3338 CONGRESS!ONAL RECORD-SENATE.

·SENATE. · . merchant marine of the 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 , 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 of infantry in the Mr. PAGE. I withdraw the objection, Mr. President. , 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, . 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. ; 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 , 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 tt: Interstate Commei.·ce Comm.issibn 23~ !909-,. argued and su!Jmitt-e, motion to- advance granted; set- fur- argument- .A:pril 4, 1910. COM.'MISSIDX NO 1294'.. COMMISSION NO. 1040. ibiitcil Sta.tas cin;uit· aou.rt,. n-ort.her-n distti:ot f{)f Illinois-, at OTlJ.cagOJ. United, Stat~s ctrcuit court, northern.. dis-t1·i-0t at flliilwis,. eastern aiv

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, Unite