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CHAPTER XVI
EFFECTS OF THE LAW OF 1906; JUDICIAL INTERPRETATION, 1905-'10

The first direct effect of the new law was a great increase in the volume of business of the Interstate Commerce Commission. Within two years over nine thousand appeals were made to it in one form or another for the adjustment of transportation disputes. The overwhelming majority of these complaints were settled informally out of court; and in this work of conciliation one of the most conspicuous and beneficial functions of the new commission appears. But, nevertheless, an increasing number of grievances seem to have required a formal hearing and decision of record. Some indication of the public relief sought is afforded by the fact that within approximately the first two years and a half,—up to August 28, 1908,—1053 cases on the formal docket were disposed of, leaving over five hundred issues still undecided. As compared with this total of over fifteen hundred formal complaints under the new law, the number filed under the old statute amounted to only 878 throughout the long period of eighteen years.[629] Moreover, the number of complaints filed, steadily increased for several years. The accompanying diagram well illustrates the great revival of interest which took place. The two curves show respectively the number of formal complaints by administrative years since 1892, and the total of both formal and informal ones since 1903. The sudden increase after the new law went into effect in 1906, is, of course, presaged by some accession of business during the preceding two years of public discussion. But the results for the year 1907 first fully reflect the new conditions. From 65 formal complaints and 568 informal ones filed in 1905, the numbers in each class rose within two years to 415 and 5,156, respectively. It appears, however, that the climax was soon attained. Since 1908, the number of formal complaints considerably declined; and the informal ones seemed to be about stationary in number. This was of course to be expected. The accumulated grievances of past years had been largely cared for. And the improved conditions brought about were less productive of new sources of trouble.

Delay in settlement of claims for damages by shippers has long been a great source of discontent. The Commission has grappled with this problem vigorously. The following table shows what has already been accomplished. The figures are for administrative years, as covered by the annual reports to Congress.

	Number of claims filed	Number denied	Reparation awarded
1907	561	—	$104,700
1908	3789	1486	154,703
1909	4406	1199	311,978
1910	5103	1463	404,976
1911	5653	739	329,388

Here, again, it appears as if the maximum load had been reached, so far as the Commission is concerned. Testimony of shippers is emphatic upon this point.[630] One railroad traffic manager stated that the number of overcharge claims against his line,—one of the most important in the country,—was twenty-five per cent. less in 1909 than two years earlier; and that loss and damage claims were reduced approximately one-third. A very large shipper compared his former "claims suspense account," sometimes amounting to $100,000, with $7,500 for 1909. The number of such overcharge claims was 1,008 in 1905. For nine months of 1909 it was 205. And yet these damages paid are but a trifle, as compared with the aggregate of claim settlements made by the roads directly. For the fiscal year to June 30, 1910, such settlements made to shippers directly by steam roads amounted to $21,941,232. How much of this sum was a legitimate allowance for loss or damage incurred in transit, one cannot discover. But it appears likely that an appreciable fraction served as a cover for personal discrimination. Compulsory reference to the government of all such claims would speedily determine the true facts. In the meantime it is a satisfaction to know that a competent tribunal now exists, to which appeal with a minimum of expense may be made by aggrieved shippers. Furthermore, it should also be noted in this connection, that the situation as respects claims has been benefited by a detail of the law of 1906, not heretofore mentioned. The so-called Carmack amendment provided that carriers must issue a through receipt or bill of lading, and thereby become liable for the shipment throughout its entire journey; that is to say, whether upon the initial road or a later connection. The legal principles accepted in England since 1841 are thus adopted. There is no doubt that great improvement in the relation between the roads and the shipping public may be anticipated as a result.

The great improvement in respect of standardization of rates, evidenced primarily through reduction in the number of separate tariffs issued by the railroads, has been elsewhere described[631] in connection with classification. From 193,900 separate schedules in 1906 to less than half that number five years later is a notable achievement,—so notable indeed that it merits repetition in this connection. The course of complaints, of claims and of new rates filed at Washington, affords cumulative evidence of the great improvement in conditions which the new legislation has brought about.

This activity of the Interstate Commerce Commission, it is almost needless to mention, affords no true measure of the benefits resulting from the law. Like every other sound piece of legislation, it was intended to be preventive, not punitive. The number of arrests by the police affords no indication of the effectiveness of a criminal statute. Not the violations of law, but the breaches forestalled, are of real significance. And similarly in this instance, one surely finds the primary benefit of legislation, not in the complaints preferred, but in the fact that, under the improved relationship between the principals concerned, many long-standing causes of irritation and misunderstanding are being removed. The real gain, not to be measured by figures, is to be found in the improved spirit of the intercourse now prevalent between railway officials and their customers. The shipper—especially if he be a small one—having business to transact, may now be sure of courteous treatment and a prompt and probably just outcome. In the old days he was too often made to feel his utter economic dependence. As a high traffic official recently put it: "One reason we do not like this law is because we have to stop and think twice what we are about. We must be ready to explain and show a warrant for every act. An attack of indigestion cannot any longer serve as an excuse for an arbitrary, off-hand ruling." This improved spirit has permeated the whole staff of railway officials who have seen a new light on the public aspect of their calling.[632]

The nature of the complaints before the Interstate Commerce Commission, with its amplified powers under the new law, affords the best indication of the most important feature of its work, namely the settlement of disputes between the railroads and their clients.[633] And it will be apparent that a large number of these only indirectly raise the issue of the actual freight rate. Oftentimes they concern rather the manner of conducting business. An attentive perusal of these decisions of the Commission offers interesting evidence of the range of a carrier's activities. Every little station all over the country between Aaron and Zuwash, and every conceivable commodity, from "mole-traps in crates" to "jewelers' sweepings," is comprehended. The fact that these disputes, often pecuniarily insignificant, could not be amicably adjusted by the good offices of the Commission informally, but necessitated formal hearing and decision, is the strongest possible proof that some competent tribunal of this sort was greatly needed in the interest of industrial peace.

One of the commonest petty complaints is of misrouting of freight. Goods are carried by a roundabout way, or by one not enjoying the lowest through rate. Thus, to be specific, in 1908 six carloads of print-paper were shipped from Little Falls, Minnesota, to Boise, Idaho.[634] Three routes were open, the rates being respectively $1.30, $1.36, and $2.17 per hundred pounds. The Northern Pacific road, in absence of instructions, sent the goods by the third route,—presumably the one most profitable to itself,—the result being a freight rate $1,760.62 greater than it otherwise might have been. Reparation to this amount was granted within three months by order of the Commission.

Another frequent difficulty concerns the supply of suitable cars for the needs of the shipper. Carload rates are always proportionately lower than charges for package shipment.[635] The carriers very properly prescribe a certain minimum lading as a requisite for the grant of these proportionately lower wholesale rates. The shipper at carload rates must, however, pay for the full capacity of the car, whether his shipment fills it or not. No exception can be taken to this practice, unless the carrier is unable or unwilling to supply cars of a suitable size. This sometimes happens. For instance, in 1908 a lumber-man in Oregon, having a shipment of 39,500 pounds to make to a point in Pennsylvania, requested of the Southern Pacific a car of 40,000 pounds capacity.[636] Not having one at hand, a much larger car was furnished, having a minimum capacity of 60,000 pounds. Following the standing rule as to carload rates, the shipper was compelled to pay sixty-two and one-half cents per hundred pounds on the marked capacity of the car, that is to say, on 20,000 pounds more freight than he actually shipped. This made a difference of $128.12 in the freight bill—nearly fifty per cent. in excess of the charge based upon the actual shipment. The Commission issued its order for reparation within five weeks of the filing of the complaint.

A flagrant case of the misapplication of similar rules was recently decided.[637] A retail druggist at Douglas, North Dakota, bought a sheet of plate glass eight feet square at St. Paul for forty-six dollars. Usually such large sheets have to lie flat on the car floor; and, occupying so much space, are properly assessed at a minimum weight of five thousand pounds, regardless of the actual lading. But in this instance the glass was carried upright, screwed to the end of the car, along with a lot of miscellaneous freight. Applying the standard rule made the freight bill for a distance of 587 miles, $9.50 more than the entire cost of the glass at St. Paul. It appears strange that the carrier should have permitted so clear a case to come to a formal hearing at all. Presumably it contested it as much for the protection of its standard rules as for the sake of the actual revenue involved. No exception can be taken to these shipping rules as a whole; but these cases make it evident that their application may be at times too harsh and rigid. The tribunal established by the new law performs a much-needed service to the community in tempering their application in exceptional instances.

Attempts at arbitrary exclusion from participation in through shipments, in order to stifle competition, not infrequently crop out in these decisions. In 1905 the Enterprise line, capitalized at four hundred thousand dollars, put three steamers into commission from Fall River to New York.[638] This independent line was of the utmost importance to the cotton manufacturers, as it was expected that at New York connection could be made with competing rail and water lines to every part of the United States. But all these lines, presumably at the behest of the New York, New Haven and Hartford Railroad, which had hitherto enjoyed a monopoly of the business and which, with its enormous tonnage of high-grade freight to be parcelled out among connecting lines at New York, was a formidable factor, promptly declined to join in making any through rates. All their local rates from New York on, were, of course, prohibitory. In one instance, while the through rate accorded to the shipper over the New Haven road was sixteen and five-eighths cents per hundredweight from New York on, the patron of the Enterprise line was charged twenty-five and one-half cents for the same service.

This case recalls a similar one in 1897, when the independent Miami line of steamers from New York tried to break the monopoly held by the steamship lines owned by the railroads out of Galveston, Texas. The roads not only refused to pro-rate, but actually demanded prepayment of freights from Galveston on, as local rates. The Federal courts tinkered with the subject for a while, until the Circuit Court of Appeals, while recognizing a probable violation of law, affirmed that suit could be legally instituted only by the United States.[639] Meantime, of course, the company was forced out of that business; and rates have steadily risen ever since. In this later instance of the Enterprise line, the Commission promptly ordered an extension of the same privileges to the independent line that were enjoyed by its powerful rival.[640]

The frequency of complaints as to the supply of equipment needed for the regular operation of mills or mines, has already been noted. There may be enough cars; but they may be supplied too irregularly.[641] And petitions for the issuance of through rates or the opening of new routes became so common that a substantial amplification of the law in 1910, as we shall see, was effected in this regard. The carriers, of course, always prefer in case of a choice of routes, to take the longest possible haul over their own lines. This operates to close the more direct way. The northern transcontinental lines got more revenue from traffic which went east over their lines a thousand miles by way of Spokane, than when it was turned over to a rival line at Portland, Oregon, after a haul by them of only one hundred and fifty miles.[642] Even in 1907, at the time of extreme congestion of the Northern Pacific main line, when it was literally overwhelmed with business, the lumbermen complained that they could find no relief by these other routes.[643] Much the same question was raised in another way in 1909, by a complaint from growers and shippers of grain against the rate adjustment which forced or attracted Kansas grain to the Kansas City market, instead of permitting it to move on lower rates directly from the point of origin to the Gulf ports for export, and to Texas milling and consuming points.[644] In this instance, however, the shippers failed to make out a good case; so that the complaint was dismissed.

No grievance is too petty to receive consideration. A peachcanner in Martinsdale, Georgia, is awarded reparation of $8.91 on a shipment of three cars of his wares.[645] The sum of $11.84 is awarded to a complainant for an overcharge on eleven rolls of old worn-out canvas, assessed for freight rates as cotton goods instead of junk, which it properly was.[646] Or in another case, where a small boiler was shipped from Kalamazoo to Blue Mounds, Michigan, on a combination of local rates, when it was properly entitled to a joint through rate, an award of $6.87 to the shipper followed.[647] It makes no difference whether the welfare of a great territory or the smallest dealer is concerned. It is all one to the government. The Hope Cotton Seed Oil Company[648] in the South, shipped seventeen carloads of one season's product in 1907 out over a certain road, on a low through rate. The railroad agent was then informed that these shipments interfered with the policy of establishing new industries of this sort on another line; and the through rate was cancelled. This jumped the charges from seventeen and one-half cents per hundredweight to sixty-seven cents,—almost the entire worth of the cotton-seed. Since the new law went into effect, the Commission has prescribed a new rate of thirty cents; and industrial peace is the result.

Thus has the work of this tribunal gone on, with its daily grist of opinions on almost every conceivable phase of the transportation business. It might be to prescribe that, even though inflammable, small-lot shipments of petroleum must be accepted by a carrier at least twice every week, instead of on only one day; that structural iron might be stopped off en route at Indianapolis,[649] as it is at Chicago and St. Louis, to be sheared, fitted and punched, without losing the benefit of a low through rate, just as cotton is halted at the compressor, or grain is milled in transit; that a definite rate must be quoted on jewelers' sweepings,[650]—the dirt and waste laden with particles of gold destined to the smelter,—even though it expose the carrier to the risk of exorbitant claims for damage in case of accident; that the railroad was properly entitled to charge storage after six months on brewer's rice left on a wharf pending piecemeal shipment to purchasers;[651] or that two different rates were contemporaneously charged on nitrate of soda, according to whether it was to be used in the manufacture of fertilizer or gunpowder.[652] But whatever the issue, one has the satisfying conviction, after reading the pros and cons in the decisions, not only that the matter has been settled by a disinterested and supposedly impartial third party, but that the decision is endowed with the beneficent force of public authority. As one reads these decisions, there is no evidence of political log-rolling, or of legal quibbling. They go straight to the point on the economic and common-sense issues involved. It is gratifying, moreover, to note occasionally that the dispute has already been informally settled before the Commission has time to render its opinion.

By no means are all these decisions in favor of the shipper. In fact, during the first fourteen months, only forty-six out of one hundred and seven formal cases were thus settled. The railroads enjoy no monopoly of unfair practices. Indeed, many of the rules, the exceptional application of which works hardship, were originally provided to meet some attempt at fraud by shippers. They might be under-classifying; seeking free storage on wheels pending sale of their goods; claiming exorbitant damages; or perpetrating any one of a thousand petty meannesses to which human nature is liable. One or two instances of shippers' complaints set aside as unreasonable may not be out of place.

The Topeka banana dealers in 1908 complained that bananas en route from New Orleans were subject to an appreciable shrinkage in weight, amounting to about six hundred pounds per car.[653] Inasmuch as about fourteen thousand cars were being moved annually, it is clear that the aggregate loss of weight was considerable. The practice had been to weigh the bananas when transferred from the steamers at New Orleans to the cars, and to levy the freight rate upon this weight. To this the dealers objected, instancing among other things the practice, long prevalent in the cattle business where a similar loss of weight in transit occurs, of charging according to the weight of the shipments, not at the initial point, but at the point of delivery. At first sight the complaint appears to be well founded. Surely one should not be compelled to pay freight on a greater lading than is carried. But the Commission on examination decided in favor of the roads. It was shown that the service was most exceptional as to the shipment, handling and speed; and it was held that the charges were on the whole reasonable and just.

One of the most important issues in which the railroads have won their contention concerned the loading of lumber on flat cars.[654] For half a century the practice has been that the shipper should provide his own lumber-stakes and pay freight on them as on the lumber itself. In 1905 the National Lumbermen's Association tried to change all this, and to impose upon the carriers the legal duty of securing the loads in place as they do with many other commodities. The carriers offered a compromise, agreeing to allow five hundred pounds per car free for the weight of the stakes; but refused to accept responsibility for safely stowing the goods. The Commission, finally, after prolonged inquiry by experts, relieved the carriers of this care and expense.

It is undeniable also that the carriers have found solace in certain unforeseen ways under the amended law. The rigid prohibition of all favors and rebates has substantially raised the general level of charges, so general was the practice of cutting rates a few years ago. To be sure, this increase has affected principally the large shippers, thus tending to equalize opportunity between all grades of competitors. But over and above this, the prohibition of any act tainted with favoritism has enabled the carriers successfully to withstand many leakages of revenue. Claims for damages can be plausibly denied on the ground that their settlement might arouse suspicion, and possibly lead to prosecution for the grant of individual favors. Many roads have also actually augmented their revenues by this same line of argument. The custom of charging a merely nominal rental of one dollar for freight-sheds, other buildings or land used for side-tracks or elevators, was formerly general. It would have been awkward to place these contracts on a strictly commercial basis, especially where the tenants were shippers with the option of resorting to a rival line. But on the plea that a continuance of these nominal rentals might be considered a criminal act of favoritism, substantial increases of revenue have been obtained. On one road alone over three thousand of these nominal rentals have been raised to strictly commercial figures. The aggregate increase of revenue from this source has been by no means inconsiderable.

A very important group of cases brought before the Interstate Commerce Commission under the new law concerned the reasonableness of the various freight-rate advances which were occurring all along the line.[655] This raised a question as to the absolute fairness of the new rates as against the interest of the general public. One conclusion is certain. The new law did not prevent the carriers from persisting in a policy, adopted nearly ten years earlier, after a generation of steadily declining rates, of quite generally putting up their charges. Unfortunately, the law of 1906 was defective in making no provision for dealing adequately with such cases. The Interstate Commerce Commission was limited in its scope to the consideration only of specific complaints. It could not on its own initiative pass upon the reasonableness of an entire new schedule of rates in advance of its taking effect. It must take the matter up, if at all, bit by bit, as individual shippers chanced to complain, after the rates have become operative. This abridgment of its power to pass upon the reasonableness of tariffs as a whole was effected in the Senate. It was not contemplated either by President Roosevelt or by the House of Representatives. The result, as predicted, was that little protection was afforded to the public in any large way. Judging by results, the railroads were as free as they ever were, to increase their tariffs whenever they saw fit so to do.

The imperative need of amending the law, and of granting power to suspend such rate advances, not merely in particular cases on complaint, but as to entire schedules of rates prior to their taking effect, was in fact met by the next set of amendments in 1910. The experience of the intervening years amply proved the need of some such amendment.

The extent of the changes after the new law went into effect may be indicated by a few typical instances. Few commodities are of greater importance to the United States than chemical fertilizers, used in enormous quantities all over the country. The basis of these is phosphate rock. The freight rate on this from Tennessee to Chicago in 1907 was $3.40 per ton. It was increased to $3.95, until the Commission ordered its reduction to the old figure.[656] At the same time the Oregon lumbermen had their rates to the East increased about one quarter, after a period of quiescence of six years. From the Willamette valley to San Francisco—a test case soon to run a long course before the courts[657]—lumber rates were $3.10. In 1907 they were put up to five dollars. The Commission held that $3.40 was an adequate rate. The last general increase had occurred in January, 1909, particularly in transcontinental rates, where the fruit of the Harriman monopoly made itself felt. Not unduly great in the East, considering the increased cost of operation,—twenty-five cents per ton on pig iron and iron pipe, for instance,—the Pacific Coast rates from New York rose often as high as fifty per cent. The rate on dry goods went up by one-third. Therein lay a part of the motive power for Union Pacific speculative finance.[658] Among the most persistently contested schedules was that concerning rates from the southwestern cattle ranges to the markets of the Middle West.[659] In 1897 the rate on steers was twenty-seven cents per hundredweight. Step by step it went up to the level of thirty-six and one-half cents in 1903,—a rise of more than one-third within six years.

Occasionally one strikes an exorbitant rise in the East, however, as in one instance where on imported iron pyrites used in making sulphuric acid, the rate, which in 1903 was $1.56, became $2.72 four years later.[660] And the hardship often lay in the fact that these increases were most marked in the case of the small shipper,—the very one who, in these days of large enterprises, we can least afford to spare. The rate on cotton goods from the South to the Pacific Coast rose only fifteen per cent, between 1896 and 1907 by the carload; for smaller lots it rose sixty-five per cent.[661] In 1907, 38,000,000 pounds of cheese were produced in southwestern Wisconsin. The shipper to Chicago by carload paid only about ten per cent, more in 1907 than eight years earlier; but the shipper in smaller lots was compelled to pay forty per cent. more.[662] As always, the change was along the line of least resistance. Such a policy made for larger dividends; but did it tend to the perpetuation of equality of opportunity as between great and small concerns? That was a social question of the very first importance, which had much to do with the demand for still further increase of the regulative power of the Federal government in 1910.

Under the new powers conferred by law, it was now possible to investigate scientifically many matters which heretofore had been privately governed by rule of thumb. For instance the reasonableness of the charges for refrigeration in the movement of citrus fruit is dependent in practice upon the methods employed in gathering and packing them for market.[663] Was it better business practice to ship oranges and lemons in ice-cooled refrigerator cars, or was it better to adopt the so-called pre-cooling process, combined with great care in handling? The former was the long-standing practice of the fruit-growers, while the latter, substantially supported by the investment of more than a million dollars in plant, was advocated by the carriers. One had been tested in practice, the other was yet in the experimental stage. But aside from rivalry of method, were not the shippers entitled to pre-cool or refrigerate their fruit privately if they so desired? The determination of this question meant an elaborate investigation with careful records in detail as to the results obtained in either case. The decision upheld the carriers in their charges for the older methods of treatment; but pre-cooling charges had to be reduced by seventy-five per cent. It appears, therefore, that authority to deal with one of the most serious grievances voiced before the Elkins Committee in 1905, may now be fairly and scientifically exercised for the public benefit.

A similar technical investigation concerned the methods of transporting the products of "creameries."[664] Shall dairy products be centralized at favored points, possessed of a sufficient supply from the surrounding territory to permit of large-scale manufacture; or shall the older local creamery method prevail, whereby the product is taken directly from country stations to the great centres of consumption like Chicago? The particular rate adjustment makes all the difference between creameries scattered throughout the countryside or, on the other hand, located in the great cities. One of the prime difficulties is in the sparsity and uneven distribution of the cow population. Here was an order requiring a very careful investigation of the entire business, followed by a nice judgment as to the economic merits of the case. The history and development of the dairy business in the West had to be thoroughly looked into. Quite irrespective of the resulting order, it is apparent that the public is certain to benefit from an exhaustive inquiry. Yet other general investigations of the same sort might be cited to the same end. The wool business was examined thoroughly in 1911.[665] The entire New England rate system as well as the conditions of operation were overhauled in the following year, and a general inquiry into the hard coal situation is just now under way. A general improvement of conditions is bound to flow from the free exercise of such general powers.

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The leading Supreme Court decision construing the Hepburn law,—and, constitutionally, one of the most important in recent years,—was rendered in 1910 with reference to the relation between the exercise of power over transportation by the Interstate Commerce Commission and the right of review of such action by the courts.[666] The details of the controversy are indicative of the nicety of economic adjustment required in such cases. There was a shortage of equipment for the carriage of soft coal on the lines of the Illinois Central Railroad. This commodity, practically speaking; cannot be stored. It must be disposed of at once, so that the available supply of cars determines the output of each mine. If, in this case, all the cars had belonged to the Illinois Central Railroad to be used indiscriminately by the mine owners, it would have been a simple matter to have allotted the equipment among all the operators along its lines upon the basis of the established capacity of each. Unfortunately, diversity of ownership of these cars had brought about, all over the country, special rules for effecting the allotments. Some cars belonged to the railroad; others to the mine company, to other private parties, or to foreign railways. Certain railroads first deducted all fuel carried by other equipment than their own from the estimated capacity of each mine, and then divided up their own available cars pro rata among all the mines according to the net capacity thus fixed. Others allotted their cars according to the gross mine capacity, taking no account of the private or outside equipment which any particular coal mine possessed or might obtain. This second practice evidently favored the larger concerns, supplied with abundant capital for investment in cars or for renting equipment. For, in addition to their own cars, they could still demand as many more from the railroad on daily allotment as if they were entirely dependent upon it for the movement of all their coal. Which was the fairer practice? A nice economic question was thus raised. Has a shipper the right to exclusive use of all his own fuel cars, and, in addition thereto, a full share of the system cars of the railroad? Disputes of this sort have been before the Commission and the courts for years.

In this Illinois Central case, a colliery company complained of even a more minute detail of the rule employed by the railroad in making its daily allotment, affirming it to be discriminatory in effect. There was a shortage of cars and of coal. The railroad was employing many of its own cars in the special service of carrying fuel for its own use. The particular grievance was its insistence upon treating these special Illinois Central cars, for the purposes of allotment, as if they were merely ordinary private cars; that is to say, by supplying them in practice regardless of and outside of the daily allotment, otherwise agreed upon. It thus appears that the economic issue was highly technical in character. Similar complaints had been already variously decided by other tribunals. The Commission, moreover, was bound to consider this complaint with several others of a like sort. Exercising its best business judgment under all the circumstances, it decided against the practice, ordering the Illinois Central, under the powers conferred by the new law of 1906, to include all cars, however owned or for whatever purpose used, in figuring its daily allotments in time of shortage of equipment. The case went to the Supreme Court upon petition of the railroad to set aside the order of the Commission.

By contrast with the economic intricacy of this case, the fundamental legal question was simple. How broad was the right of review of the Commission's order, as conferred by the amendments adopted in 1906? Were the courts to rest content merely to pass upon the regularity and lawfulness of the forms of procedure adopted by the Commission, or might they go further, and, hearing all the evidence as to fact, proceed to settle the economic controversy as well as the law points, in entire independence of the Commission? In the former case administrative control would result. In the latter, regulative power would really reside in the judicial branch of the government. It was the same old controversy which by adoption of the second alternative had practically emasculated the law of 1887, and had necessitated its amplification by amendment in 1906.[667] A momentous issue was presented. To go forward would make for logical definition and separation of the powers of the Federal government; to retreat would be to precipitate anew the inevitable conflict in Congress, from which, it was hoped, we had emerged for good!

The importance of the Illinois Central decision is such that the conclusion should be stated by direct quotation, with our italics as to the main point.

On this cogent reasoning the Supreme Court, therefore, quite independently of its opinion upon the economic merits, declined to permit interference with the order of the Commission.

Immediately following the Illinois Central decision another was rendered concerning somewhat the same economic issue, namely methods of supplying coal cars on the Baltimore and Ohio.[669] The following quotation is significant of what promises to be the line of reasoning in future.