It is difficult to enforce the law against discrimination, because of the strong interests that call for it, the secrecy of many of its forms, the reluctance of shippers to make complaints for fear of persecution, and the resistance offered by railway officers to efforts to get at the facts, leaving the country during an investigation, refusing to answer truthfully on the witness stand, burning books and papers that might reveal the facts to courts or other investigating bodies or enable the officers to refresh their memories so as to be able to answer questions.

Often there are no records of the concessions granted favored shippers except the memoranda in the personal note-books of the traffic managers. Rebates or commissions are frequently paid by messenger boys sent from the general freight office, or treasurer’s office, with the currency and a slip of paper with some pencil marks on it, instead of sending a check and obtaining a voucher.^[354] The officers forget about the transaction as soon as possible,—sooner than possible it seems sometimes,—or in some other way try to prevent the Commission from getting the facts with sufficient detail to bring suits. For example, in the “Dressed-meat” Hearing at Kansas City, March 21, 1901, fifteen transportation men were subpœnaed and examined without securing any important facts. The witnesses, who occupied positions which would naturally lead one to suppose they would know all about the matters in hand, manifested the most persistent and remarkable ignorance, and the Commission had to go to Chicago and try again before it got any light on the packing-house transportation question.

In March, 1898, the Interstate Commission investigated rebates on flour from St. Paul, Minneapolis, and Duluth to Atlantic seaports. The Commission had information of wide departures from the published tariff. It says: “The inquiry was greatly hampered by the disappearance of material witnesses before subpœnas for their attendance could be served, the inability of several who did testify to recall transactions there of recent date, and the evident reluctance of others to disclose any information bearing on the subject involved. All of the railway witnesses denied knowledge of any violation of the statute, and most of the accounting officers testified to the effect that if rebates had been paid they would necessarily know about them, and that their accounts did not show any such payments. It was nevertheless fully established by the investigation that secret concessions had been generally granted on this traffic, and that the carriers had allowed larger rebates to some shippers than to others.”^[355]

After the St. Paul investigation in 1898 the Commission entered on an investigation at Portland, Ore., in respect to rates between the coast and points on and east of the Missouri River. “It was established by the proof that secret rates generally prevailed at Portland and common points, and that transportation was, in effect, sold to the lowest bidder. The lawful rates were ignored, except as they might serve as a standard in making agreements for lower charges.... Some of the merchants conformed to the law, but in so doing they were at a disadvantage in competing with those who disregarded the statute; and in many instances this disadvantage represented more than a fair profit upon the commodities involved. Most of the merchants who admitted that they had thus violated the law declared themselves unable to remember who paid them the rebates, or when or upon what shipments any illegal rate concessions had been made. Some testified that they had kept account of the unlawful transactions, but that when they heard of this investigation they destroyed their memoranda in order to defeat prosecutions on account of their illegal acts. They insisted that without these data they could give no specific testimony concerning any of the transactions.”^[356]

The Commission found in these and other investigations that “unlawful rebates have been and are being paid by a great number of carriers,” but they could not get the specific evidence necessary for prosecutions.^[357]

In its Report for 1904, p. 104, the Commission says: “Railroad officials often seem to think that it is their duty to withhold facts, on account of some real or supposed liability to make disclosures that will impair the railroad’s rights or interests in future judicial proceedings. Some companies seem to have adopted a settled policy to give the least possible information, at all times, on any and all subjects.”

Discussing the continuance of the payment of rebates and the reasons the Interstate Commission has not been able to stop the practice, Commissioner Prouty says:^[358] “When I first came onto the Interstate Commerce Commission (1897), I used to see continually in the newspapers statements like these: ‘Rates sadly demoralized,’ ‘agreement between railroad officers to restore rates,’ and everything of that sort. I said to my associates, ‘Gentlemen, this thing will not do; we must stop the payment of rebates.’ They said, ‘How are you going to stop the payment of the rebates?’ I said, ‘We are going to call these gentlemen before us; we are going to put them under oath, and we are going to make them admit they paid these rebates, and we are going to use the evidence which we obtain to convict them.’ We employed Mr. Day, who is now with the Department of Justice. The rates which have been almost uniformly demoralized have been the grain rates from Chicago to the Atlantic seaboard. We called in the chief traffic officials of all these lines and we put them under oath. Now, I would ask these gentlemen, ‘Are you the chief traffic official of this road?’ ‘I am.’ ‘Would you know it if a rebate was paid?’ ‘I would.’ ‘Are any rebates paid on your road?’ ‘There are none.’ ‘The rates are absolutely maintained?’ ‘They are.’

“Well, every traffic official who came before us in that capacity—and we prosecuted it for three days at Chicago—testified that rates were absolutely maintained.”

“Senator Newlands. How many did you have before you?

“Mr. Prouty. We had the official of every trunk line leading from Chicago to New York. They all testified the rates were absolutely maintained from Chicago to New York. Two years after that I examined the chief traffic officer of the Baltimore and Ohio, and of the New York Central—do not think it was the same man in either case—and of the other lines, and they all testified that rates had never been maintained. I would like to know what I could do as Interstate Commerce Commissioner to make those gentlemen admit that they paid rebates, and as they would not tell that they paid rebates, I would be glad to know how I could obtain evidence that they did.

“Having gotten through, Senator, with the lines between Chicago and New York, we said perhaps this is not a fair sample. Now, we will go up in the Northwest, and we will take the lines that carry flour from Minneapolis east. We instituted another investigation, and we put the railroad and the traffic men of the millers on the stand, and they all swore without exception that the rates were absolutely maintained. One traffic official there, when it got a little bit too hot for him, became sick enough so that he threw up his dinner, but he did not throw up the truth. We could not get the admission from any man there that they had ever paid a rebate. We said, ‘This does for the East; now let us go West.’ So we went into the Pacific Coast, to Portland, Oregon, and went over exactly the same performance there. We made one man admit that he burned up his books rather than present them to the Commission, but we could obtain no admission of the payment of any rebate there.”

But the St. Louis Southwestern Traffic Committee or Traffic Association employed a young man by the name of Camden and instructed him to lay before the Interstate Commission any evidence he got of the payment of rebates. “He had not been there more than two or three weeks before he found some evidence to the effect that the Baltimore and Ohio Railroad had been departing from the published rate, and he came up to Washington and laid that evidence before the Interstate Commerce Commission, and we began proceedings against the Baltimore and Ohio Railroad. That was the first instance from the time I came onto the Commission that we could obtain any evidence of a departure from the published rate. We directed the Baltimore and Ohio road to file a statement showing what shipments they had made during a certain time, and the rate of freight paid them for the transportation. Thereupon they filed a statement showing a great many departures from the published rate. At the same time they sent to the Interstate Commerce Commission a letter. They said in that letter in substance, that the roads in the territory in which they operated had habitually departed from the published rate; that was after they had sworn they maintained the published rate in that territory: ‘Now, for us, the receivers of the Baltimore and Ohio, we have gotten through, but we cannot maintain the rate unless our competitors maintain the rate. We propose from this time on to maintain the rate ourselves, and we propose to see that they maintain it; but in order that we may do that, we ask you to call a conference of the railroad presidents in trunk-line territory.’

“Now the Commission did, acting on that suggestion, invite every president of the trunk-line railroads to come to Washington. They came, all of them. Mr. Calloway was there for the New York Central; Mr. Thompson was there for the Pennsylvania Railroad; Mr. Murray and Mr. Cowan came there for the Baltimore and Ohio; Mr. Harris came from the Philadelphia and Reading, and Mr. Walters was there for the Lehigh Valley. I do not remember them all, but they all came there. Those gentlemen all said: ‘It is true; we have departed from the published rate. We did not like to do it, but we did. But we have gotten through. We shall depart from the published rate no more. If you gentlemen will only let bygones be bygones, we assure you that in the future there will be no discrimination under this law.’

“Well, I expect, perhaps, that we ought to have said to them, ‘You are a pack of consummate liars; we do not believe anything you say, and we will prosecute you if we can. But we did not think so; we believed exactly what they said, and we told them we did, and they went home, and no prosecutions were begun on the facts which we had against the Baltimore and Ohio. Then we called, at the request of certain persons in the West, the presidents of all those lines, and they all came. Mr. Marvin Hughitt came; Mr. Bird, of the Milwaukee line, came; in all, 30 or 40; and we had the same sort of an experience meeting again. They all said: ‘We have sinned, but we have got through. Now, gentlemen, just help us to maintain the Act to regulate commerce.’ We said: ‘We will do it.’ And they went home.

“Now, I do not wish to pass any criticism at all on these gentlemen. I have not the slightest doubt that they meant precisely what they said. I think I know something about the difficulties under which they labored; but they did not maintain those rates for a month, probably.... There has not been a time since I have been an Interstate Commerce Commissioner, when, if the traffic officers of the trunk lines between Chicago and the Atlantic seaboard would have consented to tell the truth under oath, the Interstate Commerce Commission would not have stopped the payment of rebates. I have been able to discover no way in which to make them tell the truth.”

“Senator Newlands. In regard to the future, will it not be possible for them to commence again this system of rebates?

“Mr. Prouty. I think they pay rebates now.

“Senator Newlands. You think they do?

“Mr. Prouty. I think they do.”

Victor Morawetz, Chairman of the Executive Committee of the Santa Fe, was asked if it would not be wise to require the traffic manager of each railroad, the auditor, and the president, to report every three months on all existing contracts, and that there had been no violations of law, no abuses, so far as they knew, and that they had made diligent inquiry to ascertain if there had been. Morawetz replied that if such a law were passed some men would perjure themselves every three months, and others who were thoroughly honest would simply not take office.^[359]

Not all the railway officers refuse to tell the truth. There is every reason to believe that Paul Morton and Mr. Biddle of the Santa Fe, for example, spoke the truth in their testimony before the Commission. But the evidence seems to be that the habit of truth telling is not very prevalent. And when the railroad officers determine to prevent publicity either by falsehood or by silence they take care to eliminate documentary evidence that might be used to checkmate them. They destroy their records so that they will be less liable to know anything about the rebates they have paid, and to make it as hard as possible for the Interstate Commerce Commission to get at the facts.

The Commission is examining Mr. McCabe, freight traffic manager of the Pennsylvania lines west of Pittsburg.

“Commissioner Clements. Are you in the habit of destroying records not a year old?

“Mr. McCabe. Sometimes.

“Commissioner Clements. But generally?

“Mr. McCabe. If they are not essential or it is not important that they should be kept.

“Commissioner Clements. What would be the particular reason for destroying these papers and records?

“Mr. McCabe. Possibly because we thought you might want them laid before you sometime.

“Commissioner Clements. You destroyed the evidence of the illegal transaction?

“Mr. McCabe. Yes, sir, that is right.”^[360]

The general traffic manager of the Michigan Central said that papers relating to refunds, etc., “were destroyed because their usefulness for our purposes had gone and passed.”

“Commissioner Clements. Do you destroy your other papers as recent as these?

“Mr. Mitchell. Not as a rule, sir.

“Commissioner Clements. Well, I will ask you again if you destroy these papers in order to destroy the evidence of the transactions to which they relate?

“Mr. Mitchell. Certainly we should dislike very much to have those papers exposed to the general public.

“Commissioner Clements. Why?

“Mr. Mitchell. It would be an unwise thing from a railroad standpoint to have such matters going about.

“Commissioner Clements. Why would it be unwise to disclose the method of procedure?

“Mr. Mitchell. Well, on account of the Interstate Law.

“Commissioner Clements. Because it violates the law, yes. That is what you really mean, is it not?

“Mr. Mitchell. I suppose that is it, sir.”^[361]

The Rock Island freight traffic manager also testified to the destruction of papers showing rebates or concessions.

“Commissioner Clements. Why are they destroyed?

“Mr. Johnson. Simply for the purpose of destroying any evidence there may be.

“Commissioner Clements. All the papers you know about or entries that you are familiar with are destroyed?

“Mr. Johnson. I understand they are all destroyed.

“Commissioner Clements. Have you any recent ones?

“Mr. Johnson. I do not think they are more than thirty days old.

“Commissioner Clements. You think that all up to within thirty days are destroyed?

“Mr. Johnson. That is the rule or custom.”^[362]

The shippers who receive rebates, etc., adopt similar measures to keep their modest affairs from the public. In April, 1904, the newspapers reported that the Interstate Commerce Commission was going to Boston to investigate rebates and private car-line abuses. The office force of the Armour office at Boston was immediately set to work packing into barrels all letters and records that might show a combination or understanding among the houses or with the railroads, or other inconvenient matters, and all these dangerous documents were incontinently fed to the furnaces.

On the other hand, shippers who are not of the favored class are afraid to complain for fear of persecution by delay of freight, overcharges, prolonged litigation of every difference or dispute, and probable intensification in some form of the discrimination in favor of their competitors. The Oregon Commission says: “The shipper preferred to tamely submit to the injustice put upon him through discriminations against him or unreasonable and extortionate charges and exactions for transportation facilities, than to hazard the utter ruin of his business by provoking the animosities of managers if he carried his grievances into the courts in order to have his rights determined and enforced.... Besides, if the shipper went to court with his grievances he was confronted by powerful and wealthy corporations who contested, with the aid of the ablest counsel money could procure, every inch of the ground in the controversy, thus making each contest between the individual shipper and these corporations an unequal one in proportion to the ability of the shipper personally to press his case as compared with the financial ability of the corporations.”^[363] In a large majority of cases the loss sustained by the individual through favoritism or extortion is less than the probable injury resulting from litigation with powerful corporations employing the ablest counsel, contesting every inch of ground, defeating or delaying redress by every possible means, and squeezing the plaintiff meanwhile perhaps with a grip upon his business that means death to his prosperity, so that the shipper thinks it better to bear the ills he has than fly to others to which he has not been introduced.