this tribunal and still have much time for individual refiec occurred the provision to which I have just referred, but after tion and leisure. But I will not enlarge upon that phase of it, wards, for some reason satisfactory to himself, in making the because it seems to assum~ that we are to have a commerce final revision which was reported by the committee in the court, and I will not believe that we are to have it until a manner I have attempted to descrilre heretofore, that particular majority of the Senators have so decreed. provision was omitted. · Next in the order of my discussion arises a question which Mr. BACON. Well, .!\Ir. President, I do not think I misunder concerns the jurisdiction of the commerce court. stood the Senator. I possibly was not felicitous in attempting :Mr. ORAWFORD. Do I understand that the Senator has to suggest to him what my understanding was. Of course I submitted an amendment? do not wish to interrupt the Senator in the line of his argument; Mr~ CUMMINS. Yes, sir; I will, as I pass through, submit I simply wish to know if I correctly understood the Senator. amendments. · Of course the work in committee is a part of the work of the There is a questio~ Mr. President, with regard to the juris Senate. I wish to know if I correctly tmderstood the Senator diction which is to be conferred upon the court of commerce. that the Attorney-General, while th~ bill was in committee, I recall ou again to the great argument of four years ago- wrote into the bill amendments, and then upon his motion took the great debate between the broad review and the narrow re them out of the bfil. and that the committee reported the bill view, and it is an important and material inquiry-whether this in the shape in which he thus changed it. bill enlarges the power of the commerce court with respect to Mr. CUMMINS. Urr President, of course the Attorney-Gen the classes of cases over which it is to have judicial power. eral did not amend the bill. He could not amend the bill in I do not, as a lawyer, assert that the bill as it is now before the strict and accurate sense of those words. What I said was the Senate does confer any greater power over the orders of that he rewrote the bill from time to time and there seemed the Interstate Commerce Commission than the circuit courts to be no question in the committee that whatever he incorporated now possess. But there are lawyers, and good lawyers, who be in it should be accepted by the committee and it was hoped, I lieve that it does. think, by the Senate. If I may be permitted, I want to do the Attorney-G~meral, Mr. BACON. I do not think I misunderstand the Senator. who is the author of this bill, the justice of saying that when In other words, the committee was plastic in the hands of the this was called to his attention, while he said that it was not Attorney-General and the biil was equally plastic, and he molded his purpose to give greater jurisdiction to the court of com it as be saw fit and put on it anything he saw fit; and the com merce than the circuit court now have, yet in order to remove mittee accepted it and took it off whenever he saw fit, the com the doubt whieh had been snggestecl by a lawyer who appeared mittee being equally acquie cent. before the committee, and nggested also by the cha.irman of · Mr. CUMMI.l~S. I think the Senator has caught the idea. the Interstate Commerce Commission, he was quite willing and The PRESIDING OFFICER. The Secretary will read the glad to interpose an amendment thnt would put that subject amendment sent to the desk by the. Senator from Iowa. beyond any dispute what oeyer; and thereupon he wrote into The SECRET.ARY. Amendment to be offered to Senate bill 6737 the bill an amendment or p ropo.;:ed amendment which declared by Mr. CUMMINS : in unequivocal, unmistakable terms that the jurisdiction of the ' Strike out of the title of the bill tn the first line thereof the following commerce court O\er the orders of the commission was not to be words: "Create a court of comme1·ce and to." greater, other, or different than the jurisdiction now exercised Strike out, beginning with the word "that,' in line 3, page 1, to ana by the circuit courts. inclu.dlng the word "transfer," in line 5, page 13. The chairman o:f the Interstate Commerce Commission had The PRESIDING OFFICERr The ~roposed amendment will before that time in the open bearings of the committee submit- be printed and lie on the tablew 1910., CONGRESSION.AL1RECORD-SENATE. 3349 Mr. CLAY. Mr. Pre"Sident; I did not exactly catch the Sen its histony- as- it passed. tlirough: Congress,. and then it may well a±or'i idea just now. Do I understand the Senator tu say that be held: that Congr.ess intended· ta· confer additional power upon the bill' as: i:epocted from_ tha Committee on, Tuterstate Com:. the court of cGillmerce--and to· give· it the authority. to practtcally meree as it now appears, the bill which fias a- favorable report retry the cases decided by the Interstate Commerce Commis and which we- ar:e. dlscuss:lng, there is: nu prov.ision confining. sion. the court to the question. as- to whether or not the rata fixed Mr. 0RAWFORD. If the Senator wfil permi.t me right in by the commission was a reasonable. and a just one. As I this connection, r should like to hear the Senator's amendment understand the. act which we passed. in 1906, it was· intended r.ead in· connection with what he has juat said~ The proposed to be a narrow or· a restricted. review, and the only- question amendment goes to· that point, does it not? left for the: court to decide is- whether or not the: rate fixed: Mr. CUMMINS-.. The amendment that has been read does not was a confiscatory rate, that is, a rate in violation of the Con go to that paint. stitution of; the· United States. Now, the Supreme Court has l\Ir. ORA WFORD. Very well; I did not notice it carefully, construed the- act of 1!>06. hut I thought that was the amendment. Do I understand the Senator to say that this bill, which he Mr. CUMMINS. I was. ahout to return_ to the- point from is discussing- on. a fa.yorable report from the Committee on which I digressed~ The amendment that has just. been read Interstate Commerce, is intended to enlarge the jurisdiction strikes out all the. provisions of the bill creating the. United of. the court in regard to the question of review· and to· enable States court of commerce, and. Ieaves- this law, so fa.r. as the the court to determine the whole question to retry the case~ trial of cases brought to suspend and set aside or annuI the o~ whether the bill will simply confine the new: court to the orders of_the colilIDiBsion, precisely as it now is. It strikes out question involved whether it is a. r.easonable and just rate as of the title all reference to the court,. and then. strikes out the pr.ovided by the Constitution..? first six sections of the hill, which create the court and equip it Mr. CUl\IMINS. Mr. President, the Attorney-General, whu with officer_s_ and endow it with jurisdiction. But I wlll come to drew this bill, said that it was- not his intent to enlarge the the amendment in a moment to which the Senator from South jurisdiction of. the court. over the orders of ·the commission and Dakota [Mr. CRAWFORD] refers. as I stated.a.few moments ago, I do not assert that·it does. On I propose a further amendment I do not ask that it shall. be the contrary, if I were deciding the matter ae a judge, if I read, but I ask that it shall be printed· and lie on the. table, to were interpreting the law as it came from the hand& o:f the be offered hereafter to the bill. By: thi.s amendment it is- in .Attorney-General, I would be compelled to hold that it does not. tended, if tlie evil. fate overtakes us and this court is established, L say thiS in order to be absolutely frank and candid. that its number shall be· reduced to three,. so that we may have But the. very. moment the bill became public, those who were as little ourden as possible ))y the way of increased expendi interested in. the. subject-matten and who came before the com tures. mittee upon the days of its open hearings expressed the belief The amendment was- ordered to be printed and to.. Ile on the that it did enlarge the powers: of th0' court over. the orders of table, as follows : tlie. commission, and ~ractically empowered or- authorized the Strike out of line· 2.4, page 2, the word"" five" and insert "three." court of commerce to retry on the merits-the cas:es that had been Strike out of line 2, page :r, the word " five<" and insert " three:" d:ecided by the commission. Strike out of line 4; page 3, the. word; " tlve" and insert"" three." ~trike out of line 6, page 3, the comma after: the word " three:; '' The chairman of the Interstate· Commel!ce Commission, fully also strike out- the word " fOur" with the comma after the same and finbued with that fear and that opinion, came before the com the words "and five," and insert the word "and" after- the. word "two." mittee, and, expressing his app:r.ehension in that regar~ sug In line 1, page 4, strike out the word "five" and insert the word gested an amendment that I may well read to you in order that "three." it may be clear: Strike out of line .13, page 4, the word " four " and insert the word Mr. FLIN'.V. Mr. Presiden.t-- "two." '.Dhe PRESIDING OFFICER. Does the. S.enator from Iowa Ml:. . CUMMINS. Now, M.r. President, I come to the point just l:leld t-0 the: Senator from California:.? made. Mr. CUMMINS. I do. Mr. BORAH. Mr. President-- 1\fr. FLI!N'l!. May Y. ask-the Senato-r what is the particulu The PRESIDING OFFICER. Does the Senator from Iawa language iill the bill that. the chairman of the Interstate Com yield to. the Senato:ii from Idaho? merce CGillmission· thought. woul~ give.-· thi.s. increased iurisdic Mr; CUMMINS. I do. tion? Mr• . BORAH... I. do· not want to· interrupt· the Senator's course Mr. CUM.MINS. I did not cross-examine the chrrirman of the of discussion, but-bef'ore leaving the commerce court let me ask· lnterstate Commerce.: Commissfon upon that point.. It seemed him if it is his-purpose to discuss the jurisdiction of.. that court tu me so cleu that wben any intelligent and reascma:ble• man un A.t the present time it any railroad company desires to set CLAPP], who has joined me in this minority report, at the present aside, annul, restrain, and enjoin the order of the commission time is or ought to be as a citizen interested in proceedings it brings its suit in a circuit court of the United States and that affect his State. I, as a Senator from Iowa, am interested makes the Interstate Commerce Commission the party defend in proceedings that affect my State. At this moment there is in ant, and the Interstate Commerce Commission defends its own progress before the Interstate Commerce Commission a suit or order. It defends the suit; and the almost universal practice proceeding which involves the right of St. Paul, of Sioux City, of the commission is to call to its assistance the attorneys who of Omaha, of Kansas City, and of other shipping points adjacent have appea:red for the complainant or the complainants in the to the Missouri River. The Interstate Commerce Commission proceedings before the commission, who have demonstrated will one of these days enter its order, and it it awards the relief their knowledge of the case and their capacity to manage and that is sought by the men who are in business in the State conduct it by having secured from the commission a favorable from which I come, then it will force the railroads to bring result. their suit in the court of commerce to enjoin that order. Then What does this bill propose? It proposes not only that all it all passes over to the Department of Justice, and it will be such suits shall be brought in the new court of commerce, but for the Attorney-General, in the first instance, to examine the that they shall be brought against the United States eo nomine; case and ascertain whether, in his judgment, the Interstate that the notice shall be served not only upon the Interstate Commerce Commission acted wisely, acted appropriately and Commerce Commission, but upon the Department of Justice, did justice to the people of my State or injustice to the people and that the Department of Justice alone is entitled to appear of Minnesota. 1 in any such suit for defense. The Interstate Commerce Com I am amazed that it is proposed by any reflecting person that mission is not only impliedly but expressly forbidden to take a review of that kind shall be permitted in the administration any part or interest in the succeeding litigation. of a law of this character. The Interstate Commerce Commis Mr. ELKINS. Will the Senator from Iowa allow me to in sion is but a committee of Congress. It has no judicial func terrupt him? tions whatever that are not exercised day after day by the The PRESIDING OFFICER. Does the Senator from Iowa committees of Congress. Would you permit some other depart yield to the Senator from West Virginia? ment of the Government, would you permit the Attorney-General Mr. CUMMINS. I do. to say whether an act of Congress-because that is what an Mr. ELKINS. Do I understand the Senator to say that the order of the Interstate Commerce Commission is-to say universal rule or custom is to employ complainant's counsel or whether an act of Congress shall be defended or not defended? the counsel of shippers before the commission in the trial of I can imagine, if Minnesota were represented by some other complaints as to unreasonable rates and charges? Senator less patriotic ana less impartial, what would occur in Mr. CUMMINS. I said " almost universal." the Attorney-General's office when the suit to which I have Mr. ELKINS. Will the Senator allow me merely to have just referred should come within the jurisdiction of the De read the precise facts upon that subject from the Interstate partment of Justice. Minnesota would be compelled to try Commerce Commission, which will fully answer the Senator? her case with Iowa in the first instance in the office of the· l\Ir. CUMMINS. I have no objection to the reading. Attorney-General if he believed-and I am not imputing to him The PRESIDING OFFICER. The Secretary will read as any disposition to do aught but his duty-but if he believed that Minnesota was right and Iowa was wrong, then he would requested. not defend and could not in conscience defend the suit that had The Secretary read as follows : been brought to set aside the order which had been entered by lNTERSTA.TE COMMEI!CE COADfISSION, the commission. · Washington, March 15, 1910. The Senate spent months four years ago in determining the Hon. s. B. ELKINS, United States Senator, Washington, D. 0. character of the review which should be permitted by the courts, MY DEAR SENATOR: In reply to your communication of the 14th in- and yet by a single stroke of the pen in this bill it is proposed to convert the Department of Justice into a court of review st~, :x:~1i:ai?o~a~i cases instituted in court to enjoin enforcement of the commission's orders shows that in 4 of the 31 cases the com without publicity, without appeal, without redress of any sort mission employed attorneys who had represented complainants in the whatsoever. The proposition is shocking to me, and I believe proceedings before the commission; in 8 other cases complainants, in will be repelled by the great majority of the people whose for proceedings before the commission, were represented in the trial of the cases before the courts, but without compensation by the commis tunes are involved in the correct, effective, and adequate admin sion · and in the remainder of the cases the litigation has been con istration of this law. ducted exclusively by the attorneys for the commission. But that is not all. Here is a case brought before the Inter-· Yours, very truly, MARTIN A. KN.A.PP, Chairman. state Commerce Commission, with its great detail of evidence and volumes of rate sheets and of business and transportation Mr. ELKINS. I have had this communication read in order conditions. It :finally reaches an end in an order of the com to set the Senator from Iowa right, because I do not think oo mission. The commission is thoroughly familiar with the case, would want to make a statement not sustained by the facts. because it has taken every step from the beginning to the end Mr. CUMMINS. Mr. President, the Senator from Iowa does of it. Then comes the suit in the court of commerce by the not need to be set right with regard to that statement. There railway company affected by the order, and instantly the whole is nothing inconsistent between the statement just read and the forum changes. The Attorney-General is to defend the case. statement I made. I know personally with regard to all the He knows nothing about it. It is impossible for him to become cases that have been tried by the Interstate Commerce Com as familiar with it as those who have been in at the beginning mission from our part of the country that whether the attor and who have pursued it step after step. The attorneys for the neys for the complainants have nominally appeared or not they railway company have collected this testimony; they have always-I do not know of an e..~ception-lend their aid and give brought it together for the purpose of arguing the case before their assistance to the Interstate Commerce Commission in the the Interstate Commerce Commission, and they are with the trial of the cases. case in the court as well as before the commission. But the point I make is not with regard to the appearance But not one person who is either financially interested in the formally of the complainant or complainants at the present outcome or one person who has any familiarity with the pro time, because that is simply by the pleasure of the Interstate ceedings is allowed to take any part in its after conduct. What Commerce Commission. The objection I have to this bill is the chance- substitution of the Department of Justice for the Interstate Mr. ELKINS. Mr. President, will the Senator allow me to Commerce Commission. I warn you that whenever you trans interrupt him? · fer this power and this responsibility from the Interstate Com The PRESIDING OFFICER. Does the Senator from Iowa merce Commission to the Department of Justice you will have yield to the Senator from West Virginia? destroyed in large measure the effectiveness of the law. In so M:r. CUMMINS. I do. saying I am not impeaching either the competency or the hon Mr. ELKINS. This becomes a case against the United States, estv of the Department of Justice, for I assume that it will al as the Senator has properly stated, after the case goes up from ways prosecute or defend according to its judgment and its the Interstate Commerce Commission. Would the Senator have conscience, and with the ability which men appointed to such all of the shippers who are interested in the determination of that positions ought to possess. case represented by their counsel, or would he have it intrusted My objection is that, in the first place, the Department of to the Attorney-General, who has charge of the interests of the Justice will be given an irresponsible and unappealable review United States and of all the people? That is the question I upon the orders of the commission. Imagine, if you please, the should like to put to the Senator from Iowa. Interstate Commerce Commission entering an order affecting the Mr. CUMMINS. Mr. President, you might just as well say, rights of that vast territory in the West, because it is of that that the Attorney-General should defen~ every suit brought JI territory I know most. These controversies are now disputes upon a promissory note, because all the people are interested between localities. My friend the .Senator :from Minnesota [Mr. in the administration of justice, as to say that he ought to I 1910. CONGRESSIONAL REOORD-'SENATE. 3351 defend these cases from the standpoint which th-e Senator from to the Attorney-General affecting -the great questions that are West Virginia [Mr. ELKINS] has just suggested. So far. as .I before the courts, and why not trust him in respect to a few am concerned, _my attitude is perfectly well known and will be shippers who make complaints? disclosed in the amendment that I shall presently send to the .Mr. BAILEY. Mr. .President-- de k, namely, that all the complainants, whether ther-e be one The PRESIDING OFFICER. Does the Senator from Iowa or whether there be a doz.en, before the Interstate Commeree y.ield to the Senator from Texas 1 Commission who have been given the relief for which they Mr. CUMMINS. Yes. base prayed, shall not only ba J>ermitted to aJ>pear by courtesy, Mr. BAILlDY. Why not allow the commission, whose order but shall be gi"\'en the unquestioned and absolute right to ap is in-volved and w..hose order is attacked, to -defend it in their pear before the court of commerce. I care no~ about the way? suggestion that there might be complexity in the parties; I Mr. ELKINS. llr. Pre-sident, the change -sought to be ea1·e nothing about the differences of opinion that there might brought about by this bill 1s to relieve the commission from the be among counsel It is a false view of the whole :subject to position, 1n which it has been for years, of being prosecutor, say that the United States alone as a .sovereignty is interested judge, investigator, and defender. This bill puts the cases be in these proceedings. I recur to the case that I have just fore the United States courts fu proper order. The commission mentioned, because it fully illustrates such difficulties. These investigates a case, reaches its conclusion, and an appeal is men are now prosecuting their case before the Interstate Com taken. Why should the commission be the investigator in a merce Commission. Every dollar they have is involved in the case, the prosecutor, the grand jury, and, finally, the judge? outcome of that controversy, because if the rates which are Now, not satisfied, the Senator from Texas wants to send them now enforced are continued, every one of them will be driven up to the courts of the United States there to keep on making from the business in which he is engaged. their case good. no you tell me if they succeed in convincing the Interstate Mr. BAILEY. Mr. President, that sounds a little familiar Commerce Commission that they are entitled to relief and that to those of us who have borne-some little part in this effort 'to · the rates which burden them so that they can not continue regulate railroads. That was the old argument they made the ·rncations which they have chosen are wrong; that their against all commissions, and whatever force there was in it at rights are to be turned over to the United States, to the Attor any time was in th-e original process; but after the commission ney-General, to be viewed by him in the cold aspect of abstrac has made an order and its order is attacked, l think nobody in tion, which takes into account universal justice? I maryel this world could be more safely trusted to defend that order and that a:ny man who has at heart the welfare of the -people ean employ suitab1e counsel than the commission- itself. contempliite with complacency any such procedure or such Mr. ELKINS. Let me ask the Senator one question? jurisdiction. Mr. BAILEY. I am trespassing on the time of the Senator Mr. ELKINS. Mr. President-- The PRESIDING OFFICER. Does the Senator from Iowa from Iowa. yield to tp.e Senator from West Virginia? The PRESIDING OFFICER. Does the Senator from Iowa :l\Ir. CUMl\IINS. I do. yield to the Senator from West Virginia? Mr. CUl\Il\HNS. I do. Mr. ELKINS. I think that the position of the Senator would Mr. ELKINS. The commission can not itself appeaT ·in introduce intolerable confusion in the administration of this court? proposed law it he is ·sustained and his amendment should be adopted. There might be 100 or 200 or 300 shippers claiming Mr. BAILEY. I do not think they ought to appear, because the Tight to intervene, each with his lawyer, or with four or they all are not lawyers- five lawyers on each side. Here is a case against the United Mr. ELKINS. No; they -can not appear. States, which the Attorney-General under his oath of office Mr. BAILEY. Therefore yon would not want them to do so. must defend, and by this act he is Tequired to do it. How will Mr. ELKINS. I w__ant to ask the- Senator, who is a good they rettle and determine their differences before they go into lawyer and familiar with practice, why can not the commission court? trust the Attorney-General of the United States? The .Attorney-General of the United States appears for all the Mr. .BAILEY. The trouble with that is that the Attorney people, not only for those who may ha-ve ·an immediate interest, General has ·a thousand other things -to do, and if he is equally bnt for all the people of the United -States. Suppose the ship zealous in the :performance of his multttude of duties, some ot pers so conduct their <:ase that a judgment is rendered wrongly. them would fail to receive -the __pro-per attention. The Attorney-General of the United States in that instance Mr. ELKINS. Under the bill we give him the _power to em would not be heard. He would, -according to the Senato.r's state ploy CClnnsel. ment, or hls amendment, have to let the shipper control the Mr. BAILEY. 1: want to say that 1: make no concenlment of conduct of the case. One stands for :himself or for one body of my objection. _I object to it simply because it involves the whole shippers, while the Attorney-General of the United States stands railroad commission and its work in every .Presidential election. for all the.people and all the shiJ>pers. The railroads would be more interested in the Attorney-Gener We have to lodge power somewhere in the administra.tion of alshi~ of the United States than they would .be in the presidency law, and it is the .Attorney-General of the United StateB, with itsel!. That is my whole objection to it. · · his assistants, who should have that power. The United States Mr. CUMMINS. The Senator has anticipated .an objection is paying .all the .expenses of this litigation. The Attorney that 1 had intended to urge and which is set ont in the minority General is empowered to employ assistant counsel It is pre report. sumed that he will consult the counsel who had theretofore Mr. CRAWFORD. Will the Senator permit me just for a conducted the litigation. As it is now, in fact, the responsibil moment? ity is divided. As I have said, we have to trust somebody, and The PRESIDING OFFICER. Does the Senator born Iowa who can we trust better before the courts of the United States yield to the Senator from South Dakota? tha.n the .Attorney-General, with his staff of .assistants? What Mr. CU_ID_llNS. I do. motive, what wr&ng can be imputed to him in the administra Mr. ORAWFORD. In order to clear up a polnt which I do tion of his high office? not quite understand, I wish to ask, Is it the inte-nticm of the Mr. CUMMINS. Mr. President, the best lawyer in the world Senator, if his idea prevails in the framing of the law, that, was never able to appear for the plaintiff ruid the defendant at instead of substituting the United States as -a party, the Tuter the same time. state Commerce Commission shall remain the party a.nd shall Mr. ELKINS. Mr. President, in the Interstate Commerce control the selection of fill attorney to condlli!t the proeeedings Commission the lawyers appear for the complainant and the in court? I supposed th.at was the case ; but I am now eonfused, defendant nearly all the time, except in the few cases to which because app:axently this proposition comes in, as suggested by the Senator referred a while ago. The Senator must be right as the Senator from Texas, that after the party in interest-that to the facts in this argument. When the Senator said it was the is, the -shipper who was interested 1n securing the making of unh·ersal custom, or words to that effect, to employ counsel of an order and who was -represented by attorneys, or different complainants in the trial of cases I showed that the Govern groups of -shippers who nmy ha\e been so represented-shall i;nent appeared for everybody before the commission. have been successful -and the commission -shall have .made the Mr. OUJ\llHNS. Mr. President, the statement-- OTder, when it comes nnder review in ·eourt, .not simply the com Mr. ELKINS. It is not a case of shippers. It beCClmes a mission shall eontrol these proceedings and select th-e attorney, case o! the United Stn tes, -and the United States should be but the shipper ortbe groups of _shippers, who may have different trusted to take care of any particular 'body of its 'Citizens, .two counsel, shall nlso have a voice in the proceeding. If so, then or three or even five hundred of them, when it has to take care the question --arises whether OT not too many cooks may not of _the intei·ests of all the people. You Il0W intrust_eve~ything spoil -the broth, and;wll.o is 1·eally to contTol the proceedings. 3352 CONGRESSIONAL RECORD-SENATE. MARCH 18, Mr. CUMMINS. I think · thaf suggestion was made by me, transferred to the Department of Justice, then I shall insist and not by the Sena tor from Texas. that those who are interested in the proceeding financially or Mr. BAILEY. I made no suggestion of that kind, although legally shall have the absolute right to appear and present their I haT"e no hesitation in saying that if the parties who prose rights under the law. cuted the complaint below chose to follow it to the courts after And that brings me to answer the Senator from West Vir the commission had decided it, I would not deny them that ginia. I do not believe he has correctly apprehended my ob privilege. There would be no trouble about the multitude of jection to this change. If the Interstate Commerce Commis counsel, because the court can always limit the number of sio.n were looking for a lawyer to defend its action, I . can im counsel whom it will hear. The Interstate Commerce Commis agme no more happy or fortunate choice than the Attorney sion must control; and I would give them the best lawyer in the General of the United States, for the Attorney-General of the United States who could be induced to accept an appointment United States would then be the counsel for the Interstate as their attorney. Commerce Commission and would carry on its purposes and Mr. ELKINS. That would be the Attorney-General, who is defend its actions or rights precisely as he would defend already paid. any other client, but under this law the Interstate Commerce Mr. BAILEY. Wel1, the Attorney-General has much else Commission does not go to the Attorney-General for the pur to do. pose of having its action defended. The suit is not to be Mr. ELKINS. But he can employ all the counsel he wants, brought against the Interstate Commerce Commission. It is to under this bill. be brought against the United States and the Interstate Com Mr. BAILEY. But, Mr. President, it is not the number; it is merce Commission has no control whatsoever over it. If the the· kind that is wanted. Attorney-General is courteous enough to ask of the Interstate Mr. ELKINS. Mr. President, I want to ask the Senator from Commerce Commission concerning its merits, well and good Texas one further question. but there need. be no communication whatsoever, so far as th~ The PRESIDING OFFICER. Does the Senator from Iowa proposed law is concerned, between the office of the Attorney yield to the Senator from West Virginia? General and the office of the Interstate Commerce Commission. Mr. CUMMINS. I do. Mr. HEYBURN. Mr. President-- Mr. ELKINS. Suppose a thousand people are interested in The PRESIDING OFFICER. Does the Senator from Iowa a given question or in a certain complaint, and each one of those, yield to the S~nator from Idaho? or each group of 100, wants separate counsel. Mr. H~YBTJRN. I would like to ask a question. I do not Mr. BAILEY. The court would determine whom it would want to mterrupt the Senator from Iowa. hear. Mr. CUMMINS. I was about to ask whether the Senator · Mr. ELKINS. How are you going to put upon the court the from I~aho could defer the question he wishes to propose. I task of dictating to the shippers what counsel they shall employ? was gomg to suggest that it is obvious to me that I can not Mr. CUMMINS. I will answer that question presently to the conclude all I have to say within the time that Senators would Senator's entire satisfaction. be willing to remain this afternoon, and therefore, if it meets Mr. ELKINS. There would be two sets of lawyers, where the pleasure of the Senate, I would be very glad to have the one would do. I trust the Senator from Texas as much as I further consideration of the bill postponed until to-morrow. do the Senator from Iowa to answer these questions. Both are .1'Ir. HEYBUR~. I would. be glad, if the Senator will per very able lawyers. mit me, to subnnt the question now, and then it can be con Mr. CUMMINS. This is not a legal question, howe,er. sidered. If· the shipper is the winning party before the com Mr. ELKINS. I know it is not, but it pertains to the court. mission, then the Attorney-General becomes the attorney on Mr. BAILEY. A man who is not a lawyer could decide this appeal for the railroad company? just as well. ~r. CUMMINS. No; the Attorney-General, if he saw fit to Mr. ELKINS. . I do not believe he could. do it, would become the attorney for the shipper. · Mr. BAILEY. But I want to say to the Senator from West Mr. HEYBURN. It would depend on how the decision Virginia, with the permission of the Senator from Iowa, that below went. there is never any trouble about a question of that kind. If Mr. CUMMINS. As the Senator from Idaho will remember the counsel do not agree among themselves, the court itself the law does not provide for any review of the order of th~ would decide it There is a great case pending in a great commission at the suggestion of a complainant· that is at the tribunal now not very far from where we sit, and probably there suggestion of a shipper. The railroads alone have a ~ight to are 40 lawyers, first and last, connected with it; but I imagine appeal to the court. there will not be more than two or three on each side, and the Mr. HEYBURN. That is the principle which attracted my court will probably limit them as to the time. attention. . Mr. ALDRICH. Mr. President, will the Senator permit me Mr. CRAWFORD. Mr. President-- to ask him a question? · The PRESIDING OFFICER. Does the Senator from Iowa Mr. BAILEY. Certainly. yield to the Senator from South Dakota? Mr. ALDRICH. There is another question, aside from the Mr. CUMMINS. I yield. personality of counsel, I think, involved. There might be an l\Ir. CRAWFORD. It is just on this point: Is it a fact that entire disagreement as to the policy to be pursued by different when a shipper or a group of shippers make a complaint before groups of shippers. Would the court determine what policy the commission, have a hearing, and against whom an adverse should be pursued? decision nms, the decision being in the favor of the carrier, the Mr. BAILEY. Undoubtedly the commission itself would de decision is final as to the shipper, and that in that case no re termine that, and the attorney for every dissatisfied shipper view whatever is allowed? or complainant would be in the attitude of an assistant counsel, Mr. CUMMINS. I believe that to be true. and he could confer with his colleagues. The commission now Mr. HEYBURN. But if the decision is against the railroad employs its counsel, and the counsel of the shippers, as I hap company, from that time on it has no occasion to employ coun pen to know, frequently confer with the counsel of the com sel or incur any expense whatever, the Attorney-General de mission, both in the preparation of cases and as to the line fending the decision below? of argument which shall be pursued. They come together in Mr. CUMMINS. I think the Senator from Idaho does not see conference and eliminate whatever may be irrelevant and imma the exact relation. If the order entered by the commis ion is terial, and they reach the heart of the question in that way. against the railroad companY:, then the railroad company brings · Now, according to my view-and I am sure th:~.t is the view suit to set aside or annul the order. of the Senator from Iowa-the commission would control, and Mr. HEYBURN. And the Attorney-General represents it? all the help that the shippers would offer the commission· in the Mr. CUMMINS. And the Attorney-General, according to this way of competent legal assistance, I imagine the commission bill, may appear and defend the order. would welcome ; and I am sure if they had the right kind of a Mr. HEYBURN. Now, just reverse that condition, and for lawyer to represent them he would welcome it. whom would the Attorney-General appear? Mr. CUMMINS. Mr. President, answering the last sugges Mr. CUMMINS. He would never have an opportunity to ap tion of the Senator from Texas and in order that there may pear for anybody, because there is no appeal to the courts on be no misunderstanding with regard to my position, I say that the part of the shipper. if the defense in these cases be retained with the Interstate Mr. HALE. Mr. President-- CommeJ;ce Commission, which has an interest to defend the The PRESIDING OFFICER. Does the Senator from Iowa order it has entered, then there is no such necessity for enlarg yield to the Senator from Maine? · ing the opportunity that counsel for shippers now have to Mr. CUMMINS. I do. enter the case and directly control it, but if the case is to be [At this point Mr. CUMMINS yielded the floor for the day.] 1910. .CONGRESSIONAL RECORD-SENATE. 3353 Wednesday, March 16, 1910. the service of the notice will be made upon the Department of Mr. CUM.MINS. Mr. President, during the time yesterday Justice. Then what will the Department of Justice do? Mark that I gave consideration to the proposal to transfer from the you, these humble citizens of •Iowa are engaged in raising hogs. Interstate Commerce Commission to the Department of Justice I hope that is not to their discredit, because we 11.ave this ad the defense of suits brought to set aside, annul, or restrain or vantage--at least in my State--we only raise hogs of the four ders entered by the commission there was so much general de legged variety. There are some States not so well situated in bate arising out of interruptions, and very proper interrup that respect, although those States shall be nameless at the tions, that the continuity of the observations I was endeavoring present moment. But these humble citizens of the Republic to make was somewhat lost. In view of the importance of the brought their case, and they won it, before the Interstate Com proposal I beg the privilege of restating the question and my merce Commission. They convinced that body of men, created objection to it. by Congress for the very purpose of investigating these rates, It will be understood that at the present time all suits brought that they had been unjustly dealt with by the railway com to annul the order of the -interstate Commerce Commission are panies. brought in the circuit courts of the United States, and they are Now, what must they do when this case is brought against the defended by the commission. The proposition contained in this United States? They must convince the Department of Jus bill is to require all such suits to be brought against the United tice that the order of the commission was right, and ought to States and defended, if defended at all, by the Department of be defended and vindicated. They must enter into some sort Justice. I repeat what I said yesterday with regard to this sug of an extrajudicial and political inquiry before the Department gestion. In my opinion it will do more to destroy the efficiency of Justice, in order to make the officer who occupies that high of the interstate commerce law, the administration of the law, place believe that this order is one that should be sustained. tha:n any other adverse proposal contained in this bill. If I may be permitted to use a somewhat unclassical phrase, I intend to take up the history of a case, an actual case, here is " the nigger in the wood pile." Rere is the milk in the although I might well propose it as a supposititious case, in cocoanut. oruer that the Senate may understand just what is proposed The Senator from Rhode Island [Mr. .A.r.n&rnH], who, though and jnst why it is proposed. Not long ago the Corn Belt Meat, often wrong-I was about to say nearly always .wrong-is never Prvducers' Association of Iowa, an association composed of obscure, took the mask off this provision of the law yesterday, thousands of our hog raisers and cattle raisers, brought before or, rather, helped me to do it, when he stated in response the Interstate Commerce Commission a proceeding complaining to some suggestion, made either by myself or some other Sen of the rate from Iowa points to Chicago upon live hogs. I do ator, that the r~son why the defense of these cases is to be not see before me the distinguished chairman of the Interstate transferred from the Interstate Commerce Commission to the Commerce Committee, who has this bill in charge. I do not Department of Justice is that the Department of Justice might know whether he is at all interested in the bill. consider the question from the high· standpoint of public policy • . Mr. CULLOM. :Ur. President, I will simply say that I under that there might be policies involved in the defense of the~ stand the chairman of the committee was called out for a mo suits; and that, therefore, they wanted their defense intrusted ment. He will be back in a very short time. to a department that looked not to the decision that had been :Ur. CUMMINS. I · have no doubt that some imperative made by the commission, but to the general welfare of all the summons has taken him from the Chamber. Otherwise he people of the United States. would be here. I intend, I may say in parenthesis, to speak Tell me, if you will, what judgment the farmers who are in somewhat slowly until the members of the Senate have been terested in the case that I have put will enter upon a proposal able to satisfy an appetite which is natural to man. I under to take the defense of the case from the Interstate Commerce stand perfectly that at this particular time they are gratifying Commission, that it has already convinced of its righteousness, other senses than those employed in hearing speeches. and transfer it to the Department of Justice, which is to con The Senator from West Virginia remarked yesterday that sider it from some vague, intangible point of view that may .there would be infinite difficulty if the shippers were permitted result in a defense and may result in .an abandonment. to intervene or to appear in the suits brought in the commerce I can not think that the full enormity of this proposal has yet court. I hope some friend of this bill, if it has any friends, will da\\•ned upon the Senator responsible for this bill, or else the convey to him when he returns to the Chamber what I am about suggestion would be speedily withdrawn. What will the Attor to say. These thousands of shippers, united under an associa ney-General consider? He will consider whether the rates that tion known as the Corn Belt Meat Producers' Association, ap have been condemned by the commission, rates which either add peared by a single attorney. There was no difficulty there; no to or take a way from the profits of the producers of Iowa, ls on confusion there. This single attorney was aided by the attor th~ whole good for the entire country. ney-general of the State of Iowa under a wise provision of the Does the Senator from West Virginia believe that a lawsuit statutes of that State. Together they conducted this proceeding instituted to protect rights, instituted to protect property of that against the railroads which carry hogs from Iowa to the eastern sort, should be at that stage transferred to a . tribunal from market. The complaint was that the rates as compared with the which there is no appeal, over which there is no review, and rates from other producing fields were too high and ought to in which the judgment of the commission may be either set aside be reduced. Vast volumes of testimony were taken in the hear or abandoned, not for reasons stated in any opinion, but for ing before the commission. Finally, and within a few days, the reasons, as suggested by the Senator from Rhode Island, of high, commission entered an order condemning these rates and pre broad, public policy? scribing for the future reduced rates from Iowa points, or cer If the Senator from West Virginia lived in our part of the tain Iowa points, upon this product. country he would know I am speaking the truth about this. I do not know whether the railways interested in that pro He used to live ~mt in that direction. I do not know why he ceeding will attempt to set aside, annul, or enjoin this order of ever left that God's country, but if he lived out there he would the commission or not. I believe the time in which a bill of know that the present difficulty in rate making does not relate that character may be filed has not yet expired. But I will so much to the actual rate charged by the railway companies assnme that under the present law the railways interested do as it does to the relative rates imposed upon various commodi file such a bill, and do seek the injunction which is provided ties and for various communities. Our struggle out there is one for in the practice of the courts as well as in the law itself. of competition between communities, localities, each of them The Interstate Commerce Commission will appear and defend; wanting to get its product into the market at a fair rate as it will defend with a motive; it will defend with an earnest pur compared with a similar product of some other community with pose to succeed. Why? Because it has already been convinced which it must compete. That is ,the great question of the -West. of the injustice of the rates against which complaint was made Now, the Iowa farmers have just had it decided that the and it has reached the conclusion that they ought to be changed'. Iowa rate on hogs is too high as compared with the rate on the No matter whether the commission in conformity to its gen same animals from other parts of the country, and if the Sena eral practice advises with the attorneys who appeared before tor from West Virginia indorses this bill, of which I have the it for the complainants or not, we will have a real lawsuit a gravest doubt, and concerning which I have not yet heard him lawsuit defended by men who have the highest motive to de speak-- fend it, defended by men who believe that the order assailed is 1\fr. ELKINS. Mr. President-- right; and therefore they will bring to the defense all the facts Mr. CUMMINS. Pardon me just a moment, and then I will and all the arguments which the circumstances of the case pro yield. vide in order to sustain the reduction already ordered. If he does, then does he propose that the question whether Now, let us assume that this law has passed, and let us point Iowa is being fairly dealt with in regard to the ratee on out the consequences under its operation. Instead of bringing hogs, as compared with Nebraska, and with Kansas, and with a suit again~t the Interstate Commerce Commission the rail Missouri, and with South Dakota, and North Dakota and ways will bring a suit against the United States by name, and Minnesota, shall be taken up by the Attorney-General aiid be / ~ C ONGRESSIONAL mECORI>- ·SENATE. MARCH 18, by him decided in ·the ~secrecy of Jlis chamber, -without :any The Senator from West Virginia refuses to see the difference .opportunity, ·SO far as the law pr-0vides, ·for -any :man interested ·between cominittlng t o the Department of Justice these cases ·in the outcome to be heard or· to lay ..before him either·the -evi :and the ordinary suits· that are ·brought, not against the United dence or the ·arguments? Now, --:r yield to the :Senator from States, because there are no -suits ·brought against the United "West Virginia. States -ex-cept those .that ·have been specifically .Provided for in Mr. ELKINS. ·r do ·not see the difference between the At the .statute. "The United States is not suable in -any court. It torney-General ·appearing in these ca-ses and a_pJ)earing in ·any has the prerogative-to bring ·suits, but it is not often compelled -Other cases against the United :States. Certainly, the Senator to defend :them. -will ·not deny that in ·the long list of Attorneys-General ·they 'Th-erefore there is no parallel in the ].)osition su_ggested by ·have ·always been distinguished men and able lawyers. the.Senator 'from West.Virginia. But it is ffile for men to con ·Now, l\fr. Pr·esident, why should npt a ·case against the.United tend that the question of freight rates, as they have been detei- States be committed to -the Attorney-General? In this -connec mined by -the .Interstate Commerce Commission -upon the appli tion I will ask the Senator to allow me to read-- cation _and complaint of those who are interested in those rates, ·Mr. CUMMINS." Mr. President-- - who are atI--ected by those _rates, can become a question of i;>olicy, ""Mr. 'ELKINS. It is bearing Tight on this case. to be dealt with ·at the whim uf the '.Attorney-Gen-era!, no matter Mr. CUMMINS. .I can ·not consent to it, fOT this reason: I how :well.intentioned the Attorney-General may be. · want to -tempt, if ·I possibly ean, the '8enator·· from West Vir I :take another case. :J'ust a -short whil-e ago the railroads ginia into an address to the Senate upon this bill. ·For that changed the di:ff.erential -upon hogs .and packing-house products Tea.son :Only I am not willing to .allow him to interject fugitive ftom ..Missouri River points to Chicago ·and to .other markets. documents, which might -be Yery material ·in a speeeh General gave to the committee. wa thnt' arr fuquiry: into· the fusion. from a. multlpllcity of mterests: trying to direct a suit justica of rates and the practices of' railroad compn.nie was not when it should be directed-certainly the assum1:1tion is-by of individua concern. While he did not. sa state; the· effect o:f one of' the: ablest Iaw:yers· in tl:i.e country, the- Attorney-General his· argument-was that-it-made na difference. to the shippers; to of- the United States. It was- not the purpose to deprive any tlwse wha were. suing the: raih-oad: company as a common. car body· o:f'any: right; and it wa not claimed that it was. rier, but the. whole question was one of public policy; one of Mr. PURCELL. Mr. President; r merely desire to ask tlie enforcing an abstract view of right an Mr. CUMMINS. I yield to the Senator from Texas. Mr. BAILEY. No man ever lived who will ever get the Mr. BAILEY. The whole truth is that they are trying to Senator from West Virginia to contradict anybody if there is reverse the Supreme Court of the United States. They orig- a possible way to avoid doing so. inally contended that the antitrust act was not intended to Mr. ELKINS. Not the Supreme Court. include the railroads, and that contention was overruled by the Mr. BAILEY. The Senate has heard with surprise his re- cour~. The effect and purpose of this is to take the railroads, mark from time to time when he said that Congress meant to this extent, at least, from under the operation of the antitrust one thing, notwithstanding that court declares that. Congress act and to confine them entirely to the interstate commerce act. meant a different thing. I .take it .that the Senator from West Virginia, if I might tempt Mr. ELKINS. I agree with Senator Hoar and Senator Sher- hrm to his feet, would not deny that that is the purpose of it. man that it did not apply, in their minds. Mr. ELKINS. If the Senator from Iowa will allow me I Mr. BAILEY.- I stated that merely as a recollection. The will answer that. ' Senator from West Virginia confirms me. Now, what did the 1\Ir. BAILEY. Before the Senator answers, he said a moment Senator from Rhode Island think about that? ago that he wanted to explain what was in the mind of the Mr. ALDRICH. Mr. President, the Senator from Rhode committee. I want him to specify just what part of the com- Island, I think, agreed witl). the Senate. I venture the asser mittee, the majority that did not approve this bill or the minor- tion that no man in the Senate who voted for the so-called ity that did. Sherman antitrust law had the slightest idea that it would Mr. ELKINS. In the minds of those who reported the bill. apply to the railroads. I think that is a historical fact. · Mr. . CUMMINS. Mr. President, I want a moment to con- Mr. BAILEY. And you are now trying to take the railroads sider whether I will yield for the purpose stated by the Senator from under it. from West Virginia or not. I think I wi.IJ, but I want it to be Mr. ALDRICH. I beg the Senator's pardon; we are not try- understood that I am occupying but a small proportion of the ing anything of the sort. · time that is being consumed. I do not want to incur the ill-will Mr. BAILEY. You did not intend to put them under the of Senators upon the assumption that I am speaking for days antitrust act, but did so; and now you are trying to take them when, as a matter of fact, I am dividing my time amongst a out. great many who are interested in the bill. l\Ir. ALDRICH. The Senator from Texas and the Senato~ Mr. ALDRICH. Will the Senator allo'w me t6 make a very from Iowa are entirely mistaken as to the purpose of that law short statement? and its effect. . Mr. CUMMINS. I will yield to the Senator from Rhode l\Ir. CUMMINS. This section is just as plain as the English Island, and afterwards I will yield to the Senator from west language can make it. There is not any possibility of mis Virginia, but it must be lillderstood that I am going right taking what it accomplishes. There is no hidden meaning in through this bill if it takes me four days to do it. it. Its meaning is blazed right across it. Mr. ELKINS. That is right. Mr. ELKINS. I agree with the Senator. Mr. CUMMINS. And I do not want to be misjudged in re- Mr. CU:l\IMINS. I defy any master of the tongue to state gard to the time I occupy. . the purpose more clearly and plainly than is found in the bill. Mr. ALDRICH. I simply want to say that for myself I do I suppose the Senator from Rhode Island believes that it does not consider myself bound by an agreement between the Sen- just what it says. It repeals expressly the antitrust law with ator from Iowa and the Senator from Texas as to what I regard to traffic arrangements. think the bill means. Mr. ELKINS. Now, will the Senator allow me to state what Mr. ELKINS. Mr. President-- I think the language means? Mr. CUMMINS. I must answer that, Mr. President, by ask- Mr. BAILEY. What the committee thought it meant? 1ng the Senator from Rhode liland when have I stated whaL Mr. ELKINS. And the committee that reported it· the ma- he understands this bill to mean? I have very studiously jority of the committee. ' avoided any such suggestion. because I have not the least idea Mr. BAILEY. I want to challenge that statement. The what the Senator from Rhode Island believes the bill to mean. Senator must be accmate. Mr. BAILEY. I have the advantage of the Senator from The VICE-PRESIDENT. The Senator from Iowa has the Iowa. I know exactly what the Senator from Rhode Island floor. Does he yield further? • · thinks it means. The Senator from Rhode Island thinks it 1\:Ir. CUMMINS. I have yielded to the Senator from West means exactly what I said it meant. Virginia for the purpose of making an explanation that I Mr. ALDRICH. Mr. President, the Senator from Texas may honestly think is sadly needed, and I am quite willing that the have an intuitive knowledge of other Senator's views upon a Senator from Texas shall hold him to tl!_e explanation. great many subjects, but he has not the slightest idea appar.- Mr. BAILEY. And to the accuracy of it. ently, from his statement, as to what my views are upon this The VICE-PRESIDENT. · The Senator from West Virginia subject. _ has the floor. . Mr. BAILEY. I have served here something like nine years Mr. ELKINS. Now, if I may be allowed, the bill provides: with the Senator from Rhode Island, and never yet have I Agreements between common carriers subject to this act specifyh~g known him to get what he wanted without knowing when he the classifications of freight and the rates, fares, and charges for trans· had it. The Senator from Rhode Island knows exactly what portation of passengers and freight which they agree to establish, this bill means, and it means exactly what, in that respect, he shall not be unlawful under the act- wants it to mean. The Senator from Rhode Island was one of It should not be unlawful under the Sherman Act. I will not those who never believed that the antitrust law-now, I am quote the whole of it. That is what it means- venturing this; I do not know it; I only believe it-the Senator if a copy of such agrement is filed with the Interstate Commerce from Rhode Island was one of the Senators who never believed Commission within twenty days after it is made. that the antitrust law was intended to apply to the railroads. Now, the making of the agreement is not unlawful and the The venerable Senator from Massachusetts, now passed away, filing of the same agreement is not unlawful, but the rates, the declared, and I understand that Senator Sherman declared on schedules, the classifications, the fares, and charges might be the floor of the Senate, that it had not been the purpose of Con- unlawful. The Senate knows and everybody knows that the gress when they passed the antitrust act to include the rail- railroads have to violate this law every day in order to operate roads in it, expecting that they would be left to be dealt with their roads. · under the interstate law. Mr. BAILEY. To violate a law of Congress?. Mr. ELKINS. What does the Senator from Texas think on Mr. CUMMINS. I for one challenge that statement. that ·subject? Does he think-- . Mr. ELKINS. Let me make myself plain. The railroads Mr. BAILEY. I think the antitrust act was intended to enter into agreements every day. They do not do it in a way punish and prohibit every unlawful combination, whether made that they can be prosecuted, but how otherwise can you fix a. by individuals or corporations, or, if made by corporations, of rate between New York and Chicago with all the railroads?- · whatever kind or character. In other.words, I think the Su- Mr. CUMMINS. Each railroad.can fix it for itself. · preme Court was right on that question: Does the Senator from Mr. ELKINS. If the Senator will allow me, they do fix 1t West Virginia differ with them? · that way. President Roosevelt, in a number of messages and Mr. ELKINS. No; I do not differ with the Supreme Court, statements, always declared that he fa-rored the making and but the men who passed the act never had any idea that it filing these agreements not unlawful. applied to railroads. Mr. CUMMINS. I challenge that statement. l\Ir. BAILEY. Then the Supreme Court misconstrued the law. Mr. ELKINS. · •can produce the message here. Mr. ELKINS. .They . interpreted the language, but the men . Mr. CUMMINS. The Senator from West Virginia wlll not who passed the act had no. such idea when they passed it. find any statement from the former President of the United · 1910. CONGRESSIONAL -RECORD-SENATE. 3361 States favoring tlie'validation of such agreements until they are than the commission ever had before? It says they shall have approved by the Interstate Commerce Commission. no force until they are passed upon by the commission. Mr. ELKINS. I said the President favored it, and it is 1n Now, if one of these -agreements that have to be entered into, the platform. It is in the Republican platform in just the and you can not conduct railroads without them, is filed with words, probably, that the President used. them, with it goes schedules, rates, fares, and classifications. Mr. • CUMMINS. When I come to the political side of this Is there anything wrong in that? They have not only the juris question and discuss the Republican platform, I shall be very diction they have now under the present law, but an extended glad to call the attention of the Senator from West Virginia power over them, to set them· aside on their own motion. to what the party has declared; but just now we are consider Mr. BAILEY. Will the Senator permit me to interrupt him? ing it from its economic and abstract standpoint, instead of a Mr. ELKINS. I am through. . political standpoint. Mr. BAILEY. The Senator from West Virginia took the l\Ir. ELKINS. The section provides: floor to explain what this provision meant, and he was going to If a copy of such agreement is filed with the Interstate Commerce explain what the committee thought it meant. Commission within twenty days after it is made, and before or when Mr. ELKINS. I have-just done so .. any schedule of any rate, fare, or charge, or any classification made pursuant to the agreement is filed with the commission; but all pro Mr. BAILEY. He has simply defended it, without any at visions of the act to re~ulate commerce, approved February 4, 1887, as · tempt to show the Senate what it means. amended, and all provisions of this act and any future amendments Mr. ALDRICH. Mr. President-- thereof shall apply to such agreed rates, fares, and charges, and such agreed classifications, and the Interstate Commerce Commission shall The VICE-PRESIDENT. Does the Senator from Texas yield have- to the Senator from Rhode Island? And so forth. l\fr. BAILEY. I do not control the time. I will be very glad Mr. ALDRICH. Will the Senator read the last clause? I to give the Senator from Rhode Island that full opportunity commend that to the attention of the Senator from Iowa. when I come to speak. I want to say, Mr. President, that those of Mr. ELKINS (reading): us not on the committee might be well excused for not knowing And all provisions of .this act and any future amendments thereof what the committee think about it, because no Member of the shaH apply to such agreed rates, fares, and char.f?"es, and such agreed minority has illuminated tlie bill with any discussion, the ma classifications, and the Interstate Commerce Commission shall have li.ke jority advising the Senate what it meant, but they are doing control over and power of action concerning any agreed rate, fare, charge, or c:tassific~tion- · it in the peculiar attitude of a minority. This bill did not come Now, there is not only-- out of the committee with a majority in favor of it. Mr. BAILEY. They would have that without anything in Mr. ALDRICH. That is a perfectly immaterial fact. this law; they have it now. JI.fr. BAILEY. Oh, no; it is not immaterial. Mr. ELKINS. If the Senator will let me get through-they Mr. ALDRICH. I think so. have it now. They can on their own initiative set it aside. .Mr. BAILEY. The truth of it is that at a full committee They never had that power before, but this bill confers upon meeting this bill never would have come to the Senate. But the commission the right to make the rates absolutely without that is a matter-- complaint. I will read it: . Mr. FLINT. Who was absent from the committee? And the Interstate Commerce Commission shall have like control over Mr. BAI~EY. I am not going to invade the committee room and power of action concerning any agreed rate, fare, charge, or classi to suggest that any Senator failed in the performance of his fication, including suspension of the rate or classification before it be duty. I will say it was not the Senator from California. I comes effective. The right of suspension of the Tates or schedules is will exonorate him, and that is enough. But some Senators given the moment they are filed. were sick, I know, and the Senator and the Senate know that It is not the agreement that is harmful; it is what the one of the best and most attentive of Senators lay upon a bed agreement provides that may be harmful. The schedule of of affliction and could not be there. rates, the fares or charges--and these are under the control ab l\ir. FLINT. That is what I want brought out. I wanted solutely and specifically and de.finitely in the language of this attention directed to the fact that the Senator from South Caro bill- lina [Mr. TILLMAN] was ill and could not be here. before it becomes effective and pending investigation of its propriety, as if the rate, fare, charge, or classification had been made without l\Ir. BAILEY. I did not mention that. I could not mention agreement. the name here and his great affliction without saddening the Absolutely without agreement. They have the sole jurisdic- hearts of all, and I preferred to leave that personal phase of it tion. They can stop it and nullify it on their own motion. apart. Mr. DOLLIVER. For how long? Mr. ALDRICH. Mr. President, perhaps I ought to say a Mr. ELKINS. Forever, if they want to. word on this question. Mr. DOLLIVER. No; sixty days. Mr. CUMMINS. I yield to the Senator for any reasonable Mr. BAILEY. It would take the Senator sixty days to get suggestion. his breath. Mr. ALDRICH. It is well understood, there is no conceal Mr. CUMMINS. I have no objection, Mr. President-- ment about it, I assume, that if the Democrats, with certain Mr. ELKINS. I will not continue to an undue length. Let gentlemen who have been acting with them more or less on me finish the reading : occasions, had voted together upon this bill in the committee And pending investigation of its propriety, as if the rate, fare, charge, there would have been no majority of the committee in favor of or classification had been made without agreement. it. The motion that was made in committee was acquiesced in All that is material. The commission controls it absolutely. by a majority of the committee, that the bill should be reported They can do anything they may wish with these rates, sched to the Senate with every member reserving the right to vote as ules, or fares under this bill. and with greater power than they he pleased upon amendments and upon the final passage of the ever had before, and they have the power to take the initiative. bill. If the Senator from Texas is able to say that this alliance Now, listen: . was an actual alliance, and that the votes were against this bill And any party to such agreement may cancel it as to all or any of and against re~orti?g it, then I have nothing further·to say, but the agreed rates, fares, charges, or classifications, by thirty days' notice my understandmg is not along that line. in writing to the other parties and to the Interstate Commerce Com Mr. BAILEY. The Senator from Texas would not interfere mi ssion, and such agreement of carriers, though filed with i:he com with a pretty family quarrel like that, and that there is an mission- alliance is not-- " Though filed with the commission" Mr. ALDRICH. This is not a family quarrel at all. It is a shall not be deemed- line of cleavage which is marked and distinct and definite. Wha t ?- Mr. CUMl\IINS. I am perfectly willing to yield to the Sena shall not be deemed a tariff or schedule of rates, fares, or charges col tor from Rhode Island for any discussion of this bill that is lectible from the public, or operate itself to alter any such tariff or schedule whensoever filed and published, but nothing in this section appropriate to my own observations, but I am not willing to contained shall be deemed to authorize the making of agreements for yield to any Senator for the exposure of mere partisan or politi the pooling of freights. cal propositions. Now, will the Senator allow me, or does he think I have Mr. ALDRICH. Will the Senator permit me to say a word consumed enough time? as to the matter now under consideration? Mr. CU:Ml\IINS. Inasmuch as I really regard this as the Mr. CUMl\:IL~S. I shall be g1ad to yield to the Senator for first reading of the bill, I will allow it to proceed. that purpose. Mr. ELKINS. Now, Mr. President, that is the material thing Mr. ALDRICH. I will express my understanding about the for us to settle here. Why not permit these agreements to be paragraph which is now under consideration. In my judgment, filed when the essence, the substance, is left entirely within the the practical effect of this is that no schedule of rates can be jurisdiction and control of the commission, with larger powers effective without the approval of the Interstate Commerce Com- XLV-211 CONGRESSIONAL RECORD-SENATE.. ~1.A.RCR 18; , mission. If the language is such that it. doe&; not cover; that I do not' believe- that: this- discussion will be impro\'.ed by point, I, personally, desire to have it made. so. bringing into it any such suggestions as. have been made by Mr. BAILEY. Will the Senatoi: from Iowa· yield fo.r: one the Senator from Rhode Island. other question?· Mr. Presiden~ as I remarked a few moments ago, this sec The VICE-PRESIDENT. Does the Senato~ from Iowa yield tion is as clear as the . English language can make it. There 1 to the Senator from Texas? ought not to. be any opportunity for a difference- of opinion with MI:. CUMMINS. I yield. regard to it. It says:· • Mr. BAILEY. With the permission of· the Senator from Agreements- between. common eaITiers subject- to this act specifying the I the cl.assiftcations of freight and the rates. fares, and charges for trans IOwa, I wish to say that does not touch point that made portation of passengers and freight which they agree to e tablisb shall a while ago, to the effect that this was intended to take the not be unlawful under the act to regulate commerce as amended, or all-rate agreements of the railroads from under the operation under the act approved Joly 2, 1890, entitled "An act to protect trade and commerce against unlawful restraints and monopolies," or other of the antitrust law. wise, if a.... copy of such agreement is filed with the Interstate Com Mr. ALDRICH. . Not at all. It does not- do it, in my judg~ merce Commission within twenty days after it is made. ment. Unlawful rates or unlawful combinations-can. not exist I _recall to the attention of Senators the very notable history for the fixing of rates.if this bill becomes a law, any more than. of the country· with regard to these traffic agreements. In 1 96 they can to-day. · · there came before the Supreme Court of the United States the Ur. BAILEY. Well, but if they were prosecuted they would case against the Trans-Missouri Freight Association. That asso· be prosecuted under this law? ciation, as alleged in the bill, was composed of 18 railw.ay com Mr. ALDRICH. They would be prosecuted under the Sher panies, and they made this agreement with respect to the man Act, and the reservations in this bill contained are· clear territory which is described, as I recall it, beginning with about to that effect. If they are not clear, :r desire that they- shall the ninety-fifth meridian, running north to the Iled River, be made clear. along the Red River, then t~ the Missouri at Kansas-City, along Mr. CUl\11\fINS. Mr. President, the only way the Senator the Missouri until it crosses the Montana line, then along the from Rhode Island could make clear what he now suggests ea.stern border of Montana until it reaches the Canadian line, would be to withdraw the section entirely, for it is a speciiic then west to the Paciiic Ocean and south to the Republic ot repeal of the law of 1890 so far as agreements between rail Mexico east along the line that divides the two countries until roads respecting rates, fares, charges, and classifications are the Gulf of Mexico is reached, thence along the border of the concerned. Gulf of l\fexico to the point of beginning; This agreement was Mr. ALDRICH. Mr. President-- made between these railway companies for the purpose of con The VICE-PRESIDENT. Does the Senator from Iowa yield trolling freight rates in the territory I! have described, which. to the Senator from Rhode Island? territory is ordinarily known among railr-0ad men as the trans Mr. CUMMINS. If the Senator from Rhode Is-land will per Mis:souri field. I merely wish to read section 3 of that agree mit- me-- ment, and that agreement is one of the agreements which is to Mr. ALD.RICH. Will the Senator yield to me for not more be- validated by this proposed law. Section 3 in that case pro than a minute? vided tbat- . Mr: CUMMINS. I yield. A committee shall be appointed to establish rates; rules, and regula· Mr. ALDRICH. Mr. President, I found myself in such sub tions on the traffic subject to this association, and to consider' changes therein, and make rules for meeting the competition of outside lines. stantial and positive disagreement.with the Senator from Iowa Their conclru;ions, when unanimous, shall be made effective when they with reference to every paragrar>h and every provision of this so order, but if they differ, the question at issue shall be referred to bill, and the Senator from Iowa was in such disagreement with the managers of the lines parties hereto, and if they disagree it shall be all the friends of this measure, so far as I was able to see that arbitrated in the manner provided in article 7. it was impossible for us to go into an extended discussi~n in That is the heart of the trans-Missouri. traffic agr.eement. It the committee as to what changes and amendments should be reached the Supreme Court upon a.. bill filed by the United made-; but there is no reason why Senators should not favor States under the antitrust law. There it was contended by the and secure the adoption of such amendments of the bill as railroads, as has been described by the Senator from Texas commend themselves to the majority of this body. [Mr. BAILEY], that the antitrust law of 1800 did not apply to ..Mr. CUMMINS. l\Ir. President, I think we are to be con railroads. It was learnedly and carefully and fully argued by g~-a tula~ed u:pon being assured that the Senate may amend this some of the most distinguished lawyers on the United States. bill as its wisdom may suggest, but I did not suppose that the I hope that every Senator, before he is required to vote upon privilege I accorded to the Senator from Rhode Island would this bill or upon this section, will be able to read the majority be used for the purpose that he. has used it r state in answer opinion of the Supre.me Court in the Trans-Missouri Freight to what he has just said, that he neve1· heard any ~mendment Association case. It is one of the clearest expositions of the proposed by me to thi~ bill, that .he did not hear my sugges dangers which may be incUITed by such agreements, and gives tions. before the committee with respect to the bill I intro also all the reasons that can possibly be given by those who duced myself. Just how the Senator from Rhode Island is favor. such agreements. The result was that the Supreme able to state with such confidence that he would have rejected Court held as to this t+affic association and this agreement, every amendment that I might have offered if the bill had been the one to be unlawful and the other to be void under the act considered by the committee, is more than I can understand. of 1890, and the TranB-71\fissouri. Traffic Association dissolrnd. If he means to assert that he and I look upon most public Just a little while. afterwards a similar. bill was filed against questions from a different standpoint, then he is quite correct; the Joint Traffic Association. That association embraced the but I had hoped that, even though we do look at some questions rates from Chicago to the. Atlantic coast, and there were, a I from a radically different point of view, he might have listened remember it,. 31 railroads involved in the agreement. Again in the Interstate Commerce Committee to the amendments the question reached, the Supreme Court in the case of the which I am now arguing before the Senate. The Senate must- United States against all of these railroads concerned in and judge whether the amendments that I would have offered to this participating in the Joint Traffic Association ;. ahd again the bill, if it had been considered in the committee, are so radical condemnation of the Supreme Court of the United States was HD.d so absurd that they did not deserve the consideration of recorded. Whx? Simply because it was said in each of these the Senator from Rhode Island or the other members of the cases that the thing sought to be preserved in the law of 1800 committee. Ha~e I propo.sed as yet anything so unreasonable was competition. The only purpose of. passing the antih·ust as to warrant the suggestion made by the Senator from Rhode law was to save to the people of the United States, if possible, Island? Sena tors, I long ago-and I mean by " long ago " some competition in their commercial, industrial, and trans· long ago in the history of tliis session of Congress-abandoned portation life. The Supreme Court in these two cases illus all hope of being able to improve the interstate-commerce law; trated, with a force and with a comprehensiveness tfiat it would and I am doing the best I can now to merely hold on to what he vain for me to even.. attempt ta emulate, the effect of these we have. I shaU be wholly satisfied' if this bill emerges 'from ·agreements upon competition. Congress so that it will insure to the people of the United Ever since that time the railroad companies of the United States those privileges. and that protection which were granted States have been trying- to remove from their ·own operati-0ns to them by the act of 1906, and I ha-ve not as yet suggested a the antitrust law, and finally that result is accomplished in single· amendment that was not intended .to restore the law to this bill, foi= JI repeat-- the form substantially that it has borne for four years. If my Mr. ALDRICH. . l\fr. President, will the Senator permU me amendments. therefore were so radical and so ridiculous that 1t ·to ask him. a, question? was' unnecessary to hear them before the committee, I was The VICE-PRESIDENT~ Does the Sena.t<>r from Iowa y'...eld taught iII the school of 1006; and you, Senators, are'· responsible to the Senator from Rhode Island? for the views that I entertain and which. I hu.-ve endeavored to Mrr OU.MM.INS~ I do. engraft upon this bill. Mr. ALDRICH. Does the Senator think that the President of 1910. CONGRESSIONAL RECORD-SENATE. 3363 the United States and the Attorney-General of the United Mr, ALDRICH. I am not in the habit of hiding behlnd any States had that purpose in view? body, the Senator from Minnesota or anybody else. That is not Mr. CUMMINS. I know that the Attorney-General had that my habit, and I do not intend to commence it now. The Sena purpose in view. It is not a conjecture. The Attorney-Gen tor from Minnesota was asking why this section was in the bill. eral wrote this bill, and it declares a repeal of the antitrust law I answered, telling him wh-y it was here; and if it does not so far as these agreements are concerned. It 1s idle now to carry out the purpose of its authors, let us make it do so. I fatigue our minds with regard to technicalities. The agree am not getting behind anybody or trying to avoid my own re ments that I have just mentioned, made in the absence of the sponsibility as a Senator of the United States in connection bill which we have now before us, would be unlawful. They with this matter at all. I say that this provision is in the bill were so declared by the Supreme Court, but under the bill because it was recommended by certain high officials. The that we are about to pass, if we pass it, the agreements would President of the United States and the ex-President of the be lawful. United States on several occasions have recommended a change Mr. ALDRICH. Mr. President, I am sure the Senator does of this character in the interstate-commerce law. The plat not mean that. form of the party to which I belong-and I suppose the Senator The VICE-PRESIDENT. Does the Senator from Iowa yield from Iowa does-- to the Senator from Rhode Island? Mr. CUMMINS. I know I belong to it, and I suppose the Mr. CUMMINS. I mean just what I say, and I say it after Senator from Rhode Island belongs to it, but I will come to the most ma tu re reflection. that point directly, Mr. President. Mr. ALDRICH. I doubt it absolutely. This bill delegates Mr. ALDRICH. The platform of the party gave distinct to the commission the right to fix maximum reasonable rates. approval to this particular change. The bill provides that the rates provided for in the agreements Mr. CUMMINS. I will bear the matter in mind, Mr. Presi shall be filed with the commission-and I wish to read just for dent, when I come presently to consider the platform. a moment, in answer to the question asked by the Senator from Mr. BACON. Mr. President-- South Dakota some time since, just one sentence. It will take Mr. ALDRICH. I do not expect to have the Senator from me but a minute: _Georgia agree with me as to the reason, but I think the pro And such agreement of carriers, though filed with the commission, vision as it stands accomplishes what the Senator from Iowa shall not be deemed a tarur or schedule of rates, fares, or charges col lectible from the public, or operate itsell to alter any such tariff or says it ought to accomplish, and if it does not, so far as I am schedule whensoever filed and published- concerned, I am ready to join with any Senator to amend it so Which seems to be perfectly definite. as to make it perfectly definite and plain. Mr. CUMMINS. The Senator from Rhode Island can hardly Mr. BACON. Mr. President-- deceive himself with respect to the language that he has just The VICE-PRESIDENT. Does the Senator from Iowa yield read. That means simply that the rates which may be con to the Senator from Georgia? tained in a traffic agreement shall not be established rates on Mr. CUMMINS. I yield. the part of the railways under the law as it now is, but that Mr. BACON. With the permission of the Senator from Iowa each railway must for itself file its rates just as it has done I want to recall an incident which I once witnessed in this heretofore. That is the whole purpose of the language just Chamber when a very distinguished Senator who then orna quoted by the Senator from Rhode Island. mented this Chamber, and who has now, unfortunately, gone to Mr. NELSON. Mr. President, will the Senator yield to me his long home, standing immediately in front of where the Sen for a moment? ator from Rhode Island stood a moment ago when he invoked The VICE-PRESIDENT. Does the Senator from Iowa yield the name and influence of the President of the United States- to the Senator from Minnesota? the late Senator Hoar-resented and denounced it as an in Mr. CUMMINS. I do. vasion of the privileges of this Senate for any Senator to state Mr. NELSON. I want to ask the Senator from Rhode Island in this place whether the President of the United States was or what this language in section 7 of the bill means and what is was not in favor of any proposed legislation. the purpose of putting it in? I quote from the bill: Mr. ALDRICH. Mr. President, I did not say what the Presi Agreements between common carriers subject to this act specifying dent of the United States was in favor of. I simply stated what the classifications of freight and the rates, fares, and charges for trans every man in the Senate knows and every man in the United portation of passengers and freight which they agree to establish shall States knows, that this bill was prepared by the Attorney-Gen not be unlawful under the act to regulate commerce, as amended, or under the act approved July 2, 1890. eral of the United States under the direction of the President· but I did not undertake to say what their motive was in offering What is the object of putting that provision in if it is not to it here. · · make the railways immune from the provisions of the antitrust Mr. BACON. If the Senator will pardon me, I want to say law? Why not eliminate that language if that is not the pur that I think if the President of the United States or the Attor pose? Mr. ALDRICH. Mr. President, the purpose of this provision ney-General can prepare a bill and bring it to this Senate, and it was to allow agreements to be made as to rates, provided those can be passed under their dictation, the Senate has fallen from rates were reasonable and the classifications were reasonable. its high estate. If they are unreasonnhle, they get no power under this pro Mr. ALDRICH. Mr. President,• there is no- man in this body vision at all, and whether they are reasonable or unreasonable that would resent the dictation of the President of the United is a matter to. be decided by the Interstate Commerce Commis States sooner than I would. I have done it when it required~ sion, who are giveri the power of initiative by this bill. I have I will not say "courage "-but I have done it on many occa no question about the effect of that language, but I myself have sions, and I expect to do it hereafter whenever the opinions of no objection to providing definitely that the rates shall receive in the President of the United States do not comport with my advance the approval of the Interstate Commerce Commission. judgment; but I-- Mr. CUMMINS. That is all I have ever asked. Mr. BACON. The Senator from Rhode Island has been here Mr. NELSON. Why inject these new difficulties? What is twice as long as I have. I have been here fifteen years, and the object of putting in that language? never, until within the past twelve months, have I ever known Mr. ALDRICH. The object of putting it in, I take it, by the the repeated admission and ac:knowledgment of the fact mad~ gentleman who put it in-because there is no use of disguising on the floor of the Senate, as it is made by the Senator from the fact that this bill is here prepared by the Attorney-General Rhode Island to-day, that we are proceeding in the considera of the United States, under the direction of the President; not tion of measures which did not originate with this body, the that that precludes us from amending it at all, but the purpose terms and particulars of which were not thought out by any of the authors of the bill is the purpose of the President and of member of this body, but which are accepted at the dictation of the Attorney-General-- those who do not belong to the legislative department of the Mr. NELSON. 1\fr. President, the Senator must not hide Government. behind the President. That will not do in this case. To hide Mr. ALDRICH. Mr. President, the Senator has been here behind the President is small business. long enough, I am sure, to have voted for and supported hun Mr. ALDRICH. I am not hiding behind the President. dreds, or at least scores, of measures that have been prepared Mr. NELSON. We are discussing this bill on its merits, re by the executive department. There never was a more striking gardless of either the Attorney-General or the President. I illustration of that than during Mr. Cleveland's administration. respect both officers; but it will not do for Senators to meet l\lr. BACON. I was here during the last two years of Mr. arguments that are made here, and say "this is the bill of the Cleveland's administration, but I do not recall any such in President" or "this is the bill of the Attorney-General." That cident. 1 is not the way to legislate; and that is no way to argue to the Mr. ALDRICH. Did the Senator vote for the repeal of the Senate. purchasing clause of the Sherman Act? .3364 CONGRESSIONAL -RECORD-SEN.A.TE . l\fARcH 18, Mr. BACON. That was -befol'e .I came here; ·but i I do ot -terms of the tllid -section of ·the . second article of the Con- think even that bill was prepared by-the Executive. stitution of the United States, which .has no more solicitous -1\Ir. ALDRICH. I .have .known bills . to be1prepared under .guardian .than ithe Senatorr!rom· Georgia. The ·words of the Democratic as well as Republican -administrations, mnd I have section, describing the .powers of the.President, are: -1 k:nown that the Senator from Georgia ..and -every other Senatol" .He shall trom•±fme ·to time. give to the ·congress information of th'e when such bills reached here- acted "Upon.J:lls oath .as a ·Senator state of the Union, and recommend to their consideration such measures .and upon .his own ;judgment. ·1 do .not consider myself .bound ·as he sha:ll judge ·necessary and expedient. by -any of the provisions of the pending bill unless I ·believe in It would seem to me quite incredible that when the Presi them myself as a Senator of the tJnit~d States-not one ·wol!d .dent of ihe United-'States.nas recommended to Congress a meas -Or syllable. I was only stating an hl>Btorieal fact, which .. is ure w.hi.ch .he, .. .in the discharge' of this eonstitutional .duty, Jrnown to ·every Member of this .body, -as to .how ·.this bill was deems expedient, ..aye, when two successive Presidents of ihe prepared. -United States have recommended the same measure, it should Mr. BACON. Then, .Mr. President, hy is.it that at every be contrary to .any rules to refer to the fact that the .measure -stage .and turn of this ..discussion we a.re .hearing about the fact proposed is in accordance with the recommendation of the that the President of the United States and the Attorney- -President. General have prepared the.bill,'3.nd why are we· being told :what - Mr. BACON. l'tfr. President- they thought and what they intended us to understand? The VICE-PRESIDENT. ·.Does-the Senator from Iowa ,yield l\fr. BAILEY. I should like to answer that question. to the Senator from Georgia? .l\1r. ALDRICH. I should like to answer it myself a little Mr. BACON. Have I the permission of the Senator from fir t. [Laughter.] The Senator .from Minnesota '[Mr. NnsoN] rowa to·respond to- the-Senator fram New York? asked why this section is here and what were the motives of 1\fr. CUMMINS. I should like to correct a .misapprehen ion the men who put it here. He will have to inquire of somebody on the part-of.the. ·Senator from New York [Mr. RooT], and then else than myself. Whether it meets with my approval or not I will yield to the Senator from Georgia. is a question for me to decide; and I intend to 'decide, without .The bill under consideration is not the bill recommended by reference to any~g outside -Of my own judgment and my ob- the President, and attached to the message which the President ligation as a Senator of ·the 'United ·States. There is-no mis- Yery .appropriately .and quite within .his rights transmitted to taking my attitude about this matter. I will assume that the Oongress early in January. The bill before the Senate has been Senator 'from Georgia and the Senator from Texas are in the changed in v.ery ·many and very material respects since that same position, but that they will not vote against a measure time upon suggestions of the Attorney-General. because it was prepared outside of this Chamber. Mr. BACON. I am very much oblidged ·to the distinguished The Senator .from Iowa on yesterday made .a long and labored Senator from New York for the compliment he -pays me in argument that this bill had no right to be here, and he ·appar- suggesting that· possibly ·I am solicitous for the careful guard ently is opposing it because it is here -under -the conditions whicn ing of all the provisions of the Constitution, th-Ough I do ·'Ilot it is. That does not appeal to me. I have-no :-Prejudice one at all arrogate to ·myself the high office of being one chaTged way or the other on account -of the a-uthorship ef this bill; but with any greater degree of ·responsibility or of solicitude in I am bound ·;here to investigate every one of its provisions, every that regard than any other member of the Senate is, or at least syllable and every word of ·it,· and to act upon it independently, should be, considering that each one of us before we took our as the Senator from Georgia will, without any partisan bias office in this body was required to take a solemn oath that he whatever. would -thus preserve it in all of its features. Mr. BACON. And yet the Senator, Mr. "President, ·and those I desire to say to the Senator that in what I have· suggested who · nre acting with him are constantly seeking to bolster up I have had ·no 'disposition or desire to unduly criticize the th's bill by alluding to what the President of the"United States President, but that I am animated simply -with a proper solici thinks and desires and what the Attorney-General thinks and . tude fo.r the recognition and preservation -of the rights and ue ires. privileges of this body .as a branch of the legislative department Ur. ALDRICH. I have not undertaken to bolster llP ·this of the Government. I have not been. forgetful of the provision bill at all. I am simply saying that I·think it is a little out of of the Constitution which the Senator from ·New Y.ork has so place for .a Senator either to oppose this bill or· to favor it be- .kindly read to the Senate, nor am I forgetful of the exalted ca.use the .President of the United States is 'for it. station and of .the .high constitutional prerogatives of the 'Mr. CUMMINS. Mr. President, may I ask the Senator from President. ·Rhode Island a question? Why did the ·Senator from Rhode But, Mr. President, I think I can say with absolute confidence Island a few moments ago ask me if I meant to impute to the that the .Senator himself-does not construe that provision to President of the United States and the Attorney-General the mean that-the President of the United States is to communicate motive to repeal the antitrust la.w with·respect to traffic agree- -to the Congress :what he may deem to be of importance in..the ·ments? way of information, or of measures which are entitled to con- Mr. ALDRICH. Because the bill is here, and we know how sideration by the Congress, in .any other way than in a .message it came here. I am not undertaking -to qu~stion the motives '<>f to Congress. The Senator .from New York is too good a laWYer, the men who sent it here, but when the Senator said that it is being :recognized as-one of.the best in .the land, for me to. suggest an evident attempt to repeal tile -antitrust law, "'I simply 1lsked to .:him any ·argument in support of such a proposition. Nobody him whether he thought the well-.known a,uthors of this bill had disputes the ·right, but, <>n the contrary, everyone recognizes that purpose ;in -view. the right of the .President of the United States to .formally ~ Mr. · BAILEY. Now, ·.Mr. r President, .might...I have permission communicate ·to Congress and to suggest any matter -0f legisla- ·to say ·a word? tion which he may .deem_proper and important for the ·attention i'l'he VICEJ.;i>RESIDENT. Does the ·Senator from ·Iowa yield of the Congress. to the Senator from Texas? But .that is a very di{i:'erent matter from the framing .in every Ir. CUMMINS. .I -yield. detail of measures outside of-Congress, not only one, but many, 1\fr. BAILEY. I want to smoeth this ·matter ·out .between the "Which .are advertised in the newspapers as .administration meas- · Senator from Georgia.and the Senator from Rhode ·island. ']}he ures, with the full knowledge and avowal '.:that their enactment is real purpose the Senator -from Rhode Island ..had :·wa.s .not to . required of the Congress. When such requirement can be .undis influence us or-to iniluence the other side; .bnt 1t-·was to call the ·gu.isedly made, ·and :is .as undisguisedly acquiesced in by Con attention of the Senate ·and of-the country to the-1'.act ·that the .gress without regard ·to· the individual views of its Members, Senator from Iowa is not in agreement with .an :administrati(ID then .I r.epeat the le_gislati:ve .department .has fallen.from its high measure. ·Whenever he wants to accentuate. that ·kind of .a dif- :estate. . ference .I am ready to help. Mr. President, there Js .a wide difference between the J>er- .. Mr. ALDRICH. It did .not need .any ·.arguments -or state- formance of the duties as contemplated .by the Constitution, in ments of. mine. ·which the.President by. reason of .his continuous engagement-- ·Mr. BAILEY. That wa:s fhe ·p.urpose·the Senator had. ·Mr. .CUMMINS:rose. Mr. CUMMINS. I think :that .. is ·fairly well known. Mr. BACON. As I have .started, I hope the ·Senator .from .Mr. .ROOT . . Mr. President-- Iowa will :let me finish my ·answer. :Engaged as the ·· President ·The VIOE-ERIDSIDENT. Does .the·.Senator ..from Iowa yield . is in the continueus performance of his duties and the public .to .the Senator from ·New-.York? :matters constantiy-:under Jl!.s attention. there is a ·-wide _difference 1Alr. CUMMINS. I do. ' .between: his not only -havmg ·the power, .but -also bemg under Mr. .ROOT. ...Mr. President ::r -can .not refrain . from calling -0bli:gatlon to ·communicate to Congress matters ef public inter· the .attention of the Senator from Georgia [Mr. BACON] to.the ·est which-may ~ require legislation,.aruLhis proceeding.to secure i>r-0visi-0I1s fif :an instrument with which~ can not• believe ·fue, ~.enactment e_f ;certain .IDlea.snres··c.ommunicated _to Congress usages of the Senate ai:e .·at --variance, nd specllica.Uy .±o e man altogether different way, and with the advertised purpose 1910. CONGRESSIONAL RECORD-SENATE. 3365 to require the enactment of those measures. The functions of Mr. ALDRICH. The presence of the Senator from Georgia the executive and legislative branches of the Government should in this Chamber is an indication that Senators are not sent here be exercised separately and kept apart. or kept away from here on account of patronage. I resent that As I have been permitted to respond to the Senator· from imputation. New York, I hope the Senator from Iowa will permit me to . Mr. BACON. I did not say that. go a little further to illustrate this matter. There is a wide Mr. ALDRICH. That is what I understood the Senator to difference between the proper function of the President of the say. United States in the suggestion of proper matters of legislation l\fr. BACON. I did not say that. I said, on the contrary- and his going forward to practically control Congress in the Mr. ALDRICH. What the Senator said comes pretty near to enactment of legislation. It is a matter of degree under dif that. He said that the President might withdraw patronage- ferent circumstances. Mr. BACON. I did not. Mr. President, I desire to narrate something which illustrates Mr. ALDRICH. And defeat- the fact that a deliberative body can come to a point where it Mr. BACON. I did not. ceases to be a deliberative body-where it ceases to have any Mr. LODGE. He said it was the same thing. will and is only the expression of the will of the executive. I Mr. BACON. I did not. What I said was this, if the Sen wish to narrate what I have seen in another country, a country ator from Rhode Island will permit me to repeat it. I said having the form of a republican government. I will not name that in narrating that incident, I said to a group of Senators the country, because it would not be proper that I should do that the President could not exclude anybody from the legisla so, but I am very willing to tell any Senator who may ask me tive Chamber, and a Republican Senator replied, "Yes, but he what country it was. I will not state it in this place. may take the patronage away, which is the same thing." I I have been in the capital of a country which in form is did not say that. I was quoting what the Republican Senator republican. I have for a week attended the sessions of a house said. corresponding to our 'House of Representatives. I have seen Mr. ALDRICH. I should say the Republican Senator ought the deliberations of that body during all those days in which not to be quoted unless he is named. But that was not what I there was not a word of debate, in which a motion was never wanted to say. made by a member of the house, in which nothing was ever The question of the preparation of measures by the Execu done except to vote upon bills, and in which I never saw a vote tive or by people connected with the executive department is cast in the negative upon any bill. Day after day, without a not new. It not only applies to the President of the United word spoken in debate, I have seen measure after measure States, but it applies to the executives of the States. If I am read to that body, and then the roll called-they did not take not misinformed-and I do not want to say anything with the vote in the ordinary way, but always by a call of the respect to the Senator from Iowa that is incorrect-it was his roll-and in no single instance, in a week's observation of that habit during the seven or eight years that he occupied the ex body, did I ever see or hear one single member vote in the ecutive chair of the great State over which he presided to send negative, but always "yea." to the legislature of Iowa messages prepared, with his recom Being struck by that remarkable scene, I sought an inter mendations, and I think his power o\er the legislature of view with one of the members and asked him: " How is it Iowa was such that they rarely if ever .failed to pass the acts that in no instance has there been cast a negative vote upon which he recommended. any bill? How is it that nobody has anything to say? How is l\Ir. CUMMINS. Mr. President, I do not know that we will it that nobody ever makes a motion or objection to anything? ever return to the bill before us, but I must answer the Sen And," said I, "for illustration, to-day I saw two long bills ator from Rhode Island now. passed in the house. The clerk read the bills ; then the proper I was governor of Iowa for seven years. In that time I officer of the body called the roll, naming each member present, never suggested or dreamed that I could send to the legislature and in each instance each of the two bills was passed by unani a bill which it was expected to pass. mous vote, the only answer being ' yea ' on the part of each Mr. ALDRICH. That is not quite the question. l\Iy ques member." He said: " Those were simply bills sent to us by tion was whether the Senator had prepared bills, or had them the President, and there was nothing to debate and no reason prepared by the executive department, which were offered and why we should vote against them." adopted. I did not suppose he sent them by messenger. I will not detain the Senate longer, but I want to state some Mr. ROOT. Mr. President-- thing that happened a few days ago. I narrated that incident to a group of Senators, some of them Democrats and some of The VICE-PRESIDENT. Does the Senator from Iowa yield them Republicans, and after narrating it I said that if any to the Senator from New York? member of that house of representatjves in that country had Mr. CUMMINS. I do. voted in the negative, doubtless he would have been dismissed Mr. ROOT. Mr. President, I will not invoke the indulgence from office. I said, of course, the President of the United States of the Senator from Iowa for more than a moment. can not dismiss anyone from legislative office, and one of the I wish to supplement the remarks of the Senator from Republican Senators spoke up and said: "Yes; but he can take Georgi~ [l\Ir: BACON], with which in general I agree most fully, away the patronage of a Senator, which is the same thing as by saymg this : It has been for a long period the uniform prac dismissing him from office." tice of committees in both branches of Congress to call to their Mr. President, that is all I desire to say in the matter. I assistance in considering and shaping measures referred to did not expect to have the necessity of saying this, because by them for their consideration and report the executive officers of no suggestion would I impute a wrong motive to the President; the Government who are in possession of practical and detailed but when the Senator from New York reads a section of the information affecting the subject-matter of the measures. Constitution and implies that I am forgetful of the right of the I am sure the Senator from Georgia will agree with me that President of the United States in this matter, it is proper that many a forenoon which he has passed in the Committee on I should point out what I think, in all courtesy and respect to Foreign Relations in discussing, and sometimes with pencil and him, is his constitutional function. paper drafting and redrafting, provisions of legi la tion and of While, of course, I have no anticipation that men of our blood treaties with the Secretary of State has been well spent. I am and men of our race will ever be reduced to the position of the sure the members of the Committee on Military Affairs of the country to which I have alluded, it is simply a question of de Senate will agree with me that many a day passed with the gree. While men may not come to the point where they will Secretary of War in performing some duties regarding matters unanimously vote in accordance with what in effect is prac before the committee has been well spent. That is the general tically the dictation of the executive department even though rule with the committees of both branches of Congress. not so intended, it is certainly an approach to that condition Mr. President; one of the weaknesses of our system is the when the majority of them can accept a measure simply be lack of perfect coordination and understanding between the cause it happens to come from that source; and when the ma ·legislators and the Executive. The other great representative jority thus act, the practical effect is the same. The Congress govern.ments of the world get over that difficulty by having the is by such act made to abandon its legislative function. heads of the government departments occupy seats on the floor Mr. ALDRICH. Will the Senator from Iowa permit me for of the chamber of the legislative body. Great Britain does a moment? that; France does that; Germany does that; Austria does that; Mr. ELKINS. l\.tr. President-- Italy does that. The VICE-PRESIDENT. To whom does the Senator from Mr. BACON. And they are all members of the body in which Iowa yield? · they occupy seats. · Mr. ALDRICH. For one minute. Mr. ROOT. They are all members of the body in which they Mr. CUMMINS. I yield to the Senator from Rhode Island. occupy seats. 3366 CONGRESSIONAL RECORD-SENATE. MARCH 18, Their presen.ce in the body, ready at all times to bring to the Mr. CUMl\flNS. The Senator from Iowa is so tender hearted illumination of the subjects under discussion their detailed and that he can not refuse any request, and therefore he yields to practical knowledge of administration, is of the greatest assist the Senator from West Virginia. _ ance. We can not do that. I would not change our system, Mr. . Mr. ELKINS. I thank the Senator most heartily. President, to make it conform to that European model. But President Roosevelt, in his message to the first session of the the thing which is accomplished by the adoption of that system, Sixtieth Congress, says: it has become the settled and the sensible practice of our Gov As I stated in my message to the Congress a year ago railroads should be given power to enter into agreementsJ subject to these agree· ermnent to accomplish by the presence of the heads of the ments being made public in minute detail ana to the consent ot the executive departments in the rooms of our committees while Interstate Commerce Commission being first obtained. they are considering the subjects referred to them. ·Mr. CUMMINS. I am heartily in favor of that now- Mr. CUMMINS. I hope the Senator from New York will . Mr. ELKINS. Let me read again. not think me ungenerous if I suggest that I should like to re Mr. CUMMINS. As I have said here a score of times. The sume soon the consideration of this bill. difficulty is that the pending bill does not so provide. Mr. ROOT. Will the Senator from Iowa add to his very Mr. ELKINS. I will read some great courtesy, which I highly appreciate, permission that I Mr. CLAPP. Just one moment. may say one sentence more? · Mr. ELKINS. I want to read on. Mr. CUMMINS. Certainly. Mr. CLAPP. I am not only willing, but I insist upon that now. Mr. ROOT. It is: According to my understanding, the bill The VICE-PRESIDENT. The Senator from Iowa has not which is now before· the Senate was recommended in original yielded. form to the Congress by the President in a formal message, Mr. ELKINS. I have not yielded to the Sena tor from Minne was introduced by the Senator from West Virginia in this body, sota. I want to read from President Roosevelt again. and referred to the committee of which he is chairman. That Mr. CUMMINS. I decline to yield. · committee, proceeding to consider it, taking a considerable Mr. ELKINS. If you will not hear what Roosevelt had to amount of testimony, called in, it appears, the Attorney-General say, what will you do? of the United States, who had been engaged in enforcing the Mr. CUMMINS. I am thoroughly in favor of it. I have law which the bill proposes to amend, and secured from him asked the committee from the beginning to do it. My amend just the same kind of assistance that it is the universal practice ment proposed it, and the majority of the committee stand in of our committees to secure from the heads of executive depart the way of putting into this bill the very provision that Presi ments. dent Roosevelt recommended to Congress and which Congress In the course of that consideration, in the light of the advice up to this time has refused to recognize. . and suggestion invited from him by the committee, thi.s bill has l\Ir. ELKINS. I can read some more. been modl.fied and varied in many particulars, and is now re Mr. CUMMINS. I proceed now, Mr. President- ported by the committee. [Mr. ELKINS started to leave the Chamber.] For one I do not hesitate to say that one strong reason why Mr. CUl\fl\flNS. I hope the Senator from West Virginia will I am inclined in favor of the measure is that it is in substance not fly. the measure recommended by the ·President of the United States Mr. ELKINS. No; I will be right back. in the performance of his constitutional duty. Mr. CUMMINS. Mr. President, we are considering the ques Mr. ELKINS. If the Senator from Iowa will allow me tion, Shall Congress repeal the antitrust law with respect to The VICE-PRESIDENT. Does the Senator from Iowa yield traffic agreements, with respect to agreements specifying rates to the Senator from West Virginia? charges, and classifications? I assert again that this sec tio~ Mr. ELKINS. I beli-eve he asked me to cite-- repeals in form the antitrust law in regard to the e provi ions. Mr. CUMMINS. I can not hear the S~nator from West Vir It does retain the jurisdiction of the commission over all the ginia. rates of railroad companies, whether they are contained in Mr. ELKINS. I think the Senator from Iowa asked me these agreements or whether they are tiled in the schedules Mr. BACON. I hope the Senator from Iowa will permit me under the law as it is. to say that while I do not now further trespass on his time, I But it is idle for the Senator from Rhode Island and idle for should be glad under other circumstances to respond to the Sen the Senator from West Virginia to contend against the obvious ator from New York. proposition that this repeals the antitrust law so far as the . Mr. CUMMINS. I have no doubt the debate is very interest agreements themselves are concerned. ing. I should like to ·reply to the Senator from New York, be 'rhe Senator from Rhode Island doubts my Republicanism. cause he has misconceived the history of this bill and its pas He has been doubting it ever since I entered the Senate, and I sage· in the committee. have no doubt he will continue to doubt it so long as I remain Mr. ELKINS. Will the Senator from Iowa yield to me? in the Senate. I do not wonder at that, but I want to suggest Mr. CUMMINS. I should like very much to resume the con that I am not alone in my view. He said that the committee was endeavoring to carry out the Republican platform of 1908 sideration of the question, Why should we repeal the antitrust with regard to these agreements. Allow me to read our plank law? of that year : Mr. ELKINS. Bearing upon that, I ask the Senator's in We believe, however, that the interstate commerce law should be dulgence for a moment. further amended so as to give railroads the right to make and In the course of my reply to some questions which the Sen publish traffic agreements subject to tbe approval of the commission, ator asked me, I referred to President Roosevelt's recommenda but maintaining always the principle of competition between naturally tions. Will he allow me to read from them, as stated in his ~~~;t~Cal~ve:r.and avoiding the common control of such lines by any messages? In the minority report we stated our opinion to be that this Mr. CUMMINS. May I ask if the Senator from West Vir section put into effect the agreements on the part of the rail ginia intends to work into my speech all that he has to say way companies without the approval of the commission, made about this bill? them effective before the commission examined them at all, and, Mr. ELKINS. No; I do not. indeed, there is no jurisdiction in the proper sense to examine Mr. CUMMINS. Then I suggest that you reserve what you these agreements in any respect. The majority report paid its have to say and put it into your own speech. . respects to us in the following language : Mr. ELKINS. I asked the Senator's permission, because I The contention that this declaration can · only be complied with by thought he asked me to produce the authority, and I have it requiring the approval ot such agreements by the Interstate Commerce here. It will take but a moment. Commission before they become operative ts- Mr. CUMMINS. What did i ask the Senator to introduce? Now, mark you, all that we have contended from the begin Mr. ELKINS. I think he doubted my statement that Presi ning-these II)inority Republican members of the committee dent Roosevelt had frequently in his messages recommended the composed of the Senator from Minnesota [Mr. CLAPP] and repeal of this part of the law. myself-all we have insisted upon from the beginning is that Mr. CUMMINS. I have no objection to your sending any before these agreements shall become operative, before they thing you please to the desk and having it printed in the shall go into effect, the Interstate Commerce Commission shall RECORD. . examine and approve them. That is one. of the radical and Mr. .Jfil,KINS. I will read just these two lines. astQunding amendments that the Senator from Rhode Island Mr. CUMMINS. But I should like to proceed with my refused to hear from me because of my well-known unsound remarks. views upon all questions. Mr. ELKINS. I will read these two lines. The contention that this declaration can only be complied with by requh·ing the approval of such agreements by the Interstate Commerce The VICE-PRESIDENT. The Senator from Iowa declines to Commission before they become ooerntive is. in the opinion ot your yield, as the Chair understands. committee, destitute of the slightest foundation. 1910.. CONGRESSIONAL RECORD-SENATE. 3367 Now, mark the keen reasoning ot the distinguished Senator r am bound to believe that· these expressions represent llOt from West Virgfuia . only the RepnbUean policy,. bnt thei real view of' the President The rfght to make agreements ••subject ta the approval .of the com of the United states, arul 1 refuse to. accept the suggestions. o-f mission " is obvious1y a very different thing :from the rtg11t to make gentlemen who seem to believe that it will be a com!}l'iance agreements onlp with tM previ&US' approva1- of the commission.. with thfs platform and m harmony with these declarations it That is, it is the view of the majority that the- declaration o.f we pass a bill that· repeals the antitrllst law in regard to- these om platform, which says that such agreements IIIB:Y be made agreements and allow them to pass into effect without the ap subject to the approval of the commission, do.es not require the proval of the commission or without any supervision on the part approval of the commission before the agreements go m1to effect. fJf any government tribunal. I submit .to impartial Senators the :reasoning of the: majority Mr. SUTHERLAND. Will the SenatGr permit an interruption in that respect. I can hardly deal with. it with the pa.tience for the purpose. of asking a question? that one ought to exercise in addressing a body of this kind~ Mr. CUMMINS. Certainly. I understand perfectly that in. the message o:t the President Mr. SUTHERLAND. Unless I should bear some good rea: / of the United States transmitting this bill that seemed to be Son ·to. the-contrary, Iam ve1·y much disposed to agree with what his view as wen, and that he seemed to recommend that ~e the Senator· has sa.id to- the effect that this section of the l:JW Senate should pass a bill which would permit these ngreemen.ts ought to make it dear th11t these traffic agreemenfS' shall no.t be to go into effect without the appr<>vaJ of- the commission. But I effective unless tlle Interstate: Commerce Commission shall ap. ap-peal from the declarations that are- now made, both from him prove them. The Senator has doubtless studied this bill with and from the committee, to an earlier view that was held by great cm.re; I nave not,. and I .want to. submit this question to the President ot the United States concerning this subject. I the Senator. · . beg to read an extract from the speech of William Hmv:xro Taft The evident effect of the section is to take this class of agree at Cincinnati. Obi(), July 28, 1908, accepting the Republican no-mi:... ments with :reference t<> elassmcations and rates. out of the nation for the office of President of the United States. He was operation of the antitrust law and to put them rmder the opera then determining whether he could give his assent to the doc~ tion of the irrters:t:ate: corm:nerce law. The p ovision seems to be trines which had been announced in the Repub.llcan platform that this class of agreements shall not be unlawful under the held a few weeks before, and I assume that his view then was antiuust law ii they a.re- filed with the commission. Bnt the the deliberate judgment of one who was about to ask the snf: provision goes. ®. andi stipulates that the commission shall frages of the people of. the United States for the high office he still have conh·ol over the· rates. now occupies~ He said: .Ml'. CUMMINS.. The.re n.e-ver was any l}roposition to take It rs agreeable to note rn this regard that the Republican platlOl"m away from the commission the jurlsdictio.n over rates. expressly and the Democratic platform impliedly, approve an aimend Mr. SUTHERLAND. I understand. I .had n°'t qnite reached ment to. the intci-state-eommerce. law b This was the policy of" the Republican party1 .affirmed in its tion to be put upon pie words, but if it were. the concJusion tha.t platform, explained in the letter of aceepf:ill)ce,. reite~ated in the l have annomiced would Still be. true; that is to say,. the agree important address by the· President dming· his recent joarney. ment has nothing whatsoever to do with the jurisdiction or t!re 3368 OONGRESSION AL RECORD-SENATE. ·MARCH 18, commission Jn inrnstigating the rates. The commission retains party through a long series of years, until they did receive the the power over rates, ~ut it has no _power whatsoever: over the approval of a tribunal created by the Government for the very agreement, and no jurisdiction is given to it to inquire into it purpose of protecting the people against the avarice and ag in any respect. · , . gression of the railway companies. Mr. SUTHERLAND. . But the rates are the effective part of I refer again to the fact that our distinguished leader so the agreement. The agreement without the rates amounts to understood the platform when he became the candidate of nothing. , , . : , .. our party. But he so understood it at a very much later time, Mr. . CUMMINS. I have _just P,resented to the Senato ,two because in September of last year, to be specific, on the 20th well-known cases before the Supreme Court of the United day of· September last, in a speech in Des Moines, which was States of very effectual traffic agreements t~a.t did Ilot _m _en- everywhere proclaimed to. be his studied and serious effort to tion the rates in them. . . - ; · , _ advise the people of his views with regard to this particular Mr. SUTHERLAND. I am speaking _ o~ tlle rates to be es- question, he there declared that he was in favor of these agree tablished under -the bill. . . . . ments, provided always before they became effective they shall Mr. CUMMINS. All rates under thi~ - bill. are_established -by; be approved by the Interstate Commerce Commission. ' filing with the commission the schedules of rate.s. ·.: _•. _, __ . I do not know whether he has changed his opinion upon this Mr. SUTHERLAND. But this particular : ag~·eement itself: important subject or not; it is for others to inquire with respect amounts to nothing until the rates· are provided for. ·That is to that matter. I have found it very difficult to harmonize the the point I want to make. . . message of the President in transmitting this bill to the Senate [At this point Mr. CUMMINS yielded the fioor for the dny.] with his declarations upon the two occasions to which I have referred. I will leave others to effect that reconciliation, if Thursaay, Ma-rcli 11, . ~910. they can; and if they can not, then I ask that the· interpreta Mr. CUMMINS. Mr. President, when the debate. upon the tion which is the natural constru<;tion of our platform and the bill to amend the interstate-commerce law closed last evening, construction which he twice placed upon it in previous addresses I was considering that section of the bill which proposes to re shall still be the interpretation that will guide the Senate of peal the antitrust law, in so far as traffic agreements between the United States. · railway companies are concerned. I beg to lay again before the There is an excellent reason for this, Senators, and I will Senate the declaration of the Republican party adopted in 1908 take advantage of the time which must always be consumed upon this subject. It was there announced : at this hour of the day for Senators to refresh themselves to We believe, however, that the interstate-commerce law should be fur amplify just a little the reasons which led the Republican party ther amended so as to give railroads the right to make and publish to make the declaration which I have read in the hearing of the traffic agreements, subject to the approval of the commission, but .main taining always the principle of competition between natuL·ally compet Senate. ing lines and avoiding the common control of such lines lJy any means There are two forces in business life which can be safely whatsoever. trusted to fix prices, and only two. The first and natural force It is asserted by the chairman of the committee, and very is that of free, unrestricted, unhampered competition; the specifically stated in the majority report, that the section of the second is the power of the Government, exerted through some bill now under consideration is in harmony with this declara appropriate tribunal. tion of our platform. I challenged that statement yesterday. 1 I believe, and I have no hesitation in avowing, that the time challenge it again; and I assert that it is not only not in har will speeC}.ily come-in truth, it has come now-when the Gov mony with the Republican platform, but it is directly, positively, ernment of the United States should undertake to fix all rail and unequivocally opposed to it. way rates. In doing so, we would but follow the example of It was suggested by my distinguished friend from West Vir Great Britain in its legislation respecting England and the ginia [Mr. ELKINS], who just .honors me with his presence, railways of England. The experience of that country through that our platform did not and does not require that these agree a period now of twenty-two years has advi.sed the whole world ments be approved by the commission before they go into effect. that, if railways are not to be owned by the government, their I · repeat that a platform which declares for such agreements rates must and ought to be fixed by the government. when made subject tQ the approval of the commission can mean Slowly we are approaching that problem, and I have no nothing else than that they are to be approved by the com doubt that in the end we will solve it just as Great Britain has mission before they become effective. This section of the bill solved it. But in the meantime, until the Government does does not confer upon the Interstate Commerce Commission the undertake to prescribe schedules of rates for common carriers authority to approve or disapprove these traffic agreements. for all the business of the United States, we must encourage. It does reserve to the commission the same jurisdiction and rivalry and preserve all the competition we can amongst our power over the rates of the railway companies that the com common carriers. The antitrust law passed in 1890 had no mission now has with regard to all rates, but no other or differ other purpose than to preserve competition in the business of ent or greater power. the country. I called the attention of the Senate yesterday to the signifi We understand-eYery reasonable man understands-that cant fact that the President of the United States, in his speech there must be some cooperation among railways. I do not hesi of acceptance delivered shortly after the convention was held tate to say that a certain degree of cooperation is essential in in Chicago, declared in express terms that the platform meant order to preserve stability in the business in which they are that these agreements were to become effective if appro>ed by engaged. the commission. But it is not necessary to go to the length of giving to the l\Ir. BORAH. Mr. President-- railway companies the right to enter into agreements respecting The PRESIDING OFFICER (l\Ir. CURTIS in the chair). their rates. We have neve1: dreamed of so doing; the Republi Does the Senator from Iowa yield to the Senator from Idaho? can convention did not dream that it was so declaring. That Ur. CU.Ml\fINS. I do. convention meant that so far as the rates made by the railway l\lr. BORAH. The language of the platform is that these companies were concerned, which were submitted to the Inter agreements shall be subject to the approval of the Interstate state Commerce Commission for its approval, if the commission Commerce Commission. approved them, then the agreement with respect to them s.!:J.ould l\fr. CUMMINS. I read it again: not be regarded as unlawful. That was the position taken by We believe, however, that the interstate-commerce law should be fur our party in 1908. ther amended so as to give railroads the right to make and publish Allow me to suggest only for a moment what will happen if traffic agreements subject to the approval of the co~ission. this bill passes as it came to us from the Attorney-General aud Mr. BORAH. Now, if A and B should make a contract sub the President of the United States: That great territory west ject to the approval of C, would anybody contend that that of the Missouri River, west of the line that I indicated yester· would go into effect before C had given his approval? day, called the trans-Missouri territory, will, through its traffic Mr. CUMMINS. I never dreamed that any interpretation association, meet and agree upon the rates that are to prevail other than the one just suggested by the Senator from Idaho in that territory. All the railroads engaged there !n business could be put upon this declaration in our platform until the will agree that thereafter no rate shall be changed unless with imagination,- and I must think the enforced imagination, of my the approval of the board of directors created by the traffic friend from West Virginia found in these words the extraor agreement. The rates thus agreed upon will be filed with the dinary meaning asserted in the report of the majority of the Interstate Commerce Commission as the rates of tlle n1llroads committee. in that territory. Every vestige of independence will disappear; I take it for granted, Mr. President, that there is no Senator every motive for competition wm be overcome. There is a great here who will in the future contend that the Republican party difference between cooperation, by which one railrotvl advises intended that these agreements should be fastened upon the another of railway rates, and the creation of a contract that American people, reversing the policy of the people and of the such rates shall be the rates and that the rai1roads e1•tering 1910. CONGRESSIONAL RECORD-SENATE. 3369 into the agreements shall surrender their privilege of initiative mission would have the power to suspend such of them as it and their right of independen.t action. thought ought to be suspended for investigation during a period The Central Traffic Association, governing the business be- of sixty days. I hope I · have ma.de myself wholly clear in tween Chicago and the Missouri River, will also meet. and that answer to the question of the Senator from Georgia. association will agree that all the railroads doing business there I return now, however-and it is intimately connected with shall commit their fortunes to a board of directors or a super- the inquiry just propounded-to what· I was attempting to visory board, and that no rates shall thereafter be changed save express when a call of the Senate was ordered. I have referred, with the consent of such board. The Joint Traffic Association, I will §ay for the benefit of those who were out of the Chamber which would control the rates between Chicago and the At- at that time, to the circumstances which must inevitably occur lantic coast, will meet, and they will agree for all their railroads ·if this law passes. All the railroads of the United States will upon these rates. Their agreement will be filed with the Inter- meet together in their separate territories, through their sepa state Commerce Commission, and the rates which they pre- rate ·traffic associations, and they will enter into agreements scribe will there be filed fixing the rates for all the territory of the United States, and not I want you to consider what the result will be. The Inter-· only fixing the rates, but, if we are to be advised by what they state Commerce Commission will have before it agreements en- . have attempted· to do in the past, they will confer upon repre tered into by all the railroad companies of the United Sta:tes~ sentatives -0f the tl'afllc associations-I mean boards which are and they will have before them how many rates? I wi11 not .created to carry 'on the affairs of the traffic associations-the attempt to say just how many rates would be covered by the sole power of changing the rates thus agreed upon, so far as agreements covering these three great zones of the United the railroads are concerned. States. Mr. SUTHERLAND. Mr. President-- [At this point Mr. CUMMINS yielded to Mr. DIXON, and the The PRESIDING OFFICER. Does the Senator from Iowa roll of the Senate was called.] . yield to the Senator from Utah? Mr. CLAY. Mr. President, with the permission of the Sen- Mr. CUMMINS; Allow me just a moment, and I will readily ator from Iowa, I desire to ask him a question. yield. These agreements, with the rates, will be filed in the The PRESIDING OFFICER. Does the Senator from Iowa office of the Interstate Commerce Commission. · I was about to yield to the Senator from Georgia? say, when I suspended a moment ago, that I would not under- Mr. Q.UMMINS. I do. take to fix the number of these rates, but I am far below the Mr. CLAY. Mr. President, I understand the Senator from figure when I say that there will be more than a million of . Iowa is now discussing the effect of section 7 of the pending them filed with the Interstate Commerce Commission in con- biJJ. nection with the traffic agreements. I think possibly these rates Mr. CUMMINS. I am. will number 5,000,000, but I am sure, from the investigatioµs Mr. CLAY. That section reads as follows: that I have made, that the number will be more than 1,000,000. Agreements between common carriers subject to this act specifying What power has the commission over that situation? It has the classifications of freight an~ the ra~es, fares, and charges f.or trans- just this power and no other that upon tb.e complaint of any- portation of passengers and freight which they agree to establish, shall • ' . ' . . . not be unlawful under the act to regulate commerce as amended, or one mterested, or upon its own motion, it may proceed to in- under the act approved July 2, 1890, entitled "An act to protect trade vestigate any of these rates; and pending the investigation may and commerce against unlawful restraints. and monopolies," or other- suspend any one of them or any number of them for a period wise if a copy of such agreement is filed Wlth the Interstate Commerce . . Commission within twenty days after it is made, and before or when not exceedmg srxty days. I tell you, and your own common any schedule of any rate, fare, or charge, or an:y <;:lassificatlon mad.e sense will tell you, that within that period the commission can pursuant to the agreement is filed with the commission; but all prov1- not investigate a negligible proportion of them It would re- sions of the act to regulate commerce, approved February 4, 1887, as . . . . . · amended, and all provisions of this act and any future amendments qrnre the comm1ss10n five years to mvesbgate these rates and thereof shall apply to such agreed rates, fares, and charges, and such determine whether they are just or unjust. This will be the agreed classifications, and the Intersta~e Commerc:e Commission shall situation that will confront the people of the United State"' have like control over and power of action concermng any agreed rate, . . . . IS fare, charge, or classification. when you have stifled all compe~1tion and destroyed all mde- Under existing law, as construed by our Supreme Court. it is pendence upon the part of the railways by the passage of this impossible for railroads to get together and make agreements bill. I now yield to the Senator from Utah. among themselves fixing classifications and rates. In other l\fr. SUTHERLA:ND .. M~. Presiden~, the. Senator from Iowa words, our Supreme Court has held that such an agreement has passed from the pomt m regard to which I desired to ask among railroads is a combination in restraint of competition, him a question. I understood the Senator to say that under and that the railroads come under the provisions of the Sher- this provision the railroad companies could not only make an man antitrust law. Now, is it not h·ue that the only effect in agreement with respect to rates, but they could make an agree this section is to allow the railroads to make and file these con- ment leaving to a board the power to determine whetl;i.er any tracts or agreements in regard to freight classifications without rate should be changed in the future. I call the Senator's at being in violation of the Sherman antitrust law-that it gives tention to 1.he fact that the language of the provision which tbem that right, that privilege? seems to carve out from the operation of the antitrust act a Then, after these agreements are filed with the Interstate certain class of agreements seems to be very specific. It is as Commerce Commission, as I understand the Interstate Com- follows: merce Commission exercises the same jurisdiction that it ex Agreements between common carriers subject to this act specifying erclses at the present time under existing law, what benefit the classifications of freight and the rates, fares- accrues to anybody by virtue of the proposed change, except In o~er words, the agreements upon which they may enter to exempt the railroads from the Sherman antitrust law in into, notwithstanding the antitrust act, are simply agreements regard to these agreements? Wha.t benefit accrues to any specifying rates; and, as I understand, they would not have body by reason of this change, except to make lawful these the power to enter ·into an agreement respecting any other agreements so that they will not be in violation of the Sherman matter. antitrust law? What benefit does the American shipper, in Mr. CUMMINS. Mr. President, if the section can bear the any respect, get by virtue of this change? interpretation put upon it by the Senator from Utah, it is Mr. CUMMINS. Mr. President, it is very easy to answer the vastly worse than I conceived it to be. If it is to be construed question propounded by the Senator from Georgia. So far as as an agreement between the railroads, specifying in terms this section is concerned, the people of the United States are all the rates which are to be paid by the people of the United not benefited in any way whatsoever. Its sole effect is to States for the shipment of their property and the transporta legalize agreements between railroads which the Supreme Court tion of their persons, without any ameliorating or mitigating of the United States has already declared are in violation of the features, then I would have a further objection to it; but I antitrust law. It is so distinctively a long step backward in do not so construe it. The agreement prescribed here is a our regulation of corporations, and especially of railroad com traffic agreement specifying rates and charges. Of course it panies, that it ought to stop and shock any man who has been would be illogical and absurd to authorize the railway com hitherto in sympathy with the law or laws which Congress has panies to enter into an agreement specifying rates unless it was enacted. accompanied with a contract and stipulation to preserve those I want to be absolutely candid, however, with respect to this rates, to charge and collect those rates. I take it the Sen matter, and, while what I have said in respect to this section ator from Utah must concede the justice of that reasoning; is strictly accurate, it is nevertheless true that there is a suc and if the railways, in specifying their rates, can at the same ceeding section, to which I shall refer presently, which gives ti.me agree to preserve those rates, notwithstanding the desire to the commission authority to suspend for a period of sixty of any railway company to vary or change them, then I assume days any new rates filed by the railway companies with the that we can go one step further without difficulty, which is commission. · Therefore, when these rates, which I have been that the railway companies may delegate to some representative attempting to describe, are filed with the commission, the com- the power to change them. There can not be any fl.aw 1n that 3370 CONGRESSIONAL RECORD- SENATE. MARoH 18, process of reasoning, and my interpretation ot this.section innst, coiifidence· in the intelligence and patriotism of the members I think, in the end prevail. I hope that is the interpretation, of that committee. I read from the section in order to show because, if there could be no departure whatev~r from the the "connection between it and my amendment: agreement, it would be still more objectionable than though it Agreements between common carriers subject to this act specifying were accompanied with suitable provisions for changes in rates the classifications of freight and the rates, fares, and charges for as the circumstances of the country might require, · · · transportation of passengers and freight which they agree to esta.blillh shall not be unlawful under the act to re,,,"11.late commerce a.s amended, Mr. SUTHERLAND. Mr. President-- _ or under the act approved July 2, 1890, entitled ".An act to protect The PRESIDING OFFICER. Does the Senator from Iowa trade and commerce against unlawful restraints and monopolies," or yield to the Senator from Utah? o_therwi~e, if- · Mr. CUl\IMINS. I do. Now-comes my amendment- Mr. SUTHERLAND. ?!fay not the provision be 1nterpreted made in terin.s subject to the approval of the commission, and if also so as to mean that it refers to contracts or agreements· made any such agreement, together with all the rates, fares, charges, or classifications therein prescribed or therein referred to shall be ap specifying rates? Then, if any change is desired, another agree proved by the co.mmission before any such agreement, rates, fares, ment shall be made between the same parties and ·filoo. Not charges, or classifi?Rtions go into effect. that they may confer upon the board or upon the committee If I correctly understood the Senator from Rhode Island yes the power to make the agreement for them~ !>Ut they must .rtlake terday, he seemed to approve of some such change in this bill as it themselves by separate agreement filed ·as the-original'agree- I now suggest, and I pass the amendment to the Secretary to be ment was filed. • · · · printed and laid on the table, and during the progress of the bill Mr. CUMMINS. I can not conceive of such an interpreta I will offer it. · tion, although I can conceive of such a situation; that is, I can . The amendment is as follows : not believe that that is the correct interpretation of this sec Insert after the word " if," in line 17, page 13, the following: tion, although, as I have said before, it will be more objection " Made in terms -subject to the aJ?proval of the commission, and if able to me if it is to be so construed than it is now. also any such agreement, together with all the rates, fares, charge , or classifications therein prescribed or therein referred to, shall be ap But I recall the Senate to the picture that I have just painted proved by the commission before any such agreement, rates, fares, of a million or more rates filed with the Interstate Commerce charges, or classifications 90 into effect." Commission, all of which are to go into effect within the period Strike out the word "a,• in line 17, page 13, and insert the words "and a." named in the statute, with no other opportunity upon the part Strike out the word "is," in line 18, page 13, and insert ftle words of the commission to interfere with the agreement or change it "shall be." or approve it in any form whatsoever except to begin an in Mr. FLINT. Mr. President-- vestigation of the rates, a work which, if the commission could The PRESIDING OFFICER. Does the Senator from Iowa devote itself to without any interruption or any diversion on yield to the Senator from California? · account of its other duties, would require years to perform; and, Mr. CUMMINS. I yield. in the meantime, the American people must pay the rates that Mr. FLINT. I take it from the amendment the Senator lias are thus established in these agreements and that are pre offered that he is in favor of this provision with tlle amend scribed in these schedules. ment, and I desire to ask him this question: Re has stated that If you make these agreements subject to the approval of ti;ie the rates which would be filed would number into tlle millions, commission there will be few of them filed, because the rail in which I agree with him, and that it would be many years roads will know that in order to make them effective the com before agreements could be approved by the Interstate Com mission must in""9""estigate and pass upon the rates that are men merce Commission, in the event that they were all dnmped in tioned in them· but if you give the railroads free rein and give at one time, as they would be. I ask whether, in his opinion, it them this cha~ce to revise all the rates of the United States would not result that there would be no rates approved under without the interference of the antitrust law, and without the this provision? possibility of interference upon the part of the Interst.ate Com Mr. CUMMINS. Mr. President, I hope- merce Commi sion, then you may expect what I think all of Mr. FLINT. Let me finish. For the reason that t~e minute you will concede will happen, namely, after the destruction of a rate sheet is offered it will be followed, nine times out of ten, all competition, an immediate increase in the rates throughout by protests from the shippers; a hearing will take place, and the United States. I will not say that it was the purpose of the various rates and clas ifications and sheets offered will this section in the way' in which it is drawn. But it is the have to be revised. It would seem to me it would be simply argument of the railroad companies; that is what they have an endless task on the part of the commission to take the time been contending for for yea.rs. They want the menace of the anti to go through and approve the rate sheets. The statement trust law removed. They want the shadow of the penalties originally made by the Senator, that it would be five year:s be that are imposed by that act to pass away. They want to deny fore the commission could investigate the rates, would apply to the comts the jurisdiction to call them to account for these equally to the provision as he now offers it, and for the com conspiracies in restraint of trade, and they have accompli hed mi8sion to make an investigation after complaint made. in this section all that they have been contending for, praying Mr. CUMMINS. If, under the change I have suggested, tlie for, and fighting for since first Congress attempted to regulate railways were to do what I know they will do if the change is their affairs. not made, it would require quite the length of time stated by I thought when we closed this discussion yesterday after the Senator from California for the com.mission to investigate noon it was the consensus of opinion that this section was all of these rates. But I earnestly and fervently hope if this wrong, and that if we did not intend to emasculate ana_destroy amendment is made, so that we will be carrying into effect not the interstate-commerce law, as well as the antitrust law, it only the commands of justice but of our platform, that then must be changed. I recall the statement of the Senator from the railway companies will not enter into agreements with re Rhode Island [Mr. ALDRICH], who never enters the Chamber spect to any large proportion of their rates. I can conceive of until I speak his name, and therefore I shall give some atten special instances in which the railway companies might enter tion to him in order that I may give the Senate the benefit of into traffic agreements involving some rates, but those must be his presence. The Senator from Rhode Island said yesterday so few in number and so important in character that the com" that he was not compelled to vote for this bill as it came mission, within a reasonable time, could investigate and declare from the Attorney-General, and that if the interpretation I whether they were just or unjust. have put upon this section is the right interpretaion, and· if :Mr. FLINT. As I understand the Senator-- the consequences I have attempted to depict will certainly fol The PRESIDING OFFICER. Does the Senator from Iowa low its adoption, then he favors such an amendment to it as yield to the Senator from California? would require the approval of the commission before these M:r. CUMMINS. Certainly. agreements become effective. Do I correctly quote the state Mr FLINT. Under the provision as written in the bi11, he ment of the Senator from Rhode Island? His attitude here is of opinion that all the rate heets would be entered into one yesterday afternoon was very different from his attitude at a agreement at one time practically, and that under the amend former time, to which I may refer when he is here. ment as he has offered it the.re would be comparatively few The amendment I wanted to offer before the· committee, and agreements and rates made by the railroad companies under which I was precluded from offering before the committee, the the law. · · · amendment which will bring this section into · harmony witb - Mr. · CUM~flNS. I so believe, Mr:. President. Possibly the the Republican platform, and which will m.ake · it · consistent · Senator from. California was not here when I stated wbat -I with the common welfare, the common interest, and the plain thought would happen if this section became a part of the law. dictates of common justice, ·I intend to offer now. ·: I must We have three great zones. · belie>e that if opportunity had been given to present this mat Mr. FLINT. Yes. ter to the committee much of the discussion we have ··had up Mr. CUMMINS. If you heard that part of it, then I need not to this time would never have taken .place. I have that much repeat what I said. 1910. CONGRESSIONAL-. ~ECORD-SEN.A.TE. 3371 ·_ I have no doubt whatsoever that within a very short time ..Ur. CUMMINS. I do. traffic associations representing these three zones into which 1\f r. NELSON. I am sorry the Sena tor from Iowa does not the country is naturally divided would file their tariff traffic see that there is a deep and impassable gulf between him and agreements and specify in them all the rates which the railway the Senator from Rhode Island, and that is this: The Senator companies desire to charge for the transportation of freight from Rhode Island insists that what the Senator from Iowa and passengers. contends for is now in the bill. Mr. FLINT. That part of it was very clear to me, but the Mr. CUMMINS. - Precisely; I understand that. part I wanted the Senator to dwell on to some extent, if he Mr. NELSON. And the Senator from Iowa maintains it is would, is the question just how extensive, in his opinion, would not. So there is a big debatable question on which we ought to these traffic agreements be under the amendment he has offered. get instruction. In his opinion, would it be possible to have very many traffic Mr. CUMMINS. I understand perfectly that there is a gulf agreements under the bill as proposed to be amended? · fixed between the Senator from Rhode Island and myself which Mr. CUMMINS. Mr. President, I do not think it would be may ·never be bridged. I hope it will be. When it is I am sure possible to have many. It would be entirely possible to have he will cross it to my side, for. I have no expectation of ever traffic agreements covering the more important competitive crossing it to his. But we have made a distinct advance when points. I do not think there ought to be very many, and cer the Senator from Rhode Island admits that these agreements, _ tainly there ought to be none until approved by the commission. with the rates specified in them, ought to be approved by the I assume that the railways in these various territories will do commission before they go into effect. just what they have wanted to do heretofore, just what they did Mr. ALDRICH. Oh, no. do years ago. Their associations are already waiting to be Mr. CUMMINS. I hope the Senator from Rhode Island will called into action for the purpose of making just such agree not interrupt me until I have finished my answer to the Senator ments as are provided for in this bill. from Minnesota. - I am very willing to submit to the Senate I notice now that the Senator from Rhode Island [Mr. .ALD the question as to the construction of this section, what it actu RICH] is present. ally means, because there is not a Senator here who, after read Mr. CRAWFORD. Mr. President-- ing it, will have any doubt whatsoever upon that point, no mat The PRESIDING OFFICER. Does the Senator from Iowa ter what his opinion may be with regard to the policy of sub yield to the Senator from South Dakota? mitting such agreements for approval before they go into effect. Mr. CUMMINS. If you will just wait a minute, until I fin I now yield to the Senator from Rhode Island. ish my suggestion to the Senator from Rhode Island. I took l\1r. ALDRICH. I felt called upon yesterday to make a pro the liberty a few minutes ago of saying that I understood the test, as mild as I could make it, against the Senator from Texas Senator from Rhode Island to declare yesterday that if the and the Senator from Iowa agreeing as to what my views were consti·uction of section 7 was anything like the construction on this bill. that I have been putting upon it, he would willingly concur, in Mr. CUMMINS. The Senator from Texas is not here, and is order to put the matter beyond doubt, in an amendment requir not involved in the present controversy. ing that all such agreements should be approved by the com l\Ir. ALDRICH. No; he is not. But the same thing occurred mission before they became effective. I have offered an amend yesterday. ment, the same amendment I sought to offer before the com Mr. BAILEY entered the Chamber. mittee, which does put beyond question that important inquiry, Mr. ALDRICH. The Senat-or from Texas is now in the and I would be very glad to know the views of the Senator Chamber. But I should like to have the opportunity to express_ from Rhode Island, so that if he concurs with me in that re my own views in my own way. I have done that. I did not spect, I can pass on without any further argument to another gi\e any such construction to the language which I used or in section of this bill. · tended to use as that given by the Senator from Iowa. Mr. ALDRICH rose. Mr. CUMMINS. Let me ask again. I ask the Senator from The PRESIDING OFFICER. Does the Senator from Iowa Rhode Island whether he did not say and whether he does not yield to the Senator fro~ Rhode Island? mean that these agreements must be approved by the commis Mr. CUMMINS. I do. sion before they go into effect? Mr. ALDRICH. I said yesterday and I repeat that the Mr. ALDRICH. I did not say that or intimate that. rates and classifications fixed in these agreements should be Mr. CUMMINS. What does the Senator from Rhode Island subject to the approval and control of the Interstate Com mean with regard to that point? , merce Commission. I think they clearly are so by the terms l\Ir. ALDRICH. I said and I repeat, if it is any satisfaction of the section as it stands. to the Senator from Iowa-- There is one trouble with the suggested amendment of the Mr. CUMMINS. It is a great satisfaction. Senator from Iowa. If the commission in advance make an Mr. ALDRICH. That these agreements ought to be always approval, can they afterwards have any· jurisdiction over those under the approval and control of the Interstate Commerce rates? Commission, and that in my opinion the language in the sec Mr. CUl\11\HNS. The act specifically provides that the com tion as used clearly puts them under that control and subject mission may reconsider its decisions and reform at any time to that approval. the rates which it has approved. l\Ir. CUMMINS. I very much-- Mr. ALDRICH. The rates fixed by the agreements certainly Mr. ALDRICH. I further said that if it did not, I was will ought always to be under the control of the Interstate Com ing that an amendment should be made to that effect. That is merce Commission. all I said. Mr. CUMMINS. I agree with the Senator from Rhode Island Mr. CUMMINS. I fear that a night's reflection has wrought about that. a great change itl the views of the Senator from Rhode Island. Mr. ALDRICH. I think they are by the terms of the act as I will leave the Senate, however, to determine at the proper it stands. If there is any reasonable question about it, I want time whether I have correctly understood his remarks upon them to be made, so far as I am personally concerned, so that this subject yesterday and to-day. they will be under the appro\al and control of the Interstate I now yield to the Senator from South Dakota. Commerce Commission. 1\1r. ALDRICH. I think the RECORD will disclose that I Mr. CU:l\IJ\IINS. It gives me so much assurance with regard made the same statement yesterday in almost precisely the to this matter, it is so gratifying to me that the Senator who, same language. without disparaging any other Senator, I believe knows more The PRESIDING OFFICER. The Senator from Iowa yields about this bill than any other man in the Senate except myself to the Senator from South Dakota. · [laughter], has assented to the amendment, or the substance of · Mr. CRAWFORD. The Senator from California called at the amendment, which I have offered-- tention to the proposed amendment of the Senator and to the Mr. ALDRICH. No: difficulty that would attach under it on the part of the Inter l\Ir. CUMMINS. That I will not further detain the Senate state Commerce Commission to pass upon and approve a rate by presenting other suggestions that I may have. sheet for the entire country. Mr. ALDRICH. I do not understand the statement I made The question I want to ask is whether or not, under the yesterday or the statement I make now as assenting to the amendment proposed by the Senator from Iowa, there would be amendment which the Senator has offered, in the form in which any limit as to the time which may be taken by the commission it is offered. and by the railways to make up a proposed rate sheet for the Mr. CUMMINS. I will allow the Senator--- · entire country and have it approved? · Mr. NELSON. Mr. President-- Mr. CUMMINS. None whatever. The PRESIDING OFFICER. Does the Senator from Iowa Mr. CRAWFORD. There would be nothing to prevent them yleld to the Senator from Minnesota? from doing that if it did take five years? · 3372 CONGRESSIONAL RECORD-SENATE. 1\fARCH 18, Mr. Cill!l\IINS. No. ~ough route in existence, whether established by the commis llr. CRAWFORD. That was the point. s~on or whether ~stablished by :llie railroads. Our experience Mr. CUM~llN"S. It is my hope that it will .eventually be smce 1906 has shown, and shows conclusively, that there is done; that the .railways will file their rates with the Inter great advantage in more than one through route. Therefore state Commerce Commission under such an agreement, and that in .rewriting section 15 of the bill the .additional power is con when the commission has investigated those rates and made ferred upon the commission to establish such through 1-outes such changes in them as the interests "Of the country i·equire as in its judgment the business of the country demands. they will become the rates ot the United States upon which ?-'hat wa_s the bill as tt. was reported by the supervisory com we can depend and rely. In.lttee which assembled m New York in August of la.st year. I now pass from this section of the bill. I think I have laid In that draft, and I have it before me, absolute authority was 1t before the Senate with .all the fullness which my capacity given to the commission to establish through routes, and there enables me to do. I now pass to section 8 ot the bill, for I was no limitation whatsoever. Between the time that this bill realize that very few of the Senators, with the multitude of came under the e-0nsideration Qf the President and the Attor other business engagements, have had a chance to become ney-General on the 10th -0f rovember and the time at which it familiar with this measure. came into the .Senate on the 11th of .January of the present Section 8 of the bill, I am glad to say, is exactly right. This year, this provision was very markedly changed. ls one of the things for which the people of the country have The bill as it was introduced here provided that the com been asking for years, and I give this section of the bill the mission should not have the power to establish a through route same earnest approval as to the former sections of the bill I between a steam railroad and an electric railroad, one of th~ have given my censure and criticism. The rate sheets of the most odious exceptions that can possibly be imagined, because United States are exceedingly complicated affairs, and there are the growth of transportation facilities in this country in the very few people who are able to take them and determine future is to be, as many believe, largely in the de\'elopment of what is the rate from one point to another. Railway com electric power. The result would .have been to give the steam panies, either intentionally or unintentionally, through their railroads the power to crush the electric railroads and to buy agents freCJuently misstate rates, so that proposed shippers are them at their own price, a result that was still further effretu misled, to their great injury, in entering upon business engage ated by a subsequent provision of the bill. to which I shall call ments and making shipments upon the faith of rates that are your attention, which excepted electric 1·ailroads n·om the pro stated to them by the agents of the railway c-0mpanies. hibition against a c-0mbination, merger, or consolidation of rail It is impossible to impose upon the railway companies any way properties. liability whatsoever in favor of the shippers for those mis The electric roads heard of this provision when it was intro· takes, whether in good faith or otherwis0y because the moment duced. by the Senator from West Virginia, and they made so you give to a shipper the right to recover from a railway com much noise and presented so many just complaints that those who pany damages on account of the misstatement of a rate, that were in charge of the bill found it impossible to withstand their moment you have opened the door to general discrimination attack upon it. Therefore, while the bill was in the committee and rebate, inasmuch as the supposed liability will be at once it was changed, n-0t by the committee, but by the Attorney: ta.ken advantage of by the railway companies to give to their General; :and n-0w the bill does permit the commission to estab favored shippers such di'SCriminations as they might be in lish a through route as between an electric freight road or an clined to give. electric road that is engaged in ~ business of transporting Therefore the only way to proceed is to impose such a pen freight and the ordinary steam commercial railway. alty upon the railways for a misstatement of a rate as will I want to applaud that change. I think it was one of the induce the utmost caution. For that reason this .section pro most signal instances I have ever known of .an officer yielding vides that for every misstatement of a rate or a. refusal to to a just and imperious demand upon the part of those who state a rate, which inflicts injury upon a shipper, the railway were interested in the subject Again, although this draft which company shall incur a penalty of $250, to be recovered by I hold in my hand contained no such provision, the bill that suit of the United States and paid into the Treasury of the was introduced by the Senator from West Virginia contained a United States. I believe it to be not only a wise amendment provision that in establishing any through route the commis to our present law, but I believe it to be imperatively de sion could n{)t compel any railroad to become a part of a through manded. for the welfare of the shipper. route unless the through route embodied substantially the en I pass to section 9. Section 9 of the bill rewrites seetion tire line of the railway, a provision that simply robbed the 15 of the present interstate-commerce law. The Senators who measure of nearly all its valu~ because there are so many were here in 1906 will recall that section 15 of tbe old law was instances in which it is necessary that a through route shall be rewritten at that time, and the present section is a substitute established. over a railway without including its entire length for the section adopted in 1906. Yon will remember that this that the commonest and most casual investigation of the subject is the section which confers upon the Interstate Commerce must nec.essarily lead to the condemnation of .any such propo Commission-I am now speaking of the present law-the power sition. to prescribe a rate for the future. The original law of 1887, Again the voice of the people was heard distinctly enough, which was intended to give the commission that power and and I think I could locate the voice if I were permitted to do which it was supposed for a series of years did give the com so. When it is heard from its seat it is not far from me as I mission that power, was found to be faulty in 1897, and from stand here. I think: you will all recognize that the interests, 1897 to 1906 it was understood by all the people of the country especially -0f the Pacific coast,, rose up in rebellion against a that the commission had no power to prescribe a rate. Section proposal that no through route could be established from Cali 15 of the act of 1906 was enacted to giye the commission the fornia to the eastern markets unless it embraced the whole line power, and it did give the power effectively when invoked by a of any railway that became a part of it. complaint filed with the commission by some shipper or some . I applaud that change. I think it was most wise. And with representative of a shipping interest. What were th~ defects that change, so far as this pa.rt.of the section is concerned, I of that section? It was discovered that it was necessary that have no amendment to offer and I have nothing but praise to the commission, in order to adm1nister justice, should proceed bestow. upon its own motion as well as upon a complaint, and there But now we come to a new part of the new section 15~ which, fore 1n rewriting this section in the present bill it is specifically I think, will interest the Senate. I mean section 15 of the declared that the commission shall have the authority to pro old bill. It is section 9 of the present blll. ceed against any rate or rates that it may regard as unfair or I omitted to say that there was one change in the part I unreasonable, upon its own motion, and do whatever justice have been describing that I will ask the Senate at some future requires with respect to such rates. time to consider, but I do not intend to ex.a.mine its merits now. I pause hern to say that in this enlargement of the power of I intend, when the hour comes for considering amendments, to the Interstate Commerce Commission Tam in hearty sympathy. ask the Senate to broaden the power of the commission, so that I think it adds to the law one of the most -raluable provisions in its investigation of rates it may determine and fix a relation which Congress can possibly add. Further, it adds to the com between rates, as well as to prescribe a maximum rate. mission. the power to deal with classifications, which the com I pass to the Secretary my amendment in that regard and mission has not at the present tim0y and that is a most helpful ask that it be printed and lie on the table, to be hereafter .addition to the law. I not only have no objection to it, but I offered. very freely give it my most hearty support. The PRESIDING OFFICER. The amendment will lie on It does one more thing. It enlarges the power of the com the table and be printed. mission with regard to the establishment of through routes. The amendment is as follows : As 1.he law now is, as Senators know, the commission has not the Insert, after the word " charged," Jn line 5, page 17 the words power to establish a through route if there be one satisfactory " or to determine and prescribe what will be the just .and reasonable 1910. CONGRESSIONAL RECORD-SENATE. 3373 relation between such rAtes or charg-es to be thereafter observed;'' United States, made at Des Moines, Iowa, -Yondny, Septemb-er also insert, after the word "prescribed," 1n line 14, page 17, the words .. and 11reserve the -relation so 'fixed." • 20, 1909. He said: Under the tnterstate-eoinmerce law a new rate classification is to be Mr. CUMl\fINS. ·r now reach the second paragraph of sec- filed with the commission. It .is proposed now to authorize the com tion 9, which becomes a part of section 15 if it shall be adopted, mission to postpone the 'date that such new -rate classlficutlon is to take • asmuch as thi·s section h"S been the subJ'ect of 1' much effect, --provided that lthin thirty days of the date of the order a com and lll ,.,._ "" 0 platnt be:!.filed that such "'Tll.te or classification is unreasonable or unju~t, discussion, not only in Washington, but -elsewhere, I wilr .take or, provided second, that the commission itself shall institute an in the privilege of reading it. I am now reading .from page 18 of quiry Into the -reasonableness or justice of such rate or classification. Thi8 introduces a. somewhat new element into the net by placing the the bill under consideration. railroad company in the situation, when it proposes to make a change in, First, let me say that I suppose there has been nothing dis- the rate which is an advance, that it should -be prepared to show to the ,,. •t·cany, no complam·t urged more emphatically commission affi.rmatlvelf that the change to .the new rate is justified. Cussed more C.... 1 1 I -am i:ru:llned to think that this is a :fa.tr eha.nge ln the provtsiOU'S of since the passage of the Hepburn la:w, than the appeal OJ} the the law. It gives to the publi-0 'the same right to ha.ve cliangeB 1t·Muh part ot the shippers that no increase in rates shall go Into effect atrect them injuriously inveatigatea before they go ·nto etreot as it .._._t • I kn d-0es changes of rates by th Mr. CUMMINS. I may be tempted before I am through to place to a proposition that keeps the promise to the ear but disclose what little I had to do with it, but I think the Sena will break it w the hope, because the commission can not inves tor from Rhode Island [Mr. ALDRICH] can well assume that I tigate any great proportion of the changes which the railway: did not propose the change which is manifest between the origi companies can make . and will make within a period of sixty nal draft and the present bill. The President had declared the days. pi;oposition so clearly and so satis1;actorily to the people of the Mr. ALDRICH. Mr. President-- country, that I would not have had the courage,,. even had I The PRESIDING OFFICER. Does the Senator from Iowa had the inclination, to suggest the change that was afterwards yield to the Senator from Rhode Island? made. Mr. CUMMINS. I do. Mr. ALDRICH. Mr. President-- Mr. ALDRICH. I suppose the Senator from Iowa will not The PRESIDING OFFICER. Does the Senator from Iowa undertake to say that what be calls the original draft in this yield to the Senator from Rhode Island? case ~ver met with the full approval of the President? Mr. CUMMINS. I do. Mr. CUMMINS. Mr. President, I have just read-which the Mr. ALDRICH. Perhaps the Senator from Iowa will be kind Senator from Rhode Island evidently did not hear-the most ex enough to inform the Senate why he picks out one or two utter plicit statement from the President of the United States that ances of the President upon various things connected with this could be put into the English language, which declared that bill and considers them of high authority here, but rejects the these rates ought not to go into effect until they had been in main scheme of the bill, which embodies the ideas of the Presi vestigated and approved by the commission. dent generally. Mr. ALDRICH. But the Senator from Iowa read from a Mr. CUMMINS. On the contrary, Mr. President, if the Sena statement made in Des Moines. tor from Rhode Island had been here listening to me, he would Mr. CUMMINS. I did. have heard me express in the most positive.and emphatic man Mr. ALDRICH. After this first draft was submitted to the ner, not only my approval, but my ,praise of certain portions President, the President and the Attorney-General, as I under of this bill. I am here with the hope that we may preserve stand it-for as long as we are going into the history of this what is good in the bill and reject what is bad. case we might as well be explicit-heard a number of gentle Mr. BAILEY. Vain hope! [Laughter.] men representing all phases of this subject, of whom the Sen Mr. CUMMINS. No; I do not think it is a vain hope. I ator from Iowa was one, and the President did not approve have gone far already toward convincing the Sena tor from this legislation or the form of the legislation until a long time Rhode Island; and when one can convince the Senator from subsequent to that period. Rhode Island, there is hope for anybody else on earth. · [La ugh Mr. CUMMINS. I think the Senator from Rhode Island has ter.] in every respect except one stated it accurately. The President, Mr. ALDRICH. Mr. President, I have listened whenever I as I understand, was on the 10th of November in favor of that have been able to, and I have read the Senator's statements proposition. After hearing from those who were against that from time to time, and, so far as I can observe, the enacting proposition, it is fair to assume that he now sanctions the pro clause is the only part of the bill which meets with the approval vision which is in this bill·; but I do not want the Senator of the Senator from Iowa. from Rhode Island to mention again, unless he wants a full Mr. CUMMINS. That simply illustrates what I said a mo explanation from me, any conference had with me upon this ment ago, that the Senator has either had cotton in his ears bill. I do not want to enter upon it. I think the Senator from while I have been talking here, or he was not in the Cham West Virginia [Mr. ELKINS] can recall it, and I believe I ber, because I said in the most unequivocal way, and I repeat, would be willing to rely upon the fidelity of his memory to that there are many things in this bill that are good. I have recount it. All of it I remember is that the Senator from West pointed out several of them, and I shall point out others before Virginia wanted to know of me if he could compel trunk lines I am through; but because :::: find some things that are good in to furnish coal roads with equipment. [Laughter.] We had a bill it does not incline me to accept those things that are bad some discussion upon that subject, and' that is about all that I in the same bill. remember of that conference. Mr. BAILEY. Mr. President-- Mr. ELKINS. I will say to the Senator-·- . The PRESIDING OFFICER. Does the Senator from Iowa The PRESIDING OFFICER. The Senate will be in order yield to the Senator from Texas? Senators desiring to interrupt must address the Chair. • Mr. CUMMINS. I do. · Mr. BAILEY. Mr. President, as one seeking light-- Mr. BAILEY. Simply, as a friend of the court, I want to The PRESIDING OFF~CER. The Senate will please be in warn the Senator from Iowa against laying to his soul the order. Senators desiring to interrupt will please address the flattering tmction that he bas persuaded or convinced the Sen Chair. ator from Rhode Island of anything. [Laughter.] Mr. BAILEY. I did address the Chair, if the Chair please. '"' If the Senator from Iowa doubts the correctness of my judg The PRESIDING OFFICER. The Chair did not recognize ment, I will ask him to wait until the roll is called and he the Senator. · will find out whether the Senator from Rhode Island agrees Mr. BAILEY. I can address the Chair, even if I am not for with him or not. tunate enough to obtain the Chair's recognition, Mr. President. Mr. CUMMil~S. Mr. President, I have too high a regard for The PRESIDING OFFICER. Does the Senator from IOwa the intellectual keenness of the Senator from Texas to follow yield to the Senator from Texas? · the practice of an ancient artist and label my pictures or l\fr. CUMMINS. With pleasure. specify when I -attempt to perpetrate a joke. [Laughter.] Mr. BAILEY. Mr. President, I merely want to say that, at This was the original proposition : one seeking light on this subject, I should be delighted to hear [Extract from document prepared "For the confidential use of the about this conference that has occurred somewhere, I take it at · President," pages 21 and 22.] the White House. I think it would enable us to make the Whenever there shall be filed with the commission any schedule distinction between "before and after taking." [Laughter.] stating a new individual or joint rate, fare, or charge, or any new individual or joint classification, or any new individual or joint regu The President's opinions, if we are to believe what we have lation or practice affecting any rate, fare, or charge, the commission heard-and I do believe it-have undergone some change. I shall have, and it is hereby given, authority, either upon complaint understand there was a conference somewhere and at some time. or upon its own initiative without complaint, to suspend the operation of such schedule and defer the use of any such rate, fare, charge, Of course I understand that conference does not concern the classiiication, regulation, or practice pending investigation of the legal Senators on this side of the Chamber, but, being referred to in ity and propriety thereof ; and after full hearing the commission may the open Chamber, it would instruct us to hear about that con make such order with reference. to said proposed rate, fare, charge, classification, regulation, or practice as would be proper if the rate. ference, and, having a curious mind, I myself would like to fare, charge, classiiication, regulation, or practice bad actually gone know who was there. Of course I know that the Senator from into etfect. · West Virginia [Mr. ELKINS] was there looking after the special Now, will you tell me what is wrong with that proposition? interests of West Virginia in the distribution of coal cars The people generally insisted upon an absolute prohibition [laughter]-a very proper thing for him to do-and, of course, against any rate going into effect without an examination upon I know that the Senator from Iowa [Mr. CUMMINS] was there. the part of the Interstate Commerce Commission, but they be I am not so sure whether or not the Senator from Rhode Island came finally satisfied with the suggestion that if the commis [Mr. .ALDRICH] was there. sion were given the power to suspend any new rate so filed Mr. ALDRICH. I was not there and was not invited. until an investigation could be had and discovery made as to Mr. CUMMINS. Not at that time. [Laughter.] its justice or fairness, that might accomplish the purpose. We Mr. ALDRICH. Nor at any other time with the Senator from have not only been refused the original demand, but now the Iowa. proposition, which illustrates the extreme limit to which we Mr. CUMMINS. Mr. President, even under the rather tempt could go and still preserve the right of the shipper, ~s given ing suggestion of the Senator from Texas, I must be silent 1910. CONGRESSIONAL RECORD-SENATE. 3375: with regard to that conference. I never recall painful memories does not apply with equal force to every other kind of com UU: can avoid it. mon carrier. There are steamboat lines1 steamship lines, water .Mr. ELKINS. Mr. President-- lines of all kinds; there are express companies, and other The PRESIDING OFFICER. Does the Senator from Iowa organizations, which fall within the law concerning which it yield to the Senator from West Virginia? is just as necessary to protect the people against combinations 1\Ir. CU.:MMINS. If the Senator from West Virginia wants to as it is to protect them against the acti_on of raih-oad com~ ·verify that old adage that run&-well, be knows how it runs panies. [laughterJ-1: will yield. · Ill so far as this section is concerned, it would be entirely Mr. ELKllrs. All I have to say about the conference is that lawful for a railroad company to purchase and combine with we can not allow even the Senator from Texas to get 'in the itself all the steamship lines, either interior or exterior to the Republican party by the back door · in the way he suggests. United States. We have been waiting with some solicitude for [Laughter.] the completion of the Panama Canal, hoping that when that Mr. BAILEY. If I were going into the Republican party, I great work shall have been finished there will be the oppor, would hunt the back door. [Laughter.] tunity for competition between the eastern and western bor Ur. CUMMINS. I now pass that section. I had inteil.ded· to ders of our country through the medium of steamship lines; ofter an amendment to it, but I can not turn to that portion of but what will be the result if that eompetition is permitted to the report which contains it, and therefore I will return to the be destroyed by a combination between such water lines and the subject at some future time, simply to offer an amendment transcontinental railway lines? We are only compelled to look which will strike out the limitation of sixty days and restore at the present situation in order to know that the condition I the bill to the form in which I believe it ought to be, giving. have just mentioned is not only possible but probable. tlie commission the authority to suspend the rates and to keep When we a.re attempting to preserve competitiQn among rail them in suspension nntil they a.re examined and found to be ways or among common carriers, it is of the highest necessity jnst, fair, and reasonable. _ th.at in any prohibition against me1·ger or the acquisition on The fifth paragraph of this section--and now I am sure the the pa.rt of one common carrier of the lines of another the pro Senator from Rhode Island will hear what I have to say~the hibition shall extend to water transportation as well as to land last paragraph of this section. gives. to the ship~er. the right to transportation. route his freight if there are two ot. more Jomt or threugh Now., I do not forget that there will still rest upon that sub routes open between the points of carriage. This is also a ject the antitrust law. I am speaking only of the prohibition privilege which the shippers of the. country h3;ve e3:rne~tly aske_d of this particular section. of Congress more than once. It lS gran_te wished to develop the Senator's ideas with reference to the cor rect competition" and "direct competition," there would not rect method of facilitating the combination of railways as a be over two or three railroads in the United States that would part of the economic development of the transportation of the be prohibited from acquiring· stock under this law. The.testi country. mony of Mr. Walker, I think, reveals very thoroughly the Mr. CUMMINS. Mr. President, I did not intend at just this difference between "indirectly" and "directly competitive moment to express my views upon that broad and comprehen roads," and it would leave only two or three at most, according sive subject, but I am quite willing to turn aside for a moment to his idea, that would come within the law. and ·do so. I have no objection to the consolidation of lines Mr. CUMMINS. Mr. President, I am very much obliged to which form a continuous route of transportation. They are not the Senator from Idaho. I was about to trace the development competing lines in any sense. I have no objection to the con of this peculiar idea from the beginning of this proposed legis solidation of lines of railway that will extend one system from lation to the present time, and in the course of that develop New York to San Francisco with continuous facilities for ship ment the suggestions of Mr. Walker play an important part. ment. I have the greatest objection, however, to the consolida I do not know what "directly competitive" means. I know tion of competing lines of railway, or, as we ordinarily express what Mr. Walker, the general counsel for the Chicago, Rock it and as the States have expressed it in their legislation," par Island and Pacific Railway thought they meant, but they are allel and competing lines of railway." We are dealing in this new words, so far as the laws of the country are concerned, section, not with the consolidations which extend the lines of and we are entering upon a somewhat uncertain enterprise, I railroads, but we are dealing with consolidations which merge think, when we employ them. competing lines of road, and there is an attempted prohibition Now, will the Senate just follow me a moment until we see here against the acquisition by one railroad of another, which how these words came into the bill as they are now seen. The is, as it is said in the proposed law, directly competitive. original draft, to which I referred yesterday, dealt with this I was remarking that in the prohibition, for some reason un question in quite a different way, and I intend to read again known to me, the electric railways are excluded; so that, so from that draft, in order that the Senate may know how the far as this bill is concerned, I can organize an electric railway matter impressed the men as they originally dealt with it. 100 miles in length or 10 miles in length, and with that cor That draft reads: poration buy all the railroads in · the United States whether No corporation or joint-stock company or association which is a they are parallel, competing, or otherwise. My suggestion, of common carrier subject to the act to regulate commerce, approved Feb course, is that this prohibition shall ex;tend to all common ruary 4, 1887, as amended, shall hereafter acquire, directly or indi rectly, any interest of whatsoever kind in any capital stock of any cor carriers, in order that we may accomplish the purpose that we poration or joint-stock company or association which competes or is have in view. naturally competitive anywhere in any way with such first-named cor The next suggestion I have to make with regard to this poration or joint-stock company or association in any part of its busi section is this: The prohibition is against one railroad com ness to which said act to regulate commerce, a.s amended, applies. pany acquiring- Mr. OLAY. Mr. President, from what does the Senator now Directly or indirectlyi any interest of whatsoever kind in the capital read? Is that the original act? stock or purchase or ease the railroad, of any railroad corporation Mr. OUl\11\fINS. I read from the draft of the bill prepared ownillg or operating a line of railroad which is directly and substan by these eminent gentlemen, who met in New York in August of tially competitive with that of such first-named corporation- last year, who met there to put the views of the President on . And so forth. this subject in the form of a bill, and who afterwards reported I should like for some Senator, before we have finished this to the President and the Attorney-General the bill that I have debate, to give us some information with regard to the meaning now in my hand and from which I have just read. Remember of the words " directly competitive." In so far as my observa what that is. That meant something. There is no difficulty tion has gone, this is the first time that the word "direct" has about understanding what combinations and mergers were for ever been applied to qualify the word " competition " in any bidden by that language. law which is designed to preserve competition. I now turn to the original bill as introduced by the Senator The chairman of the Interstate · Commerce Committee [1\Ir. from West Vh'ginia [Mr. ELKINS]. I am glad to do this, inas ELKINS] is now here, and therefore I repeat what I have just much as the Senator from West Virginia has in substance dis said. The acquisition by one railroad company of another is avowed the bill as it now is. I want to show that the bill as he prohibited in this section only when the latter is directly com introduced it, and for which he became responsible, is entirely, petitive with the former. What · does the word "directly" unlike the one we are now considering. mean in that connection? What is " direct competition " as Mr. ELKINS. Mr. President-- distinguished from " indh'ect competition? " I hope the Senator The PRESIDING OFFICER. Does the Senator from Iowa from West Vh'ginia will, before this debate is closed, give us yield to the Senator from West Virginia? some instances that would be controlled by· this provision that Mr. CUMMINS. I do. are not now controlled by the antitrust law. . Mr. ELKINS. I should like to have the Senator now explain . Is the Baltimore and Ohio Railrmu]. in direct competition what he means by my disavowing the bill. with the Pennsylvania Central Railroad? Is a railroad · run Mr. CUMMINS. That is merely a conclusion from what the ning from New York to St. Louis in direct competition with a Senator bas said. railroad running from New York to Chicago? Is a railroad Mr. ELKINS. When and where? running from Chicago to Omaha in direct competition with a Mr. CUMMINS. Many times, and always in the Senate. railroad running from Chicago to Kansas City? Are you in Mr. ELKINS. Oh, no. I have not said anything-I think the tending to confine the operation of this section to those rail Senator's memory is at fault-that would indicate that I dis roads which begin at a common point and which end at a avowed this bill. If I had, I should not have introduced it, I common point? I await with a good deal of interest and a should not have reported it, and I would not stand here and de good deal of impatience, too, some information upon that sub fend it. ject, and I hope that the defender of this section, if it has a Mr. CUMMINS. I think my conclusion will have to stand defender-it has not transpired yet that it has-but if it has I until the Senator from West Virginia says something for the want particularly to know what the words "directly com bill. petitive" mean in drawing into their operation any instances Mr. ELKINS. Mr. President, I hope the Senator from Iowa that are not already controlled by the interstate-commerce law. will allow me to interrupt him further. We are proceeding upon the hypothesis that we have the anti The PRESIDING OFFICER. Does the Senator from Iowa trust law which prohibits or makes unlawful contracts, com yield to the Senator from West Virginia? binations, and conspiracies in restraint of trade. We are try Mr. CUMMINS. I do. ing to add something to that prohibition in this law. At lea.st Mr. ELKINS. Mr. President, in the pro0 Tess of this debate it has been so declared. Now, when you qualify the word I propose to show what I think of this bill and to defend its "competition," as it is qualified here, tell me what instance provisions. That is my purpose before we get through with the you will be able to find that will be forbidden in this section debate. I thought it was courteous and polite to the Senator that is not already forbidden by the antitrust law? from Iowa to have him speak first in opposition to the bill; but Mr. BORAH. 1\Ir. President-- there is one thing I was glad to hear the Senator say yesterday, The PRESIDING OFFICER. Does the Senator from Iowa and that was that there was a great deal of good in the bill, to yield to the Senator from Idaho? which he heartily subscribed and which he pointed out. We Mr. CUMMINS. I do. put in one section that he helped to frame, and I think he him l\fr. BORAH. Mr. President, I think that a close analysis of self controlled it. I am not going to disavow anything that the the testimony of l\Ir. Walker, I think it was, who appeared Senator helped to make and of which he is father. before the Interstate Commerce Committee, will disclose that, Mr. CUMMINS. Mr. President, I feel very grateful to the if Mr. Walker was correct in what he conceived to be "indi- Senator from West Vh'ginia for permitting me to begin this de- : .. - 1910. CONGRESSIONAL RECORD-SENATE. 3377 bate; but, nevertheless, he will remember that I urged upon him remember that I am not now criticising the conduct of the with all the power I had and all the earnestness I could com Interstate Commerce Committee or the history of this bill. I mand that he open this debate himself, so that we might know am opposed to these words, and I use the history simply for what was to be said for the bill before we listened to that which the purpose of sliowing that they have been adopted in order is to be said against it. to meet the objections of the railroad companies who desire .I recall to the Senate again the language of the original the opportunity to ··combine and consolidate and merge to the draft: full extent that they now have _:the opportunity of. doing under Which competes or ls naturally competitive anywhere in ·any ·way the antitrust law. It seems to me that when I show these with such first-named corporation- . , changes from time _to tip:le, I at least furnish a foundation And M forth. for the demand that some reason be given for inserting them Now, mark the bill as it came into the Senate on that point: into the bill. I desire, in ord~r to show that there is no real virtue in this Shall hereafter acquire, directly or l~dire~tly, any interest of whatso ever kind in the capital stock, or purchase or lease the railroad, of any prohibition; to read· a paragraph from the Northern Securities railroad corporation which competes with such first~named corporation. case, Senators will remember that this case arose first through the purchase on the part of the Northern Pacific and the Great There is some -change, but I assume only in emphasis. The Northern ot the· Chicago, Burlington and Quincy Railroad, and language is still broad and sweeping and comprehensive. The then by the ·combination of the -Northern Pacific and the Great prohibition is against the acquisition of any railroad which Northern in the Northern . Securities Compa_ny. The legality competes' with the " first-named railroad." There was omitted of that merger was questioned in what is probably . the most between the time this draft was prepared and the time the Sen famous case that has arisen under tl}.e antitrust law. I shall ator from West Virginia introduced the bill into the Senate the read but a sing~e paragraph of it. It is found in One hundred words "naturally competitile" and the. wo~ds . " any-Where in and ninety-third United States Reports, on page 331: any way." Evidently- it was .thought that entirely too -much That every combination or conspiracy which would extinguish compe stress and emphasis might be put upon those words; and there tition between otherwise competing railroads engaged in interstate trade fore they were omitted. Nevertheless, I would not have seri or commerce and which would in that way restrain such trade or com ously disagreed with the Senator from West Virginia if the merce is made illegal by the act. words that were originally used were ·still in the bill; but un I should like somebody to tell me-and I hope the Senator fortunately we now have the prohibition against acquiring- from West Virginia will do it, and I ask the question in all good faith-what case has he in mind that will be covered by dlrectly or indirectly, any interest of whatsoever kind in the capital stock, or purchase or lease the railroad, of any railroad corporation this prohibition that is not already covered by the antitrust owning or operating a line of railroad· which is directly and substan law? · tially competitive with that of such first-named corporation. l\fr. ELKINS. Mr. President, if the Senator will allow me- There must have been some reason for th.e limitation which The PRESIDING OFFICER. Does the Senator from Iowa is found in this bill; there must have been some reason for the yield to the Senator from West Virginia? change of phraseology that I ha:ve pointed out: I want to know Mr. CUMMINS. Certa.inly. what that reason is. If we had the man here who drew the . l\Ir. ELKINS. The reason for this language is as I have· bill we might know what the reason is for the change; but I stated. I do not think Congress -ought to put beyond the power doubt very much whe.ther the Senator from West Virginia knows of a railroad running at right angles with another road the why these changes were made. If he does, I should be very right to purchase stock in that road, although there might be glad to hear what they are. . the slightest kind of competition. In the case of roads running l\Ir. ELKINS. :Mr. President, if the Senator will permit me, at certain angles until they join and make a continuous line, I I think he was present in the committee during the discussion do not think the acquiring of one road by the other would be when this change was made and the reasons for it were given. a consolidation or a combination in restraint of trade . at all. Was he not? Competition is so slight in respect to many of these roads that : l\Ir. CUMMINS. There was some discussion, but very little, you can hardly define it, but there is a certain competition. The on that particular point. merger of railroads in a .certain sense has not been injurious Mr. ELKINS. It was held there that in a certain sense eyery to the public interest nor in resh·aint of competition. It has railroad in the United States competes with other railroads; been looked upon as a great blessing to the counh·y. Take the that they are all competitive in a sense; and that the original Southern Railroad, for instance. It has 6,000 miles, penetrating wording would not have carried out the intention and purpose the whole South. It has been formed largely by consolidation, of the section. Therefore it was modified so that the prohibi and has resulted in good; but under this bill, if drawn in the tion would be against acquiring a railroad which is "directly way the Senator insists it should be drawn, the Southern could and substantially competitive." That was the reason; and I noe have acquired these lines. That is the situation. think the Senator was present when it wa·s given. That was l\1r. CUMl\IINS. Mr. President, the Senator from West Vir all that was said about it. I supposed that the committee ginia is not answering my question. The Senator is a lawyer, had agreed that the change should be made. and a good one, and a man of wide observation. I have just Mr. CUMMINS. The sense of the committee was never taken read a paragraph from the Northern Securities case which con upon it; it was n~ver submitted either for consideration or tains the real heart of the decision, and my question is, What ·for a vote. I assert with a good deal of confidence that the combination or merger of railroads will be forbidden by tl1e language now used in the bill does not broaden a single whit section that we have now under consideration that is not for the operation of the antitrust law and that every acquisition bidden by the antitrust law? And if there is no such case, why which is forbidden by these words as they now are has been did he put in the prohibition? forbidden for twenty years by the antitrust law. l\Jr. ELKINS. Mr. President, after reading that decision I Mr. CLAY. Mr. President-- will answer the Senator's question. The PRESIDING OFFICER. Does the Senator from Iowa l\lr. CUMMINS. Mr. President, the real truth is that we baye yield to the Sena tor from Georgia? reduced this very worthy and laudable attempt in the begin l\Ir. CUMMINS. I do.- ning to a point where it is practically the same as the prohibi Mr. CLAY. If I understood the Senator correctly, this bill tion of the antitrust law, and the antitrust law applies to all was never discussed in the committee or amended in the com common carriers and not to railroads alone: mittee. I understood the Senator to say that the orig41.al draft, I pass now to the next provision of the section. I have given from which he read a few moments ago, was drawn in New you the prohibition; I now come to the exceptions. The first York, and then the Senator from West Virginia, the chairman .exception is : of the committee, introduced a bill and it was referred to the P1·ov ided, however, That nothing in this section contained shall op erate to prevent any such corporation which at the date of the passage Committee on Interstate Commerce. Then a substitute for that of this act owns not less than one-half of the entire issued and out bill was afterwards drawn by the Attorney-General and adopted standing capital stock of any other railroad corporation from acquiring by that committee as it came from the Attorney-General; that any of the remainder of such stock- in fact the Committee on Interstate Commerce has never Personally · I have no objection to that part of the section. amended the bill in any particular; that at first the Attorney In the original draft it read " 80 per cent " instead of " 50 per General drew a bill on one line, which was introduced by the cent." If we are to legalize certain combinations of railroads Senator from West Virginia., and then drew the bill we are now and are not to make the statute retroactive, then I can soo no considering, and that that bill came from· the Committee on serious objection to allowing a railroad that has 50 per cent of Interstate Commerce without a single line of it being changed the stock of another to have the remainder, because no addi or discussed. tional control or management will be conferred by the acquisi Mr. CUMMINS. Mr. President, the Senator from Georgia tion of the additional stock. That was the exception, and the has stated the case with substantial accuracy; but he must only ~xception, when these gentlemen completed their labors in XLV--212 3378 CONGRESSIONAL~ RECORD-SENATE.· MARCH 18, New York, but now we find in the bill some exceptions to which fact that there had been theretofore competition between Den I have the most serious -0bjection- ver and Coloi:ado Springs would be of no materiality whatever nor to prevent any such corporation which is now operating under because that is not competition in interstate traffic. " ' lease, ~de for not less than twenty years, a railroad of any other such . !'Ir. ELKL~S. Befo.r~ the Senator takes his seat, I should corporation from renewing such lease or acquiring the reversionary like to ask him a question. If we should strike out the word -0wnershlp of th~ les or railroad, either directly or through purchases of the stock of the lessor company. ".dir,~ctly," in this languag~ and say "substantially competi tive, ~o~d ~hat satisfy the Senator? I am now looking at Mr. President, that simply destroys tbe policy of the wh'ole th~ dec1swn m the Northern Securities case. I have a copy bill. I am not here to contend that we ought to return to former of it. times and to overturn all tbe transactions that have taken place Mr. CUMMINS. What satisfies me best is the amendment I under laws as they have been and reduce to their integral ele shall offer to this secti-0n. ments all the combinations that have been made in the last Mr. ELKINS. I understand the Senator has not yet offered twenty years-I am not contending for that. - · the amendment. But we are establishing here policy which declares that a Mr. CUMMINS. I have it before me, and I intend to offer it. competing railroads ought not to be c-0nsolidated; that it is Mr. ELKINS. I supposed from what the Senator said- that not well for the people of the United States that competition he would be satisfied with stxiking out the word "directly" should be extinguished. Out of tenderness to interests tbat and leaving it " substantially competitive." have already been created we allow leases that are in existence to continue until by their terms they expire. Mr. CUMMINS. I would not, in connection with the other But I should like to know from the Senator from West Vir phraseology _used here. I want to see the Senate employ such w~rds as will prevent the consolidation of competing lines of ginia why, if it is againSt the policy of the country to permit railways. consolidations o! this character, there should be a renewal -0f Mr. ELKINS. I think everybody does. the lea e at its expiration~ thereby authorizing, validating, and continuing the very evil which we are endeavoring to correct? Mr. CUMMINS. Yes. Mr.: ELKINS. The committee does-the majority of the Tell me why, at the expiration of any such lease, the lessee committee. railroad should be permitted to buy the reversionary interest of the lessor. No rights have been acquired under the faith M~. ~NS. Very well. If everybody does. we will h1l. ve of a renewal of such lease; no interests have become estab no. difficult~ m so amending this section as that the object will lished by reason of a hope th11t the reversionary interest in the be accomplished. railroad might be bought by the lessee; and if we honestly be Mr: ELKINS. I think the Senator will find himself in sub lieve that it is and should be the policy of- the. United St.ates stantial agreement with his committee before he .,.ets throu.,.h.. to prevent consolidations of this character, then at the expira Mr. CUMMINS. That is to say, you mean th~ committ~e is tion of these leases, and after all the parties have enjoyed all graqually being driven into harmony with me. the rights which they bestow, the law ought to prohibit the Mr. ELKINS. I put it the other way; just the reverse. . consolidation through a renewal of the lease or through a pur Mr. CUMMINS. It depends entirely upon the point of view• chase of the reversionary interest. This seems to me so clear Mr. ELKINS. Altogether. that I need not further pursue the subject. Mr. CUMMINS. I prefer to occupy the one I have sugf"ested. Mr. SUTHERLAND. Mr. President-- 11!!. E~KINS. Will the Senator read the amendment,"'u the The PRESIDING OFFICER. Does the Senator from Iowa Chall" will allow me to address him? I should like, while we yield to the Senator from Utah? a:e. on that P?in:t. to hear the amendment, because I remember Mr; CUMJ\ITNS. I do. v1v1dly and distinctly the discussion in the committee as to the Mr. SUTHERLAND. I should like to return for just a mo reasons why we changed this. .And may I say further that I ment to a former part of the discussion on section 12. In do not think, under the language used, the word " competing," tracing the evolution of the bill, referring to the first bill that you could buy a continuous road, a road that would make a was introduced, it provided that railroad corporations should continuous line or one at right angles or one coming in at an not acquire any interest in any other railroad corporation which other angle. Do we want that to go on in the United States competed. That would seem to prevent a railroad company that you can not acquire these interests, not against-- irom acquiring an interest in other railroad companies, how 1\lr. CUMMINS. Of course, in the ca e put by the Senator from West Virginia, there is no competition at all, and there is ever slight the competition might be. n_o objection to. the acquisition by one carrier of any feeding is Let me put this illustration to the Senator: Here a rail line or branch line, or to any e;x:tension of its original line. way corporation which owns a line of road running from Chi Mr. ELKINS. But, Mr. President, let me ask the Senator- will cago to the city of Denver, we say, or, rather, from· the Mr. CUMMINS. That is not prohibited anywhere by any law city of Chicago to the town of Colorado Springs, in Colorado, and is not proposed to be prohibited. ' which is some 50 or 60 miles beyond Denver. Here is another Mr. ELKINS. If you call in one of these raih·oad experts he railroad corporation-I am stating an actual case-which owns will say it does compete. ' a line of railroad running from the city of Denver through the Mr. CUMMINS. Yes. town of Colorado Springs to Salt Lake City. Under the first Mr. ELKINS. .And prove it to you, too. . draft of this bill introduced, would it be the Senator's opinion Mr. CUMMINS. I do not. accept the opinion of railroad ex- that the owner of a railroad from Chicago to Colorado Springs perts as implicitly as some people do. would be prevented from obtaining ownership of or interest in Mr. ELKINS. They are pretty wise men touching the man a railroad running from Denver through Colorado Springs to agement of railroads. Salt Lake City, although, in the case I have illustrated, the Mr. CUM:M~S. I yield Jo them when it comes to the man portion of the road entering into actual competition is very agement of their properties, but when it comes to the ~lana slight in comparison with the length of the two roads? tion of a law I have an opinion of my own. If the Senator 1'ir. CUMMINS. It will be remarked, and I hope the Sen from West Virginia will listen to me I will show him what I a.tor from Utah will remember, that I have not objected to the should like to have in the bill in this respect. use of the word " substantially." That seems to answer the Mr. ELKINS. I will, with pleasure. question he has just propounded. Mr. CUMMINS. It is as follows ; Mr. SUTHERLAND. Perhaps I misunderstood the Sen '.l'hat no common carrier as herein defined shall, after the pas age of ator, but I understood-- thIB act, purchase, lease, or in any manner acquire the control of or Mr. CUMMINS. I object to the word "directly." any .Interest in any competing railway or boat line, nor shall any such ~ir. SUTHERLAND. I now understand the Senator, but I carrier purchase or hold under any subsequent pm·chase, directly or indirectly, any part of the capital stock, capital shares, or bonds of any say to him that I originally understood that he was in favor other common carrier : Pt·ovicLed, lunoever, That upon proper appUca of the language contained in the first draft of the bill, which tion and upon public hearing, the commission may, if it deems it nec did not contain the word " substantially." essary for the public welfare, J?ermit the consolidation by lawful pro cedure of ~Ines of tran portation which are not competing lines o:f Mr. CUM.MINS. I am in no wise responsible for the language transportation. or it may permit the acquisition by one cai·rier of the used in the first draft of the bill. If I were trying to express stock or bonds of another carrier, if the line of the latter is not a the idea I would not use the language contained ·in the first competing line, and if the purpose and effect of the acquisition of such stock or bonds are to extend in the same general dir ction the line of draft of the bill, but it is very. much better and more compre the purchasing or acquiring carrier. In any such case the urder of the hensive than the language used in the last draft of the bilL commission shall state specifically tbe thing or things authorized and the I think the case stated by the Senator from ·ut.ah would or manner in which the transaction is to be carried forward and com- would not fall within the prohibition of the first draft of the pleted. - bill, dependent on whether the proposed line east of Denver had Will the Senator from West Virginia accept that? also a line to Colorado Springs. If it were intended simply to Mr. ELKINS. No; I will not, Mr. President, bccau e I connect up 'the line ·from Chicago to Salt·Lake ·City, th~ mere think it would do away with all these little lines- scattered 1910. CONGRESSIONAL ~ECORD-_ SENATE. 3379 thro_ugh the country and prevent the. acquisition of those. lines. Mr. ALDRICH. Mr. President-- I do not see the word "substantially" in there, though. He The PRESIDING OFFICER. Does the Senator from Iowa does not use that word. yield to the Senator from Rhode Island? Mr. CUMMINS. The word cc substantially?" . Mr. CUMMINS. Certainly. Mr. ELKINS. It is left out of that amendment. Mr. ALDRICH. What I objeet to, if my objection may be Mr. CUMMINS. I have no objection to the word "substan- considered, is that the Senator from Iowa is assuming that if tially" in qualifying competition. A thing that is not substan- the Senate or the committee or anybody else should change the tial the law does not consider at all. language of this bill afterwards in accordance with their judg- Mr. NELSON. Will the Senator ·from Iowa yield to me? ment, they were driven to do so by the position taken by the Mr. CUMMINS. I will. Senator from Iowa. Mr. NELSON. Why have section 12 at all in the act? The Mr. CUMMINS. The Senator from Rhode Island, if he can section aims in one form or another to tolerate what I call, in gain any advantage by the suggestion . he has just made, is brief, railroad merger by the purchase of stock. Why not leave entirely welcome to it. The Senate knows my attitude toward all that matter to the provisions of the antitrust law and elim- this bill. It knows I am endeavoring as best I can to expose inate section 12 altogether, without any hairsplitting on what some of its defects, and I intend to continue to do it without this term or that term means. Is not that the rational course? being in the least dismayed by the distortion which the Sen Wipe out the whole sectiov.. ator from Rhode Island has attempted to put upon my language. Mr. CUMMINS. I entirely agree with the Senator from I I now come-- · . . . Minnesota. I should like to eliminate the whole section. Mr. BACON. I should like to ask the Senator a question While it might be made good in those parts I have already read, in connection with the suggestion made by .the Senator from there are parts which are so intolerable that ~hen they con:e Minnesota. The present law, as it has been very carefully ex to be understood there will be but one conclusion, and that is pounded . by the Supreme Court, prevents certain mergers in that the entire section should be ex1.mnged. resh'aint of trade by railroads.through the method of combina- Mr. NELSON.. If the Senat~r will allow me, why ~ot leave tion. As I understand the Senator, he is entirely willing, in that general subJect to the antitrust law and say nothing about accord with the purpose of the law in that regard, and desirous it in this bill? that it should be maintained as it ·has been expounded by the Mr. CUMMINS. I am pe~fectly willin~ that that shall . be Supreme Court; and the amendment offered by the Senator done, because I think the antitrust l~w, as it is gradually bemg does not. in any ma_nner conflict with that, but goes further, expounded by the Supreme Court, will cover and prevent every and it seems to ~ me without the necessity for it provides for combination or consolidation in restraint of trade that is to the certain cases in whlch . there may be those mergers and com- injury of the American people. · . binations by the· approval of the commission, mergers which Mr. ALDRICH. Will the Senator yield to me? will not conflict with the purpose of the present law. : l\Ir. CUMMINS. I do. . The question I want to ask the Senator is this: It seems to Mr. ALDRICH. I m;iderstand the Senator from Iowa is an- me the only possible practical effect of that amendment .would nouncing a series of ultimatums- be to perm.it mergers-I say, to permit it; that might not be Mr. CUMMINS. I beg pard __J 3380 CONGRESSIONAL RECORD-SENA'!~. MARCH 18, under this law n.nd do what ft ls charged with doing fn the Mr. NELSON. Wlll the- Senator from Iowa yield to me? salt now. So, to my mind, if we adopt section 12· as it is in l\fr. OUMMINS. I do . . this bill, it will be all folly to curry on that prosecution which l\fr. NELSON. I simply rise to say that I think the Senator has been pending for two years against the Union Pacific from West Virginia: [Mr. ELKrnsJ misunderstood me. I said merger. there was a saving clause that would ave thi suit pending Mr. CUMMINS. I concur entirely in the statement of the against the Union Pacific; but I also aid that after that suit Senator from Minnesot..'1.. The amendment which I shall pro- was over and decided, lf this bill waS' passed with section 12 in Pose and which I read in the hearing of the S.enate a few mo~ the form in which it is, the company eouid commence de no-vo ments ago, it will be remembered, however, goes further and and s~ure stoek: and carry on the merger under the provisions forbids the acquisition by one railroad company ot the stock of this Ia w. 1 ot another railroad company, whether they a:re competing or Mr. CUMMINS. I ·repeat that I think the la:w might well be not, and of cour e that is not eovered by the antitrust law. amended so that it would he stronger, more comprehensive and I had in mind the use by Mr. Harriman of the $100,000,000 effectual than the antitrust law. But this section narrows, in raised by a mortgage upon the Union Paeific Rallroad. I need my opinion, rather than broadens the remedies which we have not refer to that transaction, which has already received uni· against combinatioilS' and consolidations. versa! condemnation. But I do not belie-Ve that any railroad But I have not reached the most objectionable part of this company should be permitted to own the stock of any other section. I now touch it, and I venture to say that the history of common carrier, whether the two companies are, in the ordi- legislation can show nothing that parallels it-I was a.bout to nfil'y sense of the term, competitive or not. It is always de- say in enormity. I have marveled more at the concluding pa.rt structive of the proper relations between the railway companies of thfs section than at any other' part of' this wonderful bill. and the people to permit one railway company to have an in- Let us see what it is. After these prohibitions to whieh I fluencing interest in the stock of another, without regard to have ref.erred, the bill then provides that l.f any two railroads their being competitive or otherwise. are proposed to be consolidated or merged they may make an But I now come-- agreement to ·that effect, and if they are doubtful with respect Mr. ELKINS. Will the Senator allow me to refer-- to the validity of the merger or consolidation and want abso- 1\fr. CUMMINS. I yield. lute protection and immunity before the transaction is carried Mr. ELKINS. Section 12, which the Senator is willing to into actual fact, they may file a petition in the court of com- strike out, as is the Senator from Minnesota, is an e1rort surely merce stating their case as they desire to state it and the to prevent the acquistion or- the purchase of stock or the leas- United States Is then compelled to appear in that suit: ing of substantially competitive roads. Thereupon it proceeds to judgment, and if, upon the case Mr. CUMMINS. I said originally that that was the avowed stated, the commerce court is of the opinion that the law is not purpose. I am not willing to say that it is an effort to do that. violated in carrying into effect the agreement which is thus Mr. ELKINS. The purpose can be gathered from the, Ian- presented, it issues a certificate of innocence or legality and guage. Now, as suggested by the Senator from Georgia, there that certificate and judgment constitute an estoppel between might be cases decided outside of those reached by the decision the effect of the consolidation and the United States. in the Northern Securities merger case that this would meet. l\Ir. CRAWFORD. Mr. President-- This section would surely pr-event the acquisition or the pur:. The PRESIDING .OFFICER. Does the Senator from Iowa chase o:t stock in those roads, and had we not, for greater secu- yield to the Senator from South Dakota '2 rity, adopt it? The Senator from Minnesota is willing-to leave Mr. CUMMINS. I do'. it all under the Northern Securities case decision. I am not Mr. CRAWFORD. Does the Senator understand that a ship· willing.,. in a sense. I do not believe it is wise to allow under per or an interested party who might be concerned in the prO'o all conditions, as the Senator says. railroads to own stock in posed agreement may in any way intervene in this proceeding other raih·oads. There are conditions when I think it ls to be heard, to enter a plea, or to prosecute an objection to it? wise-- Mr. CUMMINS. Not at all; the parties to the consolidation .Mr. BACON. I hope the Senator from West Virginia will and the United States only are to be heard. permit me to interject that either he misunderstood what I said Mr. NELSON. Will the Senator allow me a question 1 or I very greatly misunderstand what he now says--either one Mr. CUMMINS. Certainly. or the other. Mr. NELSON. Do you not consider that it would be a blessed Mr~ ELKINS. Another point I wish to make is that r can privilege if you and I were about to enter npon some qnes not see how section 12 would in any way validate or affect, tionable scheme and did not know exactly whether it was in the under the reading of the statute as drawn, the pending suit, pale ot the law, if we could go to some eomt ill advance, before and it he will allow me to read it, I will not trespass upon we embarked upon the scheme, and get them to bless it before him further. we started in? Mr. CUMMINS. I do not contend that it would atrect the Mr. CUMMINS. I can conceive ot nothing that would be so pending suit. · complete a garb of protection f-0r illegal contracts and illegal Mr. ELKINS. The Seruxtor from Minnesota, if I understood combinations as the one that is thtm proposed. him. said it would be ot no avail. I call the attention of both Mr. BACON. I wish to suggest tD the Senator that there Senators to this language: was at least one other that is equally as effective~ and that was the method pursued by the steel eorporntion when it desired But nothing herein contained shall be constrned to affect the rights to absorb the Tennessee Coal and Iron Company and went and or liablllties of e1ther party to any suit or action pending at" the pas- sage of this act, nor to authorize or vulidate the acquisi1:ion_ by a rail- got a. very high sanction and authority to proceed with the road corporation, being a common cn.rrier subject to said act to regu- business before it undertook its performance. late commerce, as amended, of any interest in the capital stoe'k or the ""f ELKINS M n-- • ~ t purchase or lease of the railroad of any other rallrood company in vio- .u r. · r • .c .1.esiu.en -- latlon of any other act of Congress, including the act approved July AI:t·., CUMMINS~ In answer to the Sena.tor from Georgia, let 2, 1890, entitled "An act to protect trade and commerce against un- me say it is as if the Senator from West Vir-ginia were bent lawful restraints and monopolies." on destretying somebody, having made up his mind that he was I do not see how the case could be reached in any better form. going to kill him, he would set out all the circumstances that The only difference between the Senator and myself was, ·I he intended should surround the transaction, and ~n go to a believe, upon the terms "directly" and " substantially." The court and ask the court w.hether lf I do the thing in this way Senator-- I will be guilty of murder in the first degree, or murder in the Mr. CUM.MINS. There are very many othex differences. second degree, or manslaughter, or possibly whether I may be Mr. ELKINS. The Senator is willing to give up that word. acting in self-defense. Mr. CUMMINS. There are many other differences, if the l\Ir~ ELKINS. Will the Sena.tor pardon. an interruption 1 I Senator will permit me. want to CATI his attention to the fact that the illustration is not Mr. ELKINS. .I am looking over the Northern ·Securities a parallel, because under this bill the man who was to be mur case. Surely the purpo~e of the authors of this biµ is to dered and wanted to be murdered would also be one of the reach an evil and to correct it if we caa I am unwilling to parties to the suit leave it where it is now under the Northern Securities case. I Mr. CUMMINS. I agree it lacks i:Q. that one particular ab tbink we ought to reach it. I regret th~t it has ever been ·per- solute accuracy, but it iB the most. wonderful and extraordina.i:y mitted under state laws that parallel and competing lines could thing that was ever propo~ed in legislation. Imagine that two bold stock in another road. It iB an evil. It ought not to have years or. tlu:ee years ago you had been asked to am 1ng and meeting together for the purpose of arriving at a con commerce that is considering a contract laid before it from the clusion as to ·what we should do after final judgment was taken standpoint of the provisions of this proposed law and the anti of all upon a particular subject; but as a legal proposition, I trust law. That part of it which I have read gives the court shall continue to assert that the President of the United States authority to say whether the proposed transaction is in violation is not the author of this provision as a lawyer until he says of either this law or the antitrust law. There might be some so over his own signature, and I shall continue to assert that safety in that, but now follow me as I read the last clause of no one can :find authority under the Constitution for under this section : taking to put such a provision into this act. In making the determination herein provided for the court shall take Mr. BRAJl..TDEGEE. Mr. President-- into consideration the effect of such proposed acquisition upon the due observance and effective enforcement of all the laws of the United The PRESIDING OFFICER. Does the Senator from Iowa States, and the relative importance of any benefit to the public interest yield to the Senator from Connecticut? and of any effect upon competition resulting from such acquisition. Mr. CUMl\IINS. I do. Mr. BRANDEGEE. The Senator from Iowa has referred to I should like to know what the Senator who becomes the the Sherman antih·ust act several times, and he also stated, if sponsor for this bill thinks that clause means. I assume that I understood him that he had no objection to the use of the these words mean SODlething, because they have come into the bill since it was originally composed by the high authors to word " substantiai " in any connection. I ask him if the word whom I have referred several times. They came into the bill " substantial " were inserted before the words " restraint of after these long hearings. What do they mean? They mean, if trade" in the Sherman antitrust_act, he thinks it would make they mean anything, that when this proposed transaction is sub no difference in the construction of the act? mitted to the court, notwithstanding it is found to be in violation Mr. CUMMINS. I think it might under some expressions of of this law, notwithstanding it is found to be in violation of the the Supreme Court of the United States. antitrust law, nevertheless the court can, if it believes that the Mr. HEYBURN. Mr. President-- public welfare would be subserved, declare it to be a lawful The PRESIDING OFFICER. Does the Senator from Iowa agreement and a lawful arrangement. yield to the Senator from Idaho? . Mr. GORE. Mr. President-- Mr. CUM!illNS. I do. The PRESIDING OFFICER. D.oes the Senator from Iowa Mr. HEYBURN. In connection with tha~ matter, . I ~ould yield to the Senator from Oklahoma? suggest that the interpretation of the word substantial was Mr. CUMMINS. I do. what the Supreme Court went off on in its interpretation of sec l\Ir. GORE. I should like to ask the Senator if he does not tion 4 of the other act, and it changed the whole law on the think the language he has just read to the Senate undertakes subject and nullified the original intention of its framers. to confer upon this court a legislative power, a legislative func Mr. CUMMINS. I do not recognize anything said by the tion, and not a judicial power? Senator from Connecticut or by the senior Senator from Idaho Mr. CUMMINS. I was about to add to my last remark that to be in conflict with anything that I have said. it is so plainly and obviously beyond the power of Congress to Mr. BRANDEGEE. My point was, if the Senator had no confer upon the courts the i·ight to determine whether any objection to the word " substantial," if it would not do to so particular thing is in harmony with public policy or agreeable amend the Sherman antitrust law? to the public welfare, that I wonder how any lawyer ever came Mr. CUMMINS. I did not suggest any amendment to the to give his assent to the proposition. antitrust law. I said I had no objection to requiring a sub l\Ir. ELKINS. Mr. President-- stantial competition to exist between two railroads before we The PRESIDING OFFICER. Does the Senator from Iowa prohibited their consolidation. That _is the proposition that I yield to the Senator from West Virginia? made, and I adhere to that. Mr. CUMMINS. I do. Mr. BRANDEGEE. I did not mean to criticise the Senator's Mr. ELKINS. The language is this: position but I understood him to say that he had no objection In making the determination herein provided for, the court shall take to the ~se of the word " substantial " in any connection, and into consideration the effect of such proposed acquisition upon the due that it meant the same thing whether it said substantially or observance and effective enforcement of all the laws of the United States. · not. I thought it made a great difference whether the word Now, could there be any objection to that? Do not courts do _"substantial" was in the Sherman antitrust law or not. it when determining-- Mr. CUMMINS. It has made a difference in some of the Mr. CUMMINS. Mr. President, we need no instruction to the decisions. court when it is enforcing the law. ·Now Mr. President, this proposition has so startled the Sen l\Ir. ELKINS. . Let me ask the Senator another question. If ators present, and there has been so free an expression of we strike out the words "and the relative importance of any dissent from the idea of allowing or creating a court for the benefit to the public interest" and leave in "of any benefit purpose of hearing such· cases in advance that I have not been upon competition resulting from such acquisition," would it not able to give the weightiest reason which comes to me against be constitutional? the proposition. Waiving the matter of constitutional power, l\Ir. CUMMINS. I am opposed to the entire paragraph. It waiving the novelty of the idea, let me suggest to Senators that is unconstituti9nal; it is impolitic; it is unwise; it is contrary these cases will be determined upon the statement made by the to all the notions of the civilized world. persons or corporations who propose to enter into the transac l\Ir. ELKINS. We can not satisfy the Senator. tion. There is no possibility of inquiring further than the printed Mr. CUMMINS. No, sir; not so long as you attempt to keep page submitted by these proposed conspirators to the court, and that sort of a provision in the bill. yet when a judgment has been entered upon that printed page, Mr. BORAH. Mr President-- the United States is forever estopped, no matter what may be The PRESIDING OFFICER. Does the Senator from Iowa done under these contracts or under these arrangements, if by yield to the Sena tor from Idaho? any construction they can be held to be authorized by the Mr. CUMMINS. I do. agreement or arrangement as proposed to the court. Mr. BORAH. I should like to ask the Senator from West No civilized nation will permit its affairs to be determined Virginia what he understands to be the meaning of the words in such a lawsuit. In order that the judgment of a court shall "and the relative importance of any benefit to the public in be of any value, it must be the outcome of a real controversy terest?" in which the actual facts have been developed and weighed with l\fr. ELKINS. I have just asked the Senator from Iowa if the principles of law applied to them. these words were stricken out, would he agree to the rest of I pass from this provision. I pass to another which is still the paragraph? I will ask the question of the Senator from worse, because the section grows as we proceed with it in ex Idaho. I want to say to the Senator that he is amongst the traordinary provisions. I now want to read you one which is most learned and accomplished lawyers of the Senate. When also no>eL . he speaks, such a lawyer as I am must go a ide. I ask him Mr. HEYBURN. Will the Senator permit me, before leaving what it means. He interprets the law every day; he studies that, to suggest that the word "substantial" is never used in the law; he is in the law; be li>es under the law. connection with law, and only in connection with definitions in Mr. CUMMINS. What is the question? equity? Courts of equity may do substantial justice in those Mr. ELKINS. I am asking the Senator from Idaho what cases wherein the law, by reason of its universality, is deficient, those words mean. and so on that line; but the word "substantial" has no ex Mr. BORAH. I would be very glad to transf r that question istence,. because it is a wavering word in law, and law is an to the Senator from Iowa, because I haYe I!ever been able to accurate stateDlent of rule of action. satisfy my mind what the clause does mean. The fact is, Mr. Mr. CUl\Il\fINS. I come now to the subject we are discuss President, as the Senator from Iowa says, if it means anything ing. Of course, the one just suggested is a matter that we at all it means the· power of a court to su pend the operation considered some time ago, but from now on we have a court of of this law. It rueans, notwithstanding the fact that there may 1910. CONGRESSIONAL RECORD-SENATE. 3383 be a combination in contravention to the terms of the law, yet it would have been a matter.which they would have had a per if the public interests so appeals to the court, the court ma:y ·fect right to submit under this provision of law t.o this court. susDend the operation of the law and permit the combination. Mr. CUM.l\ITNS. Undoubtedly. But I renew my suggestion. It confers upon the court two powers which are seldom con These words do mean something. The men who framed thi!! ferred upon a court since the revolution in England in 1688, bill did not employ language merely to fill the space of the bill. and that is to suspend the operation of law and at the same time These words are used to accomplish just what I have sug to legislate. gested. It may be that it the question was before Congress, I That is the reason why I as}rnd a while ago in all earnestness should be very willing to vote to enable an American railroad who was the author of this provision. I can not, with my lim to- buy a railroad owned by a Canadian company, for I have ited knowledge of law, notwithstanding the high compliment as much loyalty and patriotism in that respect as, I think,, any ot the Senator from West Virginia-I boast of no excessive man can have; but I am not willing to give to the courts of knowledge of law-with my limited understanding of the law,. the country the power to suspend and destroy an act of legisla I can not perceive how anyone eould seriously contend that tion either in.. such an instance. or in any other. We have gone there could be written into a solemn act of legislation a pro far, I think, to disparage our own authority when we propose vision which lodges anywhere, under a representative form of that a court shall ha.ve any such jurisdiction. I believe, Mr. go-vernment, the powei: to suspend the solemnly enacted con President, that what I have said with regard to that section. is stitutional act of Congre s. all that need to be said upon it. l\Ir. ELKINS. Let me ask the Senator-- Before I pass to the last section, I send to the desk an amend The PRESIDING OFFICER. Does the Senator f.rom Iowa ment which I propose to offer to section 12, which I ask to yield to the Senator from West Virginia? be printed and laid on the table to be hereafter offered. Mr. ELKINS. :May I a k the Senator from Idaho one question? Mr. FLINT. I suggest to the Senator to read it. :Mr. CUMMINS. I yield for that purpose. l\Ir. CUMMINS. I have. already read it once, and it is too Mr. ELKINS. What difference does it make who drew this long for me to now read it again. proposed law? The question is whether it is right as it is before The PRESIDING OFFICER. The amendment will lie on us now. the table and be printed. 1\Ir. BORAH. l\Ir. President-- 1Ur. CUMMINS. I now pass to sections 13, 14, and 15; and Mr. ELKI.i: TS. Let me ask farther, Is not the proposed law I intend that my review of those sections shall be very brief,. con titntiona.l as it is drawn? That is the question. because they are so complicated and so intricate that all I can · Mr. BORAH. No; I do not think it is. hope to do is to inspire an effort on the part of Senators to l\Ir. ELKirTSr If you strike ciut the words "and the relative become thoroughly familiar with them. Those sections enter importance of any benefit to the public interest? " upon a plan for the regulation of capitalization of common Mr. BORAH. I thought if I could find out who drew this carriers. We have neTer yet attempted to regulate by Con proposed law I would go as an humble penitent to the feet of gress the issuance of stock or bonds. I am inclined to think that party and seek to find out b;v what authority they are that Congress has the authority to determine what the cap· ~ undertaking to do it. ta.lization of corporations organized-- . Mr. ELKINS. I thlnk the Senator can determine that him [At this point Mr. CUMMINS yielded to Mr. PURCELL, and tb ~ self and determine in the public interest, from the language. roll of the Senate wasi called.] As to who is the author, suppose a man were in England? Ur. CUMMINS. Mr. President, before I pass to the last sec l\lr. BORAH. I should think this-- tions of the bill I desire, in connection with my remarks upon ' Mr. ELKINS. He would not cross the Atlantic to see you1 the extraordinary proPosition to give the courts jurisdiction to Mr. BORAH. I should think not a man from England; but set aside the policy of Congress and override the letter of the we are speaking now of law in accordance with our idea of gov laws, to read an extract from the testimony of one Otto H. ernment, where you do not suspend the operation of the law, Kahn, a very well-known banker ot New York City. The testi where you do not confer legi lative powers upon a court. I sub mony was given in the Union Pacific case now in progress: mit that I should like to know the history and the genesis of Mr. Severance first asked the witness about the recent purchases of this provision. Southern Pacific stock at the morning session. At that time Mr. Kahn deferred answering until he had consulted with couns~ but when the :Mr. CUUl\llNS. Now, l\fr. President, I will enlighten the afternoon session came Mr. Kahn volunteered a statement concerning Senator from West Virginia, or rather recall his attention to it. explaining that wh.ile he had not gone back into the board of the an incident that happened before the committee, which will Union Pacific at the time, his subsequent lmowledge as a director cov ered the transaction. He said : enable the Senate to know just what these words were in "A bill we were informed, was introduced in Congress, or contem tended to accomplish. I asked the Attorney-General when he plated to be introduced in Congress, which would give to those railroads was before the committee what these words meant and in what that had 50 per cent of the stock of another railroad, competing or utherwise, the right not only to retain that 50 per cent, but, it they so way it wa.s proposed to make them overative. The Attorney chose, to purchase the balance in. addition to that 50 -per cent, while General is a very frank man, and, I repeat, he is a. very learned railroads that had less than 50 per cent bad no such assurance. man in this subject. This was his answer. I do not attempt " Thereupon, on the advice of Judge Lovett, it was deemed in. the best interests ot the Union Pacific that its holding on Southern Pacific to use his words. He said, Suppose we take the instance of a stock be. increased to a total of 50 per cent of the entire o.utstandin"' certain Canadjan railroad: becoming the owner or interested in amount of Southern Pacific stock- " rail1·oads in New England, so that they could take up the freight You will observe in this some connection with the progress ot oi New England, carry it over the Canadian road.to the west this bill through the various conferences that have been held ern coast,. and thus deprive the people of the United States or respecting it- the railroads of the United States, of freight that originates "A few weeks afterwards JUdge Lovett advised that the terms of the within our own borders. bill, as he understood them, had been changed or weTe going to be Now, said he, under the terms of this law, and of the anti ch.anged- tru t law, the American railroads of New England are forbidden This is Judge Lovett, who has taken the place made vacant t.o acquire those railroads hich are owned or may be owned by by the death of Mr. Harriman, who controls the destinies of the Canadi n companies; but, raid he, e'\"erybody will recog the Union Pacific road and all of its subsidiary companies. nize the desirability of having our railroads owned. by ourselves Judge Lovett had f>een to Washington- and our freight carried in our own territory ; and this provision ·~A few weeks afterwards J"udge Lovett advised that the terms ot the might enable the court, when such a contract was put before it bilf, as he understood them, had been. changed or were going to be changed, and that the provision to which he referred and which was for its determination, to declare that notwithstanding the pur the· reason of the purchase of additional Southern Pacific stock, would chase proposed was of a competitive line, notwithstanding the not go into the bill, and Judge Lovett advised that, in consequence, the transaction was denounced not only by this. section, but by the purchase of additional Southern Pacific stock be stopped at once. It antitrust law, nevertheless the court could say that for the gen w~;:i stop-ped on the same day, and no more stock has since been acquired." eral welfare ot the United States and the people of the United I submit that sworn statement of Mr. Kahn to the Senate States the court could suspend the operation of those laws with as indicating something of the purposes of the railway com regard to that transaction. That is the theory that I heard ex- panies with regard to thts bill. pounded in the Committee on. Interstate Commerce. I now come to sections 13, 14, and 15, they being the last :Ur. BORAH. ?ifr. President-- sections of the biII, and they deal with capitalization. It has The PRESIDING OFFICER. Does the Senator from Iowa. not yet been decided that it was within the power of Congress yieJd to the Senator from Idaho? to regulate or limit the capitalization of common carriers or Ur. CUMMINS. I do. ganized under the laws of the various States. I do not intend Mr. BORAH. That was one of the arguments which: were to enter into any inquiry or discussion with respect to that advanced by the defendants in the Northern Securities case, that power. I am inclined to think that Congress has the power; the public was not injured, but really benefited, by the combina but in order t.o reaeh that conclusion it will be necessary to tion, and I apprehend that while they did not satisfy the court first conclude that the capita.I stock, or the capital in a broader 3384· CONGRESSIONAL RECORD-SENATE. MARCH 18, sense, of a common carrier doing an interstate business, is an will rest upon the entire· property of the company, and its re instrumentality of commerce. I hope that the Supreme Court muneration must depend upon the entire business of the com of the United States will so decide when the question shall come pany. b'efore it, if it ever reaches that tribunal; but there are some I asked the Attorney-General, while we were in discussion observations in the Northern Securities case, both on the part with him, whether the Pennsylvania Railroad could not build a . of the majority and the minority, that lead one to believe garage costing $10,000 and put upon it $10,000,000 of stock or that it is far from a settled question in the minds of the justices bonds which were to become a part of the regular capitalization of the Supreme Court. But I am willing, for the purposes of of that company and still be lawful so far as this section is con this argument, to concede to the author of this bill the power cerned. What value will we find in a provision of the law of Congress to limit the capitalization of railways engaged in which permits an evasion of that character? It can take any interstate commerce. I do think, however, it would be wise, as segregated part of its property which happens to lie witllin the we enter upon this somewhat untried field of the law, that our boundaries of a single State and which is not physically used in regulation concerning capitalization should be the subject of an connection with its interstate business and use those parts as the independent measure and should not be so associated with other instrumentality for issuing all the stocks and all the bonds and undoubted powers of Congress as to imperil the law which without the intervention of the Interstate Commerce Cornmis: may be passed in the exercise of the latter. sion, that the promoters of the enterprise de ire. l\Iy objection to these sections are, first, that they are confined .Again, there is no prohibition in this section again t the to railroads. I am in favor of a rigid supervision of the capi capitalization of the increased value of railroad property. I talization, not only of railroad companies, not only of common may not have the sympathy of many Senators-although I hope can·ier corporations, but of all corporations by the proper au I have-in the proposition that the time has come to forbid thorities. I do not believe that any capital stock should be issued common carriers capitalizing what, for want of a better name, by any corporation without the payment to the corporation or I shall describe as the "unearned increment "-the increasing the agreement to pay to the corporation the full par ·rnlue value of their property occasioned by the general development thereof. · I do not believe that any bonds of the common-carrier of the country. I do not think that railway companies or com corporations should be sold unless sold at the fair and reason mon carriers have a right to exac;t _of the people who use their able market value of the bonds; but I object to the limitation properties charges that will give a reward or a remuneration of this wise provision to the railroads of the country. It is just upon these increased values. The property of a railroad com· as important that the capitalization of other common carriers pany, or of any other common carrier, is in a sense devoted be held within proper bounds as it is that the capitalization ot to the puplic service. There are rules applicable to these prop railroad companies be limited. No reason has been given, and erties that are not applicable to ordinary private institutions no reason can be given, for limiting the application of these sec and private enterpri es. I do not think that a railway com tions to. the railroad companies. pany like the Pennsylvania has any right to ask of the people Allow me to state at this point-I omitted to do so a moment who use it charges that will return interest upon the increased ago-just what these sections are in outline. They first provide value of the property which that company now owns. But that no capital stock shall be issued by the railroad companies whether I am right or not in regard to these things, I am right hereafter without the payment at par for the stock to the cor in asserting that the railway companies and the common car poratiop, and, if paid in services or in property, that the value riers- ought not to be permitted to represent these increased of the services and the value of the property shall be fixed by values 'in stocks or in bonds, because to do so is to emb·arrass the Interstate Commerce Commission. So far so good. It is and to complicate the final solution and settlement of the very further provided that no bonds shall be issued and sold at less difficult problem that I have just su.ggested. · than par, unless under a certificate of the Interstate Commerce The stock now issued represents all this property, and if the Commission fixing the reasonable selling price of the bonds, railway companies have the right to · regulate and fix their and then follows a long and intricate and complicated series of charges with respect to the increasing value of their property, exceptions that practically destroy the efficiency of the original then the stock outstanding will receive all these additional provision. charges and these additional rewards. But it is not good policy, I have examined them carefully, and I am not able to con it is exceedingly unwise, to allow the railroads to capitalize ceive any schem.e of capitalization which we have known in this unearned increment, and thus when we do come to settle this country in the last twenty years that is not provided for the question, which will happen some of these days, we will in some one of the exceptions to 'the general rule laid down in not be embarrassed by stock outstanding, representing such the beginning of the section. It is another illustration of ap -value, in the hands of innocent purchasers. pearing to do a thing without doing it. So, I say, with regard to the betterments and enlargements . For instance, there is nothing in this section that would prevent of railway property which are paid for out of surplus earn a railroad -company from being organized in any State in the ings-I mean the earnings beyond those necessary to maintain Union, and duripg the course of the construction of the road cov the property in full and complete condition and to reward those ering it mountain high with stocks or bonds. Congress has no who have invested their moneys in the property~represent power, concededly, to control the capitalization of a railroad com just so much taken by the railroad company in excess of fair pany while in the course of construction, if it is being constructed and reasonable charges. When those surplus earnings are within the confines of a single State, but after its capitalization invested, as they have been in the case of nearly every railroad is issued and every harm that can possibly be done has been company in the United States, in additions to the property, in done, the..n the company can be united with an ·existing com the enlargements of the property, in extensions of the prop pany, the capitalization assumed, and whatever evils result erty, the surplus earnings so invested, for the same reason, or follow overcapitalization go on unchecked and unimpeded. ought not to be capitalized, so that the people whom the rail I think any lawyer in the Senate will undertake, notwithstand road companies serve shall be compelled not only originally to ing the provisions of this bill, to issue all the capitalization, pay excessive charges, but, after having paid them, and seeing whether in stock or in bonds, that the most audacious promoter them represented in capitalization, to be required to pay inter of the whole country may desire. The only way in which est upon the exactions that ought not to have been made. Congress, if it has the power at all, can ever deal with the I give an illustration. I cite the case of a railway, one of the capitalization of common carriers, is to forbid common carriers best railways in the western country; I think altogether the from doing an interstate business if the capital stock, after best railway in the western country. I do not remember the the passage of the law, has been issued in violation of the figures for the last two years, but up to two years ago, for a terms of the law. Then we will embrace all enterprises, period of four years over which I had occasion to review the whether they be carried on within the limits of a State or affairs of the company, it had earned 25 per cent per annum whether they cross the borders of a State, but this bill will be upon all its capital stock. · utterly ineffectual in the particular I have just mentioned. After paying all the interest upon its bonds, after paying 7 Then I beg the attention of the Senate to almost the first per cent upon all its preferred stock and 8 per cent upon all phrase of the section : its common stock, it still had 17 or 18 per cent upon its stock No railroad corporation which is a common carrier subject to the act capitalization undistributed. It used that surplus, year after to regulate commerce, approved February 4, 1887, as amended, shall year, in enlargements of its property and betterments; it used hereafter issue for any purpose connected with or relating to any part it for purposes which a railroad bookkeeper would charge to of its .business governed by said act- construction, to capitalization, and not to running expenses or It is attempted in that way in the issuance of capitalization the cost of maintenance and operation. From year to year it to distinguish between the business of a corporation covered by issued scrip on account of the surplus earninO's, and when the this act and its other business. For instance, a railroad com scrip had aggregated enough in the hands of any stockholder pany engaged in mining coal can issue all the capitalization de it issued its capital stock for the scrip. And what was the sired and refer it to its coal mines, and yet that capitalization result? The very people who had paid to this railroad com- 1910. CONGRESSIONAL RECORp-SENATE. 3385 •t 't I t k th th o ht or unless the par value of the same, or more, bas been paid to the cor.. pany 17 per cent upon 1 s capi a s oc -more an ey ug poration or joint-stock association by the transfer or conveyance o:t to have paid if the charges had been regulated fairly and rea- property to the corporation or joint-stock association which the cor sonably-were then asked to pay 17 per cent more upon the poration or joint-stock association can lawfully purchase and hold; and capital stock issued, which represented these unfair and unjust if it is sought to pay for any capital stock or sha_re of capital in prop- erty, then the value of the property to be so transferred and conveyed exactions. shall, prior to the issuance of the certificate or other evidence of shares, Now, I am not attempting to settle that question. There are be determined by the commission, upon the application of the corpora some very good people who believe that the increased vaJue of tion or joint-stock association, in such form as the commission may pre- ·operty, occasi'oned merely by the growth and develon- scribe, and no property shall be received in payment of capital stock railway PI Y or share at a greater value than so fixed by the commission. No such ment of the country, belongs to the railway company and that corporation or joint-stock association shall issue any capital stock or the stock owners are entitled to be remunerated by reaso:i;t of it. share or shares or any certificate or evidence thereof for or on account •t · of the increased value of any property already owned by the corpora- l am not going to discuss that. I do not so believe, b u t 1 is tion or joint-stock association, nor for or on account of earnings, not imminent at the present time. All I ask is that if we are whether iq hapd or theretofore expended in the maintenance, operation, to enter upon a plan for the regulation of the capitalization betterment, or enlargement of its railway or other line of transporta- f our common ca1Tiers we shall not sanction the capitaliza- tion. The money or p"roperty received by any such corporation or joint o stock association for its capital stock or shares issued as aforesaid, tion of either the unearned increment or surplus earnings in- must be used either for the payment o:f indebtedness or the maintenance, vested in the properties. operation, betterment, or enlargement of its transportation facilities These sections to which I have referred will permit the cap- and not otherwise. Capital stock or shares issued in violation of the provisions of this section shall be void, whether in the hands of the italization of every increasing dollar that may be found in the original purchaser or any subsequent purchaser, and may be canceled railway property, toward which the railways have contributed in a suit brought by the commission or by any citizen of the United not more than the energy and the business enterprise of all the States for that purpose. Every stockholder, director, or officer through whose vote or act a violation of the provisions of this section occurs rest of the people of the United States. It will permit the shall be guilty of a felony, and upon conviction shall be fined not less capitalization of these surplus earnings, which, as I have sug- than 5,000 and not more than $10,000 and be imprisoned not less than · t I · I t t h Id one year· and not more than three years. gested, grow out o f excessl\e ra es. simp Y wan ° 0 "That no corporation or joint-stock association, being a common that question free from embarrassing and complicating circum- carrier as defined in the acts to which this act is an amendment, shall stances, such as the issuance of stock: and its p~ssession by use or expend the proceeds or any part thereof, of bonds or other evi- · t t'l l th..,...,. p ob dences of indebtedness issued by it and secured by mortgage, deed of thousands·o f mnocen persons un 1 we can grapp e Wl Lile r - trust, or other lien upon the property of such carrier, except as follows, lem itself. to wit : · Finally, with regurd to these sections, I protest against the "First. In refunding existing bonds or other evidences of indebted- . 'd ness secured by mortgage, or deed of trust, or other lien upon the provision which declares that even t h ough a ra1 1roa company property of the corporation or joint-stock association, in which event in issuing its stock and bonds were to violate every line and the par of the new bonds or other evidences of indebtedness shall not every letter of the section, and set afloat its capitalization in exceed the par of the existing bonds or other evidences of indebtedness. · f th · · hi h " Second. To pay indebtedness incurred in the extension, betterment, defiance of the law and in disregard o every provis10n w c maintenance, or operation of the facilities or instrumentalities for we are about to enact, that nevertheless that capitalization transportation. · shall be valid in the hands ·of innocent purchasers. That one "Third: For the construction or acquisition of additional lines, fa. . rovision nullifies the whol_e attempt. Of course the securities cilities, and instrumentalities for transportation which the corporation P or Joint-stock association may lawfully construct or acquire. will always be in the hands of innocent purchasers. If we are 'Any officer, director, stockholder, representative, or agent, through in good faith attempting to limit stocks and bonds to the actual whose act or vote a violation of the provisions of this section shall . vestment, then we must. not permit the transfer of the stocks occur, shall be liable for the entire sum so misused or so misexpended, Ill and such liability may be enforced either in a suit brought by the cor- and the bonds to men who may have had no knowledge of the poration or joint-stock association or by the United States in behalf transaction itself to validate those stocks and bonds. The only of and for the use of such corporation or joint-stock association; and ·eason the only purpose.of the proposed statute is to relieve the any such officer, director, stockholder, representative, or agent shall r , also be guilty of a felony, and upon conviction shall be fined not less people of the country from the burden of paying interest upon than $1,000 nor more than $10,000, and imprisoned not less than one these bonds and of paying dividends upon the stock. year and not more than ten years." If that is not our purpose, then we are wasting our time, Mr. CUMMINS. Mr. President, I have completed my review. and.if we want to relieve them of this burden, ·we must say that of this bill. I desire to present, and have laid upon the table, stocks and bonds issued contrary to the command of Congress two further amendments, which are not, in a proper sense, shall have no validity whatsoever, no matter in whose hands amendments to the sections that I have discussed, but are per they may happen to be. Thus and thus only will we ever pre- tinent to the general scope of the bill. I ask that they be vent what everybody now concedes is an ever-growing evil. printed and laid upon the table. They will be hereafter offered. Mr. ORAWFORD. Mr. President-- The amep.dments are as follows: The PRESIDING OFFICER (Mr. SUTHERLAND in the chair). Add as a new section of the law the following: Does the Senator from Iowa yield to the Senator from South "That no common carrier shall, after the 1st day of J"anuary, 1012, transport or carry freight or passengers from one State to or through Dakota? another; from, to, through, or in the District of Columbia; from, to, · Mr. CUIDfINS. I do. through, or in a Territory of the United States, or to or from the . Mr. ORAWFORD. Right here, if the Senator will permit me, United States and any foreign country, if it is engaged in or controls, · tr bl I •t th directly or indirectly, whether through the ownership of stock in any arises a point which I conf ess gives me some ·ou e. s 1 e other corporation or otherwise, any other business. The provisions of idea of the Senator that stocks and bonds already issued, al- this section may be enforced by a suit brought for injunction in any though in the hands of innocent parties, should be treated as court of competent jurisdiction by the United States or any citizen thereof." they would be treated were they inth e h and sof the parti es w h o Amend section 1 of the act of 1887, as amended, by adding thereto were responsible for the illegal transactions of issuing them the following : without a bona fide consideration? I am speaking of what has "The term 'common carrier' shall include telegraph and telephone · th f t companies, and also all corporations which hold such an interest, direct already occurred , no t as t o Wh a t Will occur Ill e u ure. or indirect, in the stock, bonds, or other property of a common carrier, Mr. CUMMINS. So far as I am concerned, I believe there as giyes control or management over such common carrier or its should be no effort made to invalidate stocks and bonds hereto- .affairs." fore issued; I mean no effort so far as Congress is concerned. Mr. CUMMINS. Sena tors, I owe you all an apology for con ! believe in accepting the situation as it is. If we have been so suming the time that I have taken in examining this bill. It neglectful of public interests as to allow a custom or habit to has been a dreary and a somewhat difficult work. I have for proceed which we now condemn, I .do not believe we ought to years felt the profoundest interest in the subject we are con try to visit the penalty of our negligence upon those who have sidering. I believe there is no other subject that concerns the taken stocks and bonds in reliance upon the law as it is. I am welfare of the American people more deeply than the regula speaking only of stocks and bonds to be hereafter issued; to be tion of our interstate carriers. All business, in the encl, must issued after this law goes into effect, and after every citizen of depend upon the fair and reasonable treatment accorded by car the United States either knows, or will be presumed to know, its riers to the men who must employ their services. We have terms. reached a time when the absolute charge or rate imposed is I send to the desk to be printed and laid upon the table, to be not more important than the relative rates or charges imposed. hereafter offered, a substitute for sections 13, 14, and 15. The people of this country, from one end to the other, are in The amendments are as follows: continuous competition with each other, town with town, city, Strike out sections 13, 14, and 15 and substitute therefor the follow with city, man with man, corporation with corporation, and lnlf: none of them will feel that justice has been done unless they ' SEC. 13. That no corporation or joint-stock association being a com- have a fair chance in the struggle. We have been engaged . mon carrier as defined in the act to which this is an amendment shall, after the passage of this act, engaged in interstate commerce unless its now, as I said in the beginning, twenty-three years in the effort capital stock hereafter issued has been issued and the proceeds of its to do for the people of the United States that which every right bonds as herein required. No share of capital stock or certificate minded man at once agrees should be done in their beha1f. thereof, nor any share of capital or evidence thereof shall be issued unless the par value of the same, or more, has first been pa.id in cash We have come now to examine the defects-the weaknesses into the treasury of the corporation or joint-stock association therefor, of the law of 1906. I have attempted to point them out as best 3386 CONGRES&IONAlfl· RECORD-SENATE. }!ARCH 18, • I could', but I agree that the things which b.a_ve seemed to· me r~sponsibllity as- a· member of' tliis body, wouIU not' eliminate imperative in. the amendment of the. law have been almost for anything: that was· pertinent, and therefore I guarded against gotten in my fear that we are about to. lose. the ftuits of vie,.. that, pa-mitting him broad latitude in excluding whateyer in tories already won. There iB here so determined a purpose, terruption the. Senator desired' to exclude. apparently, to take a way from the people- some of the safe And I want to say this: The Senator's speech, as he has guards which they now have that I. have given most of my time deliverea it, would be an ~1:ended and an exhaustive one, but and· most of my energy to the exposition· of those parts of this it will exhaust the reader before it does the subject if the bill which I believe, if enacted into law, will carry us backward reader must read all of the interruptions which have occurred. instead of. forward. If what I. have said induces a serious I think the Senator's speech is a contribution to the literature• study or- this measure upon- the part of eTery Senator, my time ot this subject; though I do not agree with all he has said;· will not have been spent in vain. and while, more than once, I interposed to accentuate the po· I hope, I believe, you will give it the most mature· considera litical differences on tliat side' of the Chamber-a fair subject tfon. I have not examined the bill with the slightest hostility· o~ comment, as I believe-still I do not insist that even they· t,o the railway companies. I understand,. as well as any Sen shall remain in the RECORD. · ator can, that there can be no prosperity in our country unless But if there is any-objection to my request, Ur. President, it is shared. by our common carriers. I have always stood as recognizing the fact that these interruptions are a part of the firmly for ample and adequate compensation to them as I. have proceedings, I will· not press it, though I think it entirely stood against what I believe to be their unfair practices and reasonable. unjust discriminations. With the utmost good feeling toward Mr. HALE. The Senator is entirely reasonable about that, every interest, I- appeal for even-handed. justice. as he always is. r do not think we would better now in this case, and' not at' present in any other, depart from the practice Mr. HA.LE obtained the floor. of the Senate. The truth is that interruptions and questions Mr. BAILEY. Mr. President-- and suggestions· yielded for .by the Sena.tor who has the floor· The PRESIDING OFFICER. Does the Senator from· l\faine and who· is making· a speech frequently make a live part of the :tield to the Senator from Texas? speeeh. Mr. BAILEY. It is: merely to submit a request. The S-enator from Iowa is- a natural debater. I do not think. Mr. HALE: Yes. he objects to interruptions, and it really is in the control of the Air; BAII:.EY. Mr. President, in the· course of the very Senator who has· the floor. I have been impatient; so has the excellent and instructive address which the Senator: from Senator from Texas and other Senators, when a Senator is rowa [Mr. CUMMINS] has delivered· to the Senate there have making a clear-cut, deliberate, and well-considered speech, to been many- interruptions. I myself have been one of the chief see him interrupted by some Senator.to ask a question, and that" offenders. All Senators understand how desirable it is that an. Senator then goes on to make a speech, and the second Senator argument shall not be interrupted in its continuity; and I ask is interrupted by another Senator, who asks him a question; unanimous consent that the Senator from Iowa shall have the and the third Senator goes on and makes a· speech~ It does, right to elii:ninate any interruptions which may have occurred as Shakespeare says, turn awry the current of the thought and· in the course of his speech that he desireS: to eliminate. Of action. course the· Senator would not Ieave in' or omit anything which But that is tlie practice of the Senate. It is the only way, would' put- any other Sena.tor in a false attitude or represent and the interruptions appear finally, when the Senator revises him as.expressing an inconsiderate. opinion. his speech, as a part of his speeeh; and until we adopt some The PRESIDING OFFICER. Is there objection to the re rule which changes that practice, with all deference to the que t of the. Senator from Texas? Senator from Iowa, I do not think that we would better change Mr. HALE. I should be entirely willing· to leave that matter it now. I think the Senator is right in not insisting on his to the good sense and good feeling of the· Senator from Iowa, request-- but I do not know how far such a request as has been made by Mr. CUMMINS. The Senator from Maine does not under the Senator from Texas would go. Debate in the Senate, not· stand that I am insisting-on this? simply speech.making, is what brings out, as the Senator knows Ur. HALE. Not in the least. very well, the attitude of the Senate and the views of different l\fr. BAILEY. The Senator from 1i!'aine· has· st.aled his po Senators. It a Senator who has made a significant and im sition, and· I will not put him to the. necessity' of ma.Jring· an portant and r-epresentative speeeh, as the S-enator from Iowa objection. r withdraw the· request. has, should strike out of his speech all interruptions, all inter Mr. HALE. And leave the matter as- it is. rogations, and all statements made in the- course of that speech Now, let me say right here, that is a matter for Senators in by other Senators, the RECORD would not reproduce the. exact. dividually. Sometimes a Senator says "I have what f believe proceedings, and I do not think the Sena.tor himself would to be a clear line of thought, which I shall present in argument, de ire that. It· may be· ~t ~e Senator from Texas does not and I ask that I shall not be interrupted: until the close- of my mean that should. be involved in fils suggestion. remarks. I will be glad then to answer any questions." The Mr. CUIDITNS. Mr. President-:-- Senate always responds to that. On- the othe~ hand, there are The PRESIDING OFFICER. Does the Senator from l\!aine Senators familiar in debate, adroit, able, ready to answer ques·· yield to the Senator :from Iowa?· tions, who· do not seelr to avoid questions- and interruptions. r .Mr. HA.LE. Certainly. may say, myself; that-I have always felt, in taking the time of' Mr. CUl\IlfINS. I am very thankful tp the Senator from 'the Senate, that whatever I said: was likely to be enlightened Texas for the suggestion, but I do not want to eliminate from by interruptions and answers such as r am able to give. But; my speech the interruptions pertinent to the subject under dis every Senator has it in his power when· he starts in to make his· cussion. I suppose the Senator from Texas had in view one address and present his: subject to· the Senate to ask ·that he or two, or possibly three, somewhat extended speeches that be not interrupted until he closes; and the Senate always re were made after a proper yielding on my part, but which really gards such a. request. had nothing to do with the subject;:.matter under consideration, But when that is not done, Mr. President, I. tliink Ir is better although very instructive and entertaining· in themselves. to leave it as it is now. While th~ Senator's- speech, able as it Otherwise I would be very sorry. to omit from the RECORD the is, stick'ihg to his subject, covering the whole ground, will be interruptions, because my speech has been made largely upon lengthened, and perhaps undul~ lengthened; r do not think it those interruptions. and in answer to the· questions that were would be harmed in its effect upon any human mind that was propounded to me during the course or those interruptibns. : thrown in contact with it, and reads it, by any interruptions: Mr. HALE. Right on that point-- · that were. made. So I think, llr. President, we had better leave Ur. BAILEY. Will the ·senator from Maine permit m&- it·as it is-. Mr. HA.LR Ye&; that is all a matter of colloquy, of course; I rose for the purpose of saying that, as the Senator has com Mr. BAILEY. It has been so long sinc·e the Senator from pleted his most interesting speech, and as I have inquired' and Maine was not a Member' of Congress that he does' not Irp.ow find thar there is ·no Senator desimus ot going on to-morrow-; so well as some of us who have come here since lie came the I propose to move that when the Senate. adjourns· to-day it be cunfusion that exists in trying. to read a speech in the CoN:. to meet on M'onda.;y next. · GBEssroNAL REcoRD. You may be pursuing one line-·of thought, Let me say I am very desirous, and I think Senators generally an~ here comes~ an interruption that .sometimes wilr last for are,. of pushiilg: forward the. public busineys. This .bill has the ten. minute , and when the· reader- is through· reading the inter right of. way There· will be: next week one or two big· appro ruption· he has lost tl1e thread: of the discourse. What r wanted priation· bills; which. always: have the right of. way. to do, ana what- I think every Sena.tor- in this body is- entitled I want to say. to the Senator from Tex-as that one reason. I to have done, is to allow him tcr present hi& argument- iii his ha.Te in expeditingr or· trying to 1 expedite; not unduly, this mat own· way. Of course; l' assume· that· every Senator; ·upon his . ter and getting it out of the- way is that the·· Senate has to· con- 1910. CONGRESSIONAL RECORD-SENATE. 3387 front other measures. There are other important bills the Sen before half past 3 o'clock, the session of the Senate intervening ate has to face, and it can not face them while this bill is in the just when we could have been doing our most useful work. way. Mr. President, I suppose that every Senator here will bear The Senator from Idaho [Mr. HEYBURN] has an important me witness that four-fifths of our work is done in the com matter which he w~nts to bring before the Senate. The state mittee rooms and at our desks. If we are to remain in session hood bill is a measure the Senate has to confront, has to meet, four or five hours a day it simply means for those of us who and it can not come up until this bill is out of tlie way, nor can must work a task beyond human endurance. There is not a we adjourn until that is out of the way. Bearing in mind the more useful Senator in this body than the Senator from Maine, appropriation bills and other bills the Senate has to face, I and yet his committee work is such that he only comes in now am not too early in trying to expedite the public business and and then to give us the benefit of his advice about how speedily trying to push this matter forward and keep it before the we ought to dispose of some pending bill. Senate and consume upon it as many hours each day as we can. l\Ir. HALE. It is good advice. The Senator from Iowa [Mr. CUMMINS] has not trespassed 1\Ir. BAILEY. I know it is. I do not say that in any iron upon the time of the Senate. He has gone on and talked every ical way. I know the value of the Senator's service, and I day up to the point of ordinary senatorial and -human en know the constancy of his service. I venture to say that he durance, and has not in any way contributed to delay. I hope bas now come from the room of the Committee on Appropri next week we can bring this matter to a head and reach a vote ations or probably from the Committee on Naval Affairs, where on it and be ready to consider the appropriation bills, so that he has been at his work. the statehood bill and other measures will force themselves be Now, it happens that all of us can not be constantly en fore tl:}.e Senate and be acted upon before we get through. gaged in this committee work, much as we would like to be, The"PRESIDING OFFICER. The Senator from Maine moves for we must come here at 12 o'clock with an absolute knowledge that when the Senate adjourns to-day it be to meet on Monday of the fact that between 12 and half past 2 every member of next. the body at one time or another will absent himself from the Mr. CLAPP. I do not wish to address myself to that motion. sessions of the Senate for from half an hour to one hour and a Mr. HALE. Then, let the motion be put. half. l\Ir. NEWLANDS. Mr. President, before the question is put In my opinion, if we would assemble here at 2 o'clock, having I should like to ask the Senn.tor from Maine or the Senator attended to our committee work and disposed of our corre from Texas whether any progress has been made with refer spondence, and having refreshed ourselves with a modest lunch, ence to the proposition of the Senator from Texas that we we would be ready to address ourselves to the work before us; should meet at 2 o'clock instead of 12. and we would seldom witness, as we do now, more than half In this connection I wish to say that I have caused an ex the seats in the Senate unoccupied. I think when we come to amination to be made of the sessions of the Senate during the debate the matter and to examine the record it will be demon various legislative days, and I find that on an average the strated that for more than one-half of every session, if we were Senate has been in sesaion less than three hours a day upon to meet at 2 o'clock, we would dispose of all that we dispose of every legislative day during the present session. As I under now and adjourn before 5. That is a consummation, I think, stand it, there has never been in the history of the Senate such which every man will agree is devoutly to be wished. a marked lack of interest in the debates and such a partial I want to say in further response to the Senator from Maine attendance as there has been during this session. I under that I have no disposition to delay this bill. I will try to be stand that to be largely due to the fact that our committees as frank with him about this matter as I always endeavor to have been overloaded with work, that they have not had enongh be atiout all matters. I do not intend, if I can help it, to let hours outside of the legislative hours in which to transact their the Senate dispose of other matters necessary to be disposed of business-I refer to the important committees-that they have from time to time and then dispose of this bill and adjourn with been obliged to hold their sessions while the Senate is itself in the statehood bill on the calendar. I believe that the people of session, and thus we are deprived of the services on the floor of those two Territories are entitled to the inestimable privileges some of the most able and experienced Senators in this body. of self-government; and, so far as it lies in my power, I intend The pressure upon the Senate has thus far been the pressure to force, if possible, a disposition of that question at the present of committee work, and that is likely to continue for two weeks session. longer, I imagine. It seems to me that we would expedite that Mr. HALE. I hope the Senator bas not forgotten that I committee work and expedite the work of the Senate if we stated as a reason why I wanted to get the railroad bill out of would adopt the suggestion of the Senator from Texas and the way that the Senate has to con.front the statehood bill. hold our sessions from 2 until 5 or half past 5 o'clock. In con l\fr. BAILEY. But the Senate could very easily run away versation I have attempted to test in a measure the sentiment from it after confronting it. When the summer time comes we of the Senate upon that matter, and I believe that, if brought are so eager, many of us, to return to our homes that we can to a vote, it would carry. It might be more difficult to carry not be kept here after that. I ham seen that bill pending since it now than it would have been a month ago; but I find quite a I became a member of this body, and a majority of the Senate univer al sentiment in favor of enlarging the opportunity of has been ready to vote any time the roll call was ordered to committees for their work, and, in so doing, postponing the admit those two Territories, but there have been political daily meeting of the Senate to a later hour. maneuvers and there have been adT-antages sought which have Mr. HALE. In other words, the Senator is irked by the in delayed it until now. attention of the Senate during its present session. If there I will make this agreement with the Senator from Maine, so were no session, there would be no inattention. That is the far as I am concerned. If he will agree to lay this bil.I tempo logic of the Senator. You can not help this matter by shorten rarily aside and take up the statehood bill and pass it, I will ing the session. However, that is not a subject-matter of debate come here as early as he will and stay as late until the vote is now, and I suppose my motion is not debatable. taken on this bill. I have no disposition to prevent a vote. .l\fr. BAILEY. Will the Senator allow me? l\Ir. HALE. The Senator knows-he is a practical Senator l\Ir. HALE. Certainly. ! am not a member of either committee, and I do not know-- l\Ir. BAILEY. l\fr. President, I want to say in reply to the 1\fr. BAILEY. But the Senator is a member of the governing inquiry made by the Senator from Nevada that I am more to body of the Senate. . blame now than the Committee on Rules. A subcommittee has l\Ir. HALE. I can not control the management of the bill been appointed to consider and report to the fun committee. I that is now the unfinished business, neither can I make any am a member of that subcommittee, and it bas not done its agreement about the statehood bill. I am not a member of that work simply because it has had so much other w_ork to do, just committee. I do not know that the Senator is a member of it. as the Senator from Nevada has suggested. The report ought Mr. BAILEY. I am not a member either. to have been made before this, and I think it will be adopted Mr. HALE. He and I therefore can use up the time of the when it is presented for our consideration; but a glance at Senate in talking about it, but we can not make any agreement. the rules will disclose that there are a number of changes that I have indicated, and it is all that I can do, that I believe we must be made in order to conform to this principal change. have to take up.that subject, but I do not want to discuss it here For instance, the rules provide that certain things shall be done and now. at 1 o'clock; at 2 o'clock other business shall be laid before the l\Ir. BAILEY. l\Ir. President, the Senator from Maine has body. Obviously it is necessary, if we change the hour of meet been trying to arrange this other matter, and my recollection ing from 12 to 2, that those regulations shall be amended in is that he is not a .member of the Committee on Interstate Com some particulars. merce. I want to say further that not only is it true of this session, l\fr. HALE. No; but I am trying to arrange the public busi but it is true of every session of Congress, that more than one ness. half of the time ~e Senate will meet at 12 o'clock and adjourn Mr. BAILEY. This other measure is public business too. 33-88 CONGRESSIONAL RECORD-HOUSE. ]\{ARCH 18, Mr. HA.LE. No; not yet. .The following-named 1pa_yma.sters, with the .rank of lieutenant, Mr. BAILEY. Yes; it is on the calendar. to be ,Paymasters in the navy with the rank ·of lieutenant Mr. HAL.lD. But this is the unfinished ·business. commander: Mr.. BAILEY. Oh, yes. But how was it .made the unfinished Charles .R. ;()'Leary, business? B_y .a unanimous agreement. I do not ask to dis Charles W . .Eliason, place Jt. It will be temporarily Jaid aside, when the ,Senater Cuthbert J .. Cleborne, and I .finish this cnlloqn_y, .and the Senate will probably proceed John D. Robnett, to some .other business. .All I .say is that if it is temporarily George W. Pigman, jr~, laid aside .and we pass the statehood bill, I will agree .not to George W. Reeve.a, ji:., interpose .one hour'.s delay in rt.his ma.tier. 'Ray .Spear, :and Mr. CLAPP. Will the Senator pardon me? Christian J.. Peopl~s. Mr. HALE. I would be glad to nave .a vote on :my motion, PosnrA.STEBS. which Js not a l