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not; for the remaining language of the paragraph says most emphatically: “ but this shall not be construed as authorizing any common carrier within the terms of this Act to charge or receive as great compensation for a shorter as for a longer distance.” And this subsequent language seems to wipe out the preceding qualification altogether. If this view be correct, the remedy of the carrier is to apply to the Inter-State Commerce Commission for a suspension of the prohibition. But, as we have said, the language is faulty, ambiguous, and perhaps so confused as to be incapable of interpretation.
V. But assuming that the clause of this section (which contains the words, “but this shall not be construed as authorizing any carrier
to charge as great compensation for a shorter, as for a longer distance”) does not destroy the qualification, and this is the view adopted by all of the advocates of the Act, as is seen in the notes herewith,' the question occurs as to
* Remarks of Hon. Shelby M. Cullom in the Senate of the United States, on the tenth day of January, 1887.
Mr. Cullom addressed the Senate in favor of the conference report, confining his remarks principally to the fourth section as to the long and short haul. The bill, he said, had stood remarkably well the test of the general and particular scrutiny to which it had been
the meaning of the words “under substantially similar circumstances and conditions, over the same line, in the same direction, the
subjected. Its general provisions had, for the most part, met with approval, while the feature most strongly objected to (the fourth section) was misunderstood if not misrepresented. He said : “ The objection made to this section as it now stands, which, if it were well founded, I should regard as the most serious, is that it is indefinite and ambiguous, that it is open to more than one construction. Of course, we cannot undertake to say positively what construction will be put upon the language used by the courts if they shall be called upon to determine the meaning of the section. It seems to me, however, that but one construction can be reasonably and properly placed upon this section, especially when it is considered, as it must be, in connection with the other provisions of the bill, and that its meaning is perfectly clear. But in view of the erroneous construction that seems to have been put upon this section in some quarters, I deem it proper to state that there seems to be no difference of opinion as to its meaning among the conferrees on the part of the Senate.
I think the Senator: from Connecticut (Mr. Platt) and the Senator from Tennessee (Mr. Harris) understand the section as I do, and I think I am justified in saying that we would not approve it if we supposed or believed it to mean what some complain that it does mean or may be made to mean. The short-haul section simply undertakes to lay down in specific terms a rule or principle which, as I have always contended, is already in effect contained in other provisions of the bill. The first requirement of the bill on the subject of rates is found in the first section, and is that all rates shall be reasonable and just.'. This is in effect a declaration that, under similar circumstances and conditions, a greater sum shall not be charged for a shorter than a longer distance, because under such circumstances it would not be 'reasonable and just 'to make such a charge. The next requirement of the bill that affects this question is found in the first part of the third section, which (quoting the first part of the third section) forbids giving an undue or unreasonable preference or
shorter being included within the longer distance."
This is language of the most general and
advantage to any particular locality. This is likewise a declaration that a greater sum shall not be charged for a shorter than for a longer haul under similar circumstances and conditions, because such a charge would be the making or giving of an ‘undue or unreasonable preference or advantage' to one particular 'locality,' or would subject some other particular locality' to an ‘undue or unreasonable prejudice or disadvantage. Mr. Cullom then recited section four, and said :
As I understand it, this section, as it now stands, simply prohibits a railroad corporation from charging a greater aggregate sum —not a higher rate-for a shorter than for a longer distance over the same line, in the same direction, and under substantially similar circumstances and conditions, when the shorter is included within the longer distance. There is no other prohibition made in positive terms. The declaration, that 'this shall not be construed as authorizing any common carrier within the terms of this act to charge and receive as great compensation for a shorter as for a longer distance,' does not in terms prohibit the charging as much for a shorter as for a longer distance, but simply withholds the legislative sanction from the making of such a charge. This qualifying clause negatives the inference that might possibly be drawn from the language of the section without these words, namely, that an equal charge for a shorter distance is authorized by inference; because only a greater charge is prohibited. This qualification, therefore, leaves the question of whether an equal amount can be charged for the shorter distance to be determined by the provisions of the bill to which I have already referred, requiring all charges to be reasonable, and forbidding the giving of an unreasonable preference or advantage to any particular locality. The requirement of the fourth section, then, is that as between shipments of the same kind, in the same direction, over the same line, and made under substantially similar circumstances and conditions, a greater sum shall not be charged for a shorter than for a longer haul when the shorter comprises part of the longer haul
comprehensive character. It refers to all of the circumstances and conditions existing at the time of the transportation. It is useless to un
not that a higher rate shall not be charged per mile, but that a greater aggregate sum shall not be charged. . . . The limitations placed upon the prohibition that is made are very significant, and they must not be overlooked. They require that in determining the sum that may be charged for a shorter as compared with a longer distance the requirement must be made:
“I. Between shipments ‘of like kind of property.' “II. “Under substantially similar circumstances and conditions.' “III. Over the same lines.' “IV. In the same direction.
When the shorter is ‘included within the longer distance.' “ When the act is to be applied in any given case to measure the charge that may be made for any distance, as compared with the longer distance, all of these limitations must be taken into account, and they must all apply to the case—not three or four of them, but all of them. The first, fourth, and fifth of these limitations do not appear to call for any explanation, but the meaning of the second and third
may need some explanation. As I understand them, the words circumstances and conditions' mean the conditions that govern railway traffic and the circumstances under which it is transported. To my mind these words are full of meaning. They comprehend all the circumstances and conditions that may justify differences in rates, such as competition with other railroads and with water routes, the volume and character of business at different points, the difference in terminal expenses, and the cost of service in each case. If the words used were 'the same circumstances and conditions,' ingenious railway gentlemen would be able to show that the circumstances and conditions were never exactly the same in any two cases. And they might also be able to show that they were not similar,' if that was the word used. But the words “substantially similar' impart enough latitude to the comparison to enable the courts to exercise a sound discretion and common-sense in passing upon cases that may arise. So far as any one railroad company is concerned,
dertake to specify what these “circumstances and conditions may be; because each case must be judged by its individual facts.
therefore, the sum which it may charge for a haul from one end of its railroad to the other end becomes the maximum amount it can charge for any shorter haul over that road in the same direction and under substantially similar circumstances and conditions when the shorter distance is included within the longer.
“But the question that seems to trouble those who object to the section as it stands is, whether the maximum thus fixed is the sum which a railroad company charges upon shipments originating at and destined to points upon its own road, or whether the maximum is the sum which it accepts as its share of a through rate upon shipments passing over its road which originate at or are destined to points upon another road. It seems clear to me that there can be but one answer to that question. In the first place, the measure of the charge that may be made for the shorter distance is the sum that is charged for a longer distance over the same line and under substantially similar circumstances and conditions. The rates fixed by a railroad company between points upon its own road are clearly rates upon one line, or, in the terms of the bill, 'the same line.' A railroad company can make and control the rates upon its own road, and the section says that in making such rates the short-haul principle shall be observed. A railroad company cannot control rates over the roads of another company. But when two or more companies unite in making joint rates over their respective roads, they become in the eye of this bill one line, and this section says that the short-haul principle must be observed in making rates over that line, the two or more roads composing it being, within the meaning of the section, the same line so far as such joint rates. are concerned. The word railroad is used throughout the bill, and the word line is used only in this section. The courts will be bound to assume that the word line means something different from the word railroad, or it would not have been used in this one instance when the word railroad would naturally have been used if something different had not been intended. The word line means a railroad