dining-car was empty and had not actually entered upon its trip, it was not used in moving interstate traffic, and hence was not within the act. The dining-car had been constantly used for several years to furnish meals to passengers between San Francisco and Ogden, and for no other purpose. On the day of the accident the eastbound train was so late that it was found that the car could not reach Ogden in time to return on the next west-bound train according to intention, and it was therefore dropped off at Promontory to be picked up by that train as it came along that evening. The presumption is that

it was stocked for the return, and as it was not a new car, or a car just from the repair shop on its way to its field of labor, it was not "an empty," as that

term is sometimes understood. Besides, whether cars are empty or loaded, the danger to employés is practically the same, and we agree with the observation of District Judge Shiras in Voelker vs. Railway Company, 116 Fed. Rep., 867, that "it can not be true that on the eastern trip the provisions of the act of Congress would be binding upon the company, because the cars were loaded, but would not be binding upon the return trip, because the cars were empty." Confessedly this dining-car was under the control of Congress while in the act of making its interstate journey, and in our judgment it was equally so when waiting for the train to be made up for the next trip. It was being regularly used in the movement of interstate traffic, and so within the law.

Down to the wharves as the sun goes down, And the daylight's tumult and dust and din Are dying away in the busy town,

I

go to see if my ship comes in.

I gaze far over the quiet sea,

Rosy with sunset, like mellow wine, Where ships, like lillies, lie tranquilly Many and fair-but I see not mine. I question the sailors every night Who over the bulwarks idly lean, Noting the sails as they come in sight"Have you seen my beautiful ship come in?" "Whence does she come?" they ask of me; "Who is her master, and what her name?" And they smile upon me pityingly

When my answer is ever and ever the same. O, mine was a vessel of strength and truth, Her sails were white as a young lamb's fleece, She sailed long since from the port of YouthHer master was love, and her name was peace And like all beloved and beauteous things, She faded in distance and doubt awayWith only a tremble of snowy wings

She floated, swanlike, adown the bay.

Carrying with her a precious freight-
All I had gathered by years of pain;
A tempting prize to the pirate, Fate-
And still I watch for her back again.
Watch from the earliest morning light
Till the pale stars grieve o'er the dying day,
To catch the gleam of her canvas white

Among the islands which gem the bay
But she comes not yet-she will never come
To gladden my eyes and my spirit more,
And my heart grows hopeless and faint and dumb,
As I wait and wait on the lonesome shore.
Knowing the tempest and time and storm
Have wrecked and shattered my beauteous bark;
Rank sea weeds cover her wasting form,

And her sails are tattered and stained and dark
But the tide comes up, and the tide goes down,
And the daylight follows the night's eclipse-
And still with the sailors, tanned and brown,
I wait on the wharves and watch the ships.
And still with a patience that is not hope,
For vain and empty it long hath been,

I sit on the rough shore's rocky slope,
And watch to see if my ship comes in.

President Samuel Spencer, of the Southern Railway, was before the House Committee on Interstate and Foreign Commerce the past week testifying against the Cooper-Quarles bill, or any proposition to authorize the Interstate Commerce Commission to fix railway rates. He is the first direct and official representative of the railroads to be heard by the committee.

President Spencer stated that the interstate commerce law and the Commission had been in operation eighteen years. Before this time the rebate, the secret contract and discriminatory devices of various kinds were the rule. Now the reverse is the case. Rates are substantially maintained.

"There is no difference of opinion," continued President Spencer, "between the railroads of the country, Congress and the President on the subject that rebates are wrong. We agree with the language of the President that the highways of transportation must be kept open to all on equal terms. On that basis the railroad companies are ready and anxious to aid and cooperate. But I do not think any additional legislation is necessary in order to proceed against that particular class of abuses. If such legislation does not appear to Congress to be necessary, the railways of the country will certainly stand, and I have no hesitation in saying so, in coöperation and aid to that end. That particular phase of regulation has already been pronounced by the Commission as fully covered by existing statutes. It simply becomes a question of enforcement of the law. But the question before you is not of that character-it is that of the power to name a rate upon the part of the Commission after complaint and hearing. It has been claimed this will be a means of stopping rebates. This claim I have no hesitancy in disputing, and will give it attention later."

As to the necessity for the proposed legislation, President Spencer, in review

Pres

ing the situation for the last elghteen years, stated that about 90 per cent of all the claims or questions of various kinds which have been presented to the Interstate Commerce Commission in that time have been adjusted without formal hearing and decisions on the part of the Commission. "That," he said, "does not indicate either a fight or noncoöperation on the part of the railroads." Of the remaining 10 per cent of the work of the Commission, scarcely two per cent was the subject of litigation. ident Spencer said the railroads acquiesced in four-fifths of the decisions of the Commission. "Out of the 43 which went to litigation," he continued, "25 related to rates, and in 22 out of the 25 cases, the decisions of the Commission were reversed by the courts. One case only was affirmed by the courts in its entirety, while two were partially confirmed and partially reversed." These figures cover eighteen years and a railroad mileage of 210,000 at the present time, and 135,000 miles at the beginning of the period named. "Does this indicate the necessity for legislation with respect to rates?" President Spencer asked. He expressed the confidence of the railway world in the Commission, and said it was justly worthy of the respect of the country.

There was only one feature of the Quarles-Cooper bill which President Spencer discussed specifically, and that was the portion conferring power on the Commission to substitute a rate for one complained of as unreasonable, after due hearing, said rate to remain in effect subject to change only by the Commission or by the courts on appeal by the railroads. President Spencer denied that the Commission ever legally had such power, and said the courts in 1897 had prohibited the exercise of the power by the Commission. "It is claimed," he continued, "that this power would be a weapon in the hands of the Commission to prevent rebates. But a rate fixed by the Commission can

be rebated or evaded just as easily as any other. The use of that weapon if given the Commission would punish not the evader of the rate, but the road which upheld the rate, as exercise of the power would be to let the rate down to the lower figure, thus working no hardship on the road making the less rate, but punishing the road maintaining the regular rate."

The most important argument in behalf of the proposition President Spencer believed to be that such power would enable the Commission to prevent discrimination between localities. This question of adjusting rates between localities, he said, was the most difficult and intricate of all.

The pres

ent adjustment was the outgrowth of natural competition, not only between localities, which had and would always exist, but between railroads as well. Το disturb this adjustment or to begin its disturbance, he maintained, would not only be a task so enormous that no statement could convey a comprehension of it, but would be impossible of satisfactory completion in the hands of a body with authority only to take into consideration the one phase of adjusting rates with reference to their equalization só far as the carrier was concerned, and leaving out the question of competition between localities. In this problem the price of commodities of every sort would have to be taken into consideration, and he instanced the competition between mining centers, agricultural centers, manufacturing centers, etc., as illustrating his meaning. Stability as to prices of commodities could not exist, he maintained. Should such be the case, commerce would become absolute stagnation.

Taking the Commission's report, President Spencer said that in the ten years preceding 1901 only 31 cases of discrimination between localities had come before it, and only one of these had been sustained by the courts. This, when taken in connection with the two hundred thousand miles of railroad and the forty-five States of the Union, indicated to his mind that no new authority need be given on this problem. If authority

should be granted there would not be a locality which would not immediately bring forth the claim that it was being discriminated against in order to secure additional advantages, if possible.

As to the subject of unreasonable rates, President Spencer referred to the statement which had been made to the committee that rates were thirty-three thousandths of one per cent higher in 1903 than in 1899, making a total raise of $155,000,000. This he conceded to be true when the gross receipts were taken into consideration. He gave as a reason the increase in the price of commodities of every discription, and consequently the cost of operation of railroads. The net return to the roads had been less than in 1899. It was a singular coincidence, also, he mentioned, that the comparison was made with 1899, which was the lowest year as to rates in the history of American railroads.

VIEWS OF PRESIDENT TUTTLE.

President Lucius Tuttle, of the Boston and Maine, in a Boston address the past week discussed the specific proposal that railroad rates shall be arbitrarily fixed under Congressional supervision and authority. In referring to the results of the interstate commerce law and the Sherman anti-trust act he said:

The railroads having in many instances extended their lines in anticipation and advance of the public demand therefor, and being denied the privilege of arranging an equitable distribution of the existent competitive traffic at remunerative and reasonable rates, at once entered upon a fierce and ruinous competition, which made their rates and service unstable, irregular and discriminatory, and, as one of the results of the business panic of 1893, many of the larger, as well as the smaller systems, were forced to take refuge from the claims of their creditors by passing into the hands of receivers; whence most of them have since emerged and, under the processes of natural law, have become component parts of greatly enlarged, consolidated and unified combinations, or systems, under whose combined, but lawful, management the possibility of general competition such as it was one of the

purposes of the interstate commerce law to uphold and maintain, has hopelessly and forever vanished. This combination and unification of separately owned and competing roads is still going on at a rate of progress that will, in the not distant future-and still under the working of natural laws remove whatever rebating, secret rate giving and other forms of favoritism now exist, and for which the railroad managers have been so severely censured, but of which the conscience of an outraged public has never yet prevented it from reaping the uttermost advantage.

As to the powers to be conferred upon the Federal Commission, President Tuttle said: "I differ with the Interstate Commerce Commission, and with those who advocate increasing its powers, only upon the one point that I believe to be of vital interest, namely, the power to make rates. I am heartily in favor of such carefully thought-out additional legislation as may be found needful for ending and forever preventing railways from conspiring to give, or their customers combining to exact, any favors or facilities that may not, under like circumstances and conditions, be given to and received by all; but I am fully convinced that the power to fix the price at which railway transportation shall be sold can be left with safety only in the hands of those who must assume, and have no way of escape from, the care and expense of producing that transportation; and that legislation tending to separate these two indissolubly connected and paramount responsibilities is communistic in its tendencies, and in contravention of the natural laws of supply and demand.

"Is it not one of the unalterable workings of natural law that whoever exercises the power to fix the maximum price at which a product shall be sold must likewise fix the minimum price, and must also ultimately assume and control the cost of making that product? As no workable plan has yet been devised for equitably dividing the producer's responsibility of fixing the price at which his product may be profitably

sold or of guaranteeing its cost, and as the only product of the railway company is transportation, will it not unalterably follow that when Government takes the first long step of using its power to fix the maximum price at which that product shall be sold to the public it must also fix the minimum price, and then, sooner or later, take the next and much shorter steps leading to Government ownership and operation of the railways, and thereby assume and control the cost of making as well as the selling price of this transportation product? And, if this be true, is not this the method which the Socialist has, in season and out of season, insisted should be applied?"

President Tuttle concluded his address as follows: "But as he who criticises and objects to proposed methods is in reason bound to suggest something in substitution, I assume the necessary responsibility, and, with becoming modesty, offer the following:

"The present law seems adequate and sufficient, if thoroughly applied, to enable the Interstate Commerce Commission to bring to light, punish and prevent every form of rebating and secret rate giving or taking, as rapidly as the cases are brought to its attention, and therefore further legislation upon this branch of the subject seems at present to be unnecessary.

I sug

"The other principal abuses and evils alleged, and to which congressional attention has recently been called, are said to arise out of the improper use of privately owned freight cars and of private side tracks and railways of the socalled industrial combinations. gest that, if these privately controlled special facilities and their owners are, to the extent that they deal in transportation, brought within the scope of and made amenable to all laws that are now, or may hereafter be, applicable to transportation companies engaged in interstate commerce, the alleged abuses and evils will at once become controllable and can be wholly eradicated.

"If the rate-making power is then

found to need further supervision and regulation the Interstate Commerce Commission should have added to its present full power of investigation that of recommending to the railways the substitution of rates that it thinks reasonable for those that, upon investigation, it has condemned, and if within reasonable time-say, thirty days-the railways interested fail to adopt these recommended rates, the Commission should make to Congress a report of its findings and recommendations and of the failures or refusals to comply therewith, leaving to Congress the duty of applying such remedies as it may then think needful.

"This plan has worked well for so many years in our own Commonwealth that its trial by the General Government would seem to be at least worthy of consideration. It would have the wholesome, and I think necessary, effect of preventing an accumulation of frivolous complaints, with which the Commission is quite certain to be overwhelmed if the proposed plan of giving it the final adjudication of all rate cases submitted to it is adopted; and judging from the working of our Massachusetts laws covering this matter, the restraints against arbitrary and unjust acts by any of the railways would be so sufficient and wholesome as to bring substantial and even-handed justice to all parties in interest."

RATE LEGISLATION BEFORE CONGRESS.

Two new railway rate bills were added this week to the mass of embryotic legislation before Congress relating to the problem of regulation of the transportation companies. The two new measures were prepared by Representative Esch, of Wisconsin, and Representative Townsend, of Michigan, and their provisions seem to fit each other so that passage of both together is evidently intended.

The Esch bill confers additional powers on the Interstate Commerce Commission. It authorizes the Com

mission when rates are found unreasonable, to substitute just and reasonable rates, which must take effect within thirty days. The Commission's decision may be appealed from within sixty days to the Court of Transportation created by the Townsend bill. When a joint rate is affected by the decision and the parties fail to agree as to the apportionment, the Commission may issue a supplementary order fixing the proportion of the rate for each road. A penalty of $5,000 a day is provided in case of failure to carry out the orders of the Commission.

he

The Townsend bill creates a Court of Transportation, which is to rank in a general way with the United States Circuit Court. It is to consist of a Chief Judge, with a salary of $9,000 a year, and four associate judges at $8,500, all appointed by the President. This court is to hold one regular session in Washington, beginning the first Monday in October, and lasting as long as it is deemed necessary; but the Chief Judge may appoint special sessions at any time and place deems necessary. The court is to have exclusive original jurisdiction over suits concerning decisions of the Interstate Commerce Commission, with the power to enforce obedience to the Commission's order or to restrain such orders. No evidence of either party is admissible before this court which with proper diligence could have been submitted to the Commission. An appeal can be taken from the court's decisions to the United States Supreme Court within sixty days.

Representative Davey, of Louisiana, has also introduced a bill giving the Interstate Commerce Commission authority to name a reasonable rate in the place of one they have declared unreasonable, but withholding the power to raise any rate that has been fixed by a railroad.

Representative Hepburn, of the Interstate and Foreign Commerce Committee of the House, has also in preparation a measure dealing with the subject.