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The Columbia University Libraries reserve the right to refuse to accept a copying order if, In its judgement, fulfillment of the order would involve violation of the copyright law. Author: Scott, John Title: Remarks of Mr. John Scott... Place: Philadelphia Date: 1885 ^U-^3il^0-L^ MASTER NEGATIVE « COLUMBIA UNIVERSITY LIBRARIES PRESERVATION DIVISION BIBLIOGRAPHIC MICROFORM TARGET ORIGINAL MATERIAL AS FILMED - EXISTING BIBLIOGRAPHIC RECORD Business |D550.7 Sc84 Scott, John Remarks of Mr. John Scott, general solicitor Pennsylvania railroad company, before the Judi- ciary (general) committee of the Senate of Pem>" sylvanla on the anti-discrimination bill. Har- risburg, April 9th, 1885. Philadelphia, Allen, Lane & Scott's print, house, 1885. 25 p. 1. Railroads - Pennsylvania. 2, Railroads - Pennsylvania - Rateai^*^ RESTRICTIONS ON USE: TECHNICAL MICROFORM DATA FILM SIZE: 3S^a^ DATE FILMED: TRACKING # : REDUCTION RATIO: l^' \ (c'W-^^ IMAGE PLACEMENT: lAMIA )lB MB INITIALS : ^ MiN 01^ C>^ FILMED BY PRESERVATION RESOURCES, BETHLEHEM. PA. ■^, > O a CD o lO CO X M ^. ^. '^ •^^^ * 3 > CD o m CD CD ^ o o N M o m %P-. *c: =3 ^: V > >^^ Ul o a 3 j^ S ^-^. > ^z^. ^ ^^S^Z^v. 8 3 3 '^. ^.. O ffFni5p|?|5|;|- F* to 00 o^ CX) ro b In 1.0 mm 1.5 mm 2.0 mm ABCO£FGH1JKLMNOPQRSTUVWXYZ abcdefghi|klmnopqrstuvw»yz 1234567890 ABCDEFGHUKLMNOPQRSTUVWXYZ abcdefghijklmnopqrstuvwxyzl234567890 ABCDEFGHUKLMNOPQRSTUVWXYZ abcdefghijklmnopqrstuvwxyz 1234567890 ^< 2.5 mm ABCDEFGHUKLMNOPQRSTUVWXYZ abcdefghijklmnopqrstuvwxyz 1234567890 V .^^ .V ^^ "b ^O fcP fp ¥^ m O O -o m -o OLl"D > C CO I TJ ^ ^Ooo 0o en o z n a* CT 0» ABCDE cdefghi 5^m FGH jkIm HIJKLM Tinopqr! IJKLM nopqr saz s-z 0PQRS7 jvwxyzl OPQR uvwxy r^,c: f»" C/5 **< !:"-• r^c: CTiX ->i-< 00 INI cn< O o^x oorsi o ^. ^^. ». s Columbta (inttimftp THE LIBRARIES Graduate SCHOOL OF BUSINESS Library ""■"*: •."-^^^ t'*.* «>»..^ ■■ ».-•:*•' >v>-:*;' :-*3;'if'*^'^'^' ;-■-„** •■- !'<; r<^- •; ;i : ( : ■ iW REMARKS OF MR. JOHN SCOTT GENERAL SOLICITOR PENNSYLVANIA RAILROAD COMPANY, BEFORE THE JUDICIARY (GENERAL) COMMITTEE OF THE SENATE OF PENNSYLVANIA ON THE ANTI DISCRIMINATION BILL. -^ 1,11, . '^ ■ '"N . HARRISBURG, APRIL 9th, 1885. PHILADELPHIA: Allen, Lane & Scott's Printing Hottsk, Noe. 229-231 South Fifth Street. 1885. .''«*^-'^A^ .j;.'- !y ■ - l:' /■'i'>^ ^«»j^ ■:^^.;^»- , ■^■■sct' -rm^ i«S-iC :'i.Jvi:iXE ■ ^ ^mmtrnm mr -^t -.■;»«- ■ww^-w;*r^«w-' EEMARKS OF MR. JOHN SCOTT GENERAL SOLICITOR PENNSYLVANIA RAILROAD COMPANY, BEFORE THE JUDICIARY (GENERAL) COMMITTEE OF THE SENATE OF PENNSYLVANIA ON THE ANTI-DISCRIMINATION BILL. .^ HARRISBURG, APRIL 9th, 1885. 4 PHILADELPHIA: Allen, Lane & Scott's Printing House, Nos. 229-231 South Fifth Street. 1885. ■■Mar- CD CI REMARKS OF JOHN SCOTT, ESQ., Before the Committee on Judiciary of the Senate of Pennsylvania. Harrisburg, April 9th, 1885. Mr. Chairman and Gentlemen of the Committee : — I am not fully apprised of the course of the argument that has been followed in the discussion of the bill before you. I may, therefore, probably be traversing ground which has already been fully occupied by those who have preceded me. I shall waste none of your time in preliminary observations about the bill, but take it just as it is printed, and en- deavor, in as brief a time as possible, to consider its ef- fect, if it be passed, in the light of the legal questions which it will raise. I do not propose to discuss the practical railroad questions involved, to any great extent. I always prefer that questions of that character should be handled by those whose practical business operations enable them to discuss them more intelligently and to answer such inquiries as may be presented with reference to them. The title of this bill is " An act to carry into effect the pro- visions of the first, third, and seventh sections of the seven- teenth article of the Constitution of this Commonwealth, and to provide penalties for the violation thereof" The title, announces the intention to prevent, and punish by penalty, the violation of any of the provisions of either of these three sections ; and, in view of the sixth section, which makes it a misdemeanor punishable by fine and imprisonment to do anything prohibited, to fail to do any- kim mm mfmmmmt nl;in apw thing required, to violate either one of these provisions, or to aid or abet in doing so, it becomes important to look for a moment at those sections of the Constitution and ascer- tain what would be indictable offenses under them if you thus put them into the form of statute law. That I proceed briefly to do. The first section of this bill is identical with the first section of the seventeenth article of the Constitution. It declares three rules or principles : First, That all railroads and canals shall be public highways, and the companies common carriers. Second, It announces the right of the citizens to construct and operate railroads between given points. Third, It an- nounces that railroads so constructed shall have the right to intersect, connect with, or cross any other railroad in the Commonwealth. Now, these are simple enunciations of rules or principles. There is no enumeration of the circum- stances under which the rule is to be applied. Fourth, It declares a duty. In connection with the declaration that every railroad company shall have the right with its road to in- tersect, connect with, or cross any other railroad, it an- nounces the duty that every railroad so constructed or so intersecting or crossing shall receive and transport each the other's passengers, tonnage, and cars, loaded or empty, without delay or discrimination. I wish to emphasize again that this Constitutional pro- vision, which you are enacting into statute law, declares three general principles, and imposes one duty resulting from them. I will go over all three sections, before I consider the effect of enacting them into statute law, in connection with the sixth section. What is the second section of the bill ? — the third of the sev- enteenth article of the Constitution ? ** All individuals, associations, and corporations, shall have an equal right to have persons and property transported over railroads and canals, and no undue or unreasonable discrimination shall be made in charges for, or in facilities for transportation of freight or passengers within this State, or coming from or going to any other State." That is one full sentence — the first clause of which declares 5 a right, and the second clause of which perhaps defines a duty. But before we pass from it let me call your attention to what I think is very significant in connection with the sixth section — if the intent of this bill is to protect all persons within the purview of those who framed the Constitution. ' ' No undue or unreasonable discrimination shall be made in charges for, or in facilities for transportation of freight or passengers.'' The sixth section starts out — the one in which the criminal offenses are punished — with making a failure to do anything •enjoined by those three sections or the doing of anything pro- hibited an indictable offense. If it be the interest of the people of this whole Commonwealth that the framers of this bill are endeavoring to protect, why do you omit in this sixth section the schedule of passenger rates, and fail to punish discrimination in favor of passengers as well as that made in carrying freight ? Is not the one as great an injustice as the other? ;^24,ooo,ooo earned in one year by the Pennsylvania Railroad Company in carrying freight and ^6,ocx),ooo earned in the same year in carrying passengers would justify the idea that the people who pay into the treasury one-fifth of its revenues for being carried on the road should be protected equally with those who send their traffic over it. And if it be your policy to administer railroads or canals ■or any other transportation business through the Courts of <3uarter Sessions and you intend to send the officers of rail- road companies to prison and amerce them with a fine for failing to perform any duty, or for doing that which is pro- hibited by this section, I claim that under it discrimination in ■carrying passengers is as bad as in carrying freight, and if the officer is to go to jail for making it, you should send to jail with him the man who knowingly takes the benefit of the discrimination. I mean what I say when I announce that. If it be wrong for an agent or officer of the Pennsylvania Railroad Company to issue a free pass to a man who demands it, and charge his neighbor full fare, the man who receives it willfully and knowingly and rides upon it deserves to go to jail just as much the officer who issues it. (Laughter.) I am speaking^ upon general principles. I disclaim all personal reference to anybody. Senator Lee : — There is another bill pending, Mr. Scott,. to prevent the issuing of free passes. Mr. Scott : — I am very glad of it, sir. Has that bill a clause in it which makes it an indictable offense in both giver and receiver, and sends both to jail ? Senator Lee :— No, it has not. (Great laughter.) Mr. Scott: — I thought not. Here you are incorporating into the statute law the second section of the seventeenth article, which prohibits discrimination in either freight or passengers. You omit all reference in your criminal section to discrimina- tion about passengers. Yet you send a man who sends out a way-bill at a country station to jail, if he happens to make a mistake in the schedule, or if he happens to make a mistake in the class, and the jury comes to the conclusion that he did it willfully. Senator Lee : — We had a bill of that character two years ago with a clause making it a crime in the receiver, and it could not pass. Mr. Scott : — I am putting a question ; it is not in this bill ; that is my point. I am discussing this bill before the Senate Committee, and I wish to discuss it with all candor and fair- ness. The second section also prohibits this discrimination in freight : — " Or passengers within this State or coming from or going to any other State." I shall withhold what I have to say about that particular feature of the bill as affecting inter-state commerce until I come to the sixth section. Again, the second section says : — ** Persons and property transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station, but excursion and commutation tickets may be issued at certain rates." I shall not take time to comment on that. This sec- * \ • I tion declares equality of right in having persons and prop- erty transported over railroads and canals, and prohibits undue and unreasonable discrimination ; and then, as one in- stance of undue and unreasonable discrimination, defines a case, namely, it prohibits persons and property going over any railroad from being delivered at any station at charges exceeding the charges of persons and property of the same class to any more distant station. The third section (which is the seventh of the Constitu- tion) provides against discrimination in charges or facilities in furnishing cars. I have gone over these three sections, as they are really the vital portions of the bill, in view of the subsequent enactment. What is the effect of the whole three ? With the excep- tion of those parts of the several sections which relate to dis- crimination in freight and passengers or furnishing facilities, all the others are mere declarations of right or principles, every one of which would require specific legislation to pro- vide for their ascertainment and enforcement. In addressing a committee of lawyers, it is not neces- sary for me to say that in order to indict and convict, a crime must be defined and made certain. Suppose you were to enact the principle of the Declaration of Independence, that all men are created free and equal, and then follow it with the declaration that all men doing anything prohibited or failing to do anything required, should be indicted — what lawyer would not scout that indictment out of court. Now let me inquire into the effect of this sixth section which declares indictable offenses, by taking one illustra- tion. Mr. Roberts, the president of the road, has referred to the question of crossings in the Commonwealth. There is the abstract declaration, without definition of circumstances, in the first section of this bill that " every railroad company shall have the right with its road to intersect, connect with, or cross any other railroad." In the first place, although that is an extract from the Constitution, it is entirely too broad when _you come to enact it into statute law without further definition. i\^^] ! si 8 " The railroads of any companies may cross any other rail- roads." Why, there are many railroads in this Commonwealth that are owned by private individuals. I know railroads in the interior of the State, entirely on the lands of the people who built them, without any franchise from the Commonwealth. They are not collecting tolls, they are not carrying passengers, they are simply exercising the rights^ of private citizens, and are running railroads to develop their mines. By that language any railroad company which hap- pens to come along and strike one of them, under this bill has a right to cross it. I say they cannot do it without first condemning the property and paying compensation. But, for the purposes of this bill suppose the man who owns his right of way, has his railroad on it, meets the engineer or president of the road seeking to cross, and says : " No, you shall not cross ; I will prevent you from crossing ; you have not con- demned it; you have not got the right of way." And even if they had, is that man, for exercising his right — putting down a railroad which is not subject to the police power of the Commonwealth, and is as much his private property as if it were a tramway to his spring-house — is that man to be put to jail for preventing the crossing because he has violated one of the provisions of the Constitution of Pennsylvania? Why,, you would have a rebellion around you every day in the week if you attempted to enforce that in a farming com- munity. Senator Smith : — Yes ; we would. Mr. Scott : — Yes, you would, Senator. Now, let me go- farther. There were some railroads incorporated before 1857. Railroad corporations, in those days, when they took their charters, subscribed their stock and built their roads, relying" upon the faith of the Commonwealth in the contracts that were thus made. So long as the principle of the Dartmouth College case stands, I trust those contracts at least will be observed. Now, it might naturally be supposed that in a great enterprise, like the Pennsylvania Railroad Company, ta run through the interior of the State, they would need some guarantees on the part of the Statethattheir investment would not be frittered away immediately ; and, accordingly, on that question of crossing I invite your attention to the last clause of the Pennsylvania Railroad Company's charter. There were good men in the legislatures of those days. There are always good men in the legislatures ; and they are very greatly slandered, I know. But, those good men seem to have been impressed with the idea that they were making a contract with the Pennsylvania Railroad Company, and lest it might be sup- posed that they had, by granting this charter to build from Harrisburg to Pittsburgh, prevented themselves from charter- ing other railroad companies to occupy the same ground, what did they put into that twenty-seventh section of the charter of the Pennsylvania Railroad Company ? " The Legislature of Pennsylvania hereby reserves to itself the right to authorize any road hereafter " (I am not quoting exactly the sentence, but it is the substance) '' to be constructed by any other company— ex- cept parallel roads to be connected with the road of the Pennsylvania Railroad Company at such points as the Legislature may designate." Now, on this question of crossing, under the Constitution of Pennsylvania, under well-established principles, there are two conditions in that contract which cannot be violated. First, the Legislature of Pennsylvania cannot authorize a parallel road to connect with the Pennsylvania Railroad. There is your bond, and you have given it, that you will not. Second, no other connection is permitted to be made except those which shall be designated by the Legislature. So that the railroad company has the faith of the Common- wealth pledged against connection by parallel roads and against any other connection than that which the legislature in its sense of justice shall think it right to grant. Now, the point I make is this. Under your bill, suppose a railroad company chartered under existing laws comes to the line of the Pennsylvania Railroad Company and says : " We demand a connection at this point." If it is a parallel road of course it cannot be done even by the Legislature. But I am taking another case. I am an officer of the Pennsylvania Railroad Company ; Mr. Roberts is an officer of the Pennsyl- S' if lO vania Railroad Company, and he says to me : " Mr. Scott, has this road chartered under the law of 1868, the right to connect with our road at a point that they see proper to designate." I say to him in candor, " In my opinion, no ; if that road wishes to connect with your road they must procure the sanc- tion of the Legislature of Pennsylvania before they can do it." He so reports to his board, and the board decides that the other officers of the company be directed to resist the cross- ing. Under your bill, notwithstanding the faith of the Com- monwealth pledged as I have shown you, it is entirely possi- ble for every one of us to go to jail. For under your bill the failure to permit the crossing which the Constitution says shall be made is an indictable offense punishable with fine and imprisonment, and the only tribunal that determines whether the offense has been committed or not, is the jury. There is no definition of the offense at all. It may, too, be a crossing at grade, which the act of 1871 prohibits if any other is rea- sonably practicable. Is not your bill too broad ? Are you willing to re-enact the Sermon on the Mount or the Declara- tion of Independence because they contain good general prin- ciples, and make criminal the failure of men to apply them ? It is a departure from the principles of Anglo-Saxon liberty to make a man answer for an offense that is not so set out on the record that if ever indicted for it again he can plead that he has been tried once for it already. But if tried under this bill, you can come in and indict hi m almost for not building a railroad. I have selected that one provision as an illustration. And from that illustration how many indictments are you going to have in the courts of the Commonwealth under this bill ? A railroad is a public highway. " Any association or corporation organized for the purpose shall have the right to construct and operate a railroad between any points." Here is another general principle, and to deny it and dis- pute it, to fail to observe it, is an indictable offense. All these are made indictable offenses. No criminal pleader could draw indictments under such enactment. I trust that no law of /' II this kind will ever go on the statute book of this Common- wealth as a penal statute. So I might read all the provisions of the three sections ex- cept those which I have stated as imposing duties. Gentlemen of the Committee, I need not take up your time in going over this view of the question. You propose pro- hibiting legislation for the purpose of enforcing these three articles. I have shown you that, with the exception of dis- crimination, all the others are simply declarations of general principles. Discrimination is already prohibited by statute and defined. Two years ago I had the honor of appearing before a committee of this body upon this same question, and after hearing all that was said on the subject you passed the act of 1883, still on the statute books, and it defines and pun- ishes with a penalty every feature of discrimination that is in this bill. Although it did not make the failure to observe it a criminal offense, but imposed only a penalty, it defined what is undue and unreasonable discrimination. Senator Biddis : — Has there ever been in any of the courts a case under the law of 1883 that you know of? Mr. Scott : — You have anticipated the very remark I was about to make, that although that law stands on the statute book and has stood there for two years defining the offense of undue and unreasonable discrimination, and giving to the party injured three times the damages he had suffered, not simply the overcharge, but three times the damages he has suffered, so far as the road under my immediate supervision in its legal department is concerned, — and that embraces all the roads of the Pennsylvania system East of Pittsburgh and Erie, there has not been a single suit instituted in a court of this Commonwealth to recover that penalty ; not one. The offi- cers of other companies can answer for them. Senator Lee : — Have they not settled cases where demand was made for discriminations made ? Mr. Scott : — We have not settled any that I am aware of. Senator Lee : — Has the company ? Mr. Scott : — If the general freight agent has settled such, I do not know ; but if they have — n ; I 12 Senator Lee : — {Sotto voce) They have, I know. Mr. Scott : — If they have, there is no better illustration of the fact that the people of this Commonwealth do not need criminal enactments to get justice if they can get it by going to the office of the general freight agent. That is a much shorter course than lawsuit — the course implied in your question — and you ought not to put it unless you know it to be true ; and I say the implication in your question is the best reason in the world why this law should not pass. If they have made discriminations and they return the money ( I do not agree that it is so), that is better to any man than to indict the agent or to bring suit and get the money. I do not know that it is so ; but if it be so, it answers the only argument you can make for the passage of your bill. Let me pass on now to the fourth section. This is intended as a means of preventing discrimination by making public rates and charges. The practical question I do not propose to discuss at any length, although there are some on the face of this so clear that it seems to me that the authors of the bill have mistaken what they intended to say, or have said a good deal more than they are willing to avow now. What do you ask us to do ? To put up at every station a schedule covering all classes of merchandise, and all the places to which they are to be forwarded. The learned author of the bill, the learned member of the committee who put his interrogatories to Mr. Roberts, rather intimated that that was intended only to cover the stations on the line of the road itself If so, pray why did you follow it with language which requires us to give the rates to every place, not only in this State, but in the other States into which we go, and from which freight comes, and into foreign countries. And we are to put it up in two places, so that it can be read for public information; and the rates are to be agreed upon, not by the general freight agent, but by the company ; and when they are put up we cannot change them until there has been two days' notice ; and when we do change them we cannot take those down until we have reprinted the substitute for the whole schedule that we had previously put up. We cannot > i t \% 13 resort to the " sticker " principle, as people do at elections, of putting on a little piece of paper to correct an error or change a name or anything of that sort ; but every time a change is made there must be a substitute for those previously put up, and that cannot go into effect until two days after it is put up. I submit that under the language of that section, where you require the rates to be fixed, not by the freight agent, but by the company (requiring corporate action), it would involve corporate action again to change them and order the new schedule to be put up. Meantime where is the poor agent if a mistake has been made ? If he charges an unreason- able amount — more or less — if he even wants to correct a mistake he is liable to indictment at the suit of any malicious person shipping over the road. In my judgment that section is impracticable, utterly impracticable. And Mr. Roberts has stated very fully the process through which you require a railroad company of this Commonwealth to go in making amendments, always giving sufficient notice for every other railroad company lying between the line of Pennsylvania and Omaha to change its rates before our changed rates can go into effect. There is no use in ignoring the course of business in the country. It is stronger generally than an unreasonable law. Business will find its way through the channels that nature intended, unless there be obstacles put there so strong that they cannot be overcome. If you do in Pennsylvania pass such legislation as prevents its corporations from getting their share of through freight from the Mississippi to the At- lantic coast, there are States west of you and east of you, north and south of you, sharp enough not to trammel their commerce with any such legislation. You can if you will enact such legislation as will permit them to take the trade to Buffalo and New York and Baltimore and let the grass grow on the railways of Pennsylvania. And that is just the effect that the fourth section will have. I will not illustrate it at any greater length than Mr. Roberts has already done. The fifth section provides that making an overcharge is an offense. It is making the overcharge, not receiving it, and •: 'i t '■i\ i !1 :*! 14 three times the entire charge is the penalty ; and for any other violations treble the amount of injury suffered. For myself, I do not see the necessity of that distinction You have put up your schedules, and you have fixed your rates, and although you provide that the agent shall not take either more or less than that fixed, you provide that if the railroad overcharge, the man overcharged can recover three times the entire charge. That is one specific point. Then, for any offense other than making the overcharge you provide that he shall re- cover three times the damages suffered. If that damage were twenty times the overcharge, you permit one man to recover that and the other three times, for the offense against which the main features of your bill are aimed. As I have already said, I do not see the reason for that distinction. Having gone over these sections down to the criminal one, I want to call your attention to the fact that with the excep- tion of making the general sections of these three articles of the Constitution indictable and giving treble overcharge to the party who has paid it, you have not enacted a single thing that is not in the act of 1883. I have something yet to say about the mode of trial. Senator Lee : — What do you say about the latter clause of the second section not being in the act of 1883 ? Mr. Scott : — What is that ? Senator Lee : — (Reading) " Persons and property trans- ported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of per- sons and property of the same class in the same direction to any more distant station." Mr. Scott : — I do not find that that is in the act of 1883 and in looking at my notes I find I have that noted in the exceptions. Senator Lee : — You did not make that exception, how- ever, just now. Mr. Scott : — Very well, excuse me for the omission. I have it in my notes, sir, that with the exception of making all these criminal offenses and requiring these cars to be trans- ported over the road, and with the exception of making « I i\ \ >. • 15 treble the overcharge, there is nothing in this act that is not provided in the act of 1883— not one thing. On that subject of receiving and transporting cars, for the corporation which I represent, I have specially the right to say that that provision in the Constitution ought not to be re-enacted into statute law. Why, you cannot make connection unless it is author- ized by the Legislature of Pennsylvania, and I trust that I need not come to any other tribunal than the committee which is before me to have it refused. If a corporation run- ning from the Southern line of Pennsylvania were to reach our road one mile West of Gallitzin Tunnel, and demand con- nection, and the transportation of cars, tonnage, and passengers to one mile East of Gallitzin Tunnel, where they connect with another railroad that is to go to the line of the State of New York, you would scout it out of the Legislature in less time than it would take to give it a first reading. Under this section as it stands a railroad of the character I have indicated might claim such connection. It is well that we have that clause in the charter of the Pennsylvania Railroad Company. I pass, then, to the sixth section. I have already commented to some extent upon the char- acter of that section. Before passing from it, however, I wish to call your attention to the case of the Louisville and Nash- ville Railroad Company against the Railroad Commissioners of Tennessee, reported in the sixteenth volume of American and English Railroad Cases. I have the book here, and I would be glad to read from it, to show you that the law of Tennessee, which did not make the offenses indictable, but did impose upon them penalties such as you have here in the nature of damages for offenses that were even more specific than you have described in your bill, was declared by Judge Baxter, of the United States Circuit Court, and Judge Hammond, sitting with him, to be utterly unenforce- able. They scouted the idea that under legislation which prohibited unfair and unreasonable rates, any company should be amerced in penalties. I should be glad to read if I had time. But I find I am using more of your time than I supposed. V i6 H il ! :;! ■1 Senator Gobin : — In what page and volume did you say that decision was to be found ? Mr. Scott:— Page i6, Vol. XVI. May I read very briefly from this decision ? " We think the property of a citizen— and a railroad corporation is in legal contemplation a citizen— cannot be thus imperiled by such vague, uncertain, and indefinite enactments. The corparations and persons against whom this act is directed, can do nothing under it with reason- able safety. They may take counsel of the commissioners, act upon their advice, and honestly endeavor to conform to the statute. But if a jury before whom they may be subsequently arraigned, shall, in their judg- ment and upon such arbitrary basis as they are at liberty to adopt, conclude that the commissioners misadvised, or that the managers of the accused railroad corporation made a mistake in regulating their charges upon a five per cent., instead of a four per cent, basis, the honesty and good faith of the accused will go for nothing, and penalty upon penalty may be added until the defendant's property shall be gradually transferred to the public. This cannot be permitted. Penalties cannot thus be in- flicted at the discretion of a jury. Before the property of a citizen, nat- ural or corporate, can thus be confiscated, the crime for which the penal- ty is inflicted must be defined by the law-making power. The legislature cannot delegate this power to a jury. If it can declare it a criminal act for the railroad corporation to take more than a ' fair and just return' on its investments, it must, in order to the validity of the law, define with reasonable certainty what would constitute such 'fair and just return.' The act under review does not do that, but leaves it to the jury to supply the omission. No railroad can possibly anticipate what view a jury can take of the matter, and hence cannot know in advance of a verdict whether its charges are lawful or unlawful. One jury may convict for a charge made on the basis of four per cent., while another might acquit an accused who had demanded and received at the rate of six per cent., rendering the statute, in its practical working, as unequal and unjust in its operation as it is indefinite in its terms. No citizen, under the pro- tection of this court, can be constitutionally subjected to penalties, and despoiled of its property, in a criminal or guasi criminal proceeding, under and by force of such indefinite legislation." In this fourth ^section you have undertaken to say that the rates shall be put up and collected in the manner provided for other services rendered in the transportation of property within this State or coming from or going to any other State or foreign country. This is a subject upon which I should be glad to speak at more length than your time will permit. I know the language of the Constitution is in the first part of the bill, but this is your L! ' 17 additional statutory clause after getting through with the con- stitutional provisions that you have quoted and re-enacted. You undertake to impose upon the agents of this company duties with reference to freight going to other States and coming from other States and passing to foreign countries. You re- quire that the rates upon that freight shall be published. You impose penalties for not doing it, and you impose penalties for taking more or less than is fixed upon. I can hardly conceive of any law which more directly contravenes the spirit of the Federal Constitution upon the subject of interstate commerce. Foreign commerce and interstate commerce are. there mutually put under the exclusive jurisdiction of Congress. And all the provisions that relate to that subject show that so far as relates to inter- state and foreign commerce all the States are to be upon an equality — equality is to be enforced between the States just as you are seeking to enforce equality between the citizens in preventing discrimination. Duties shall be uniform— no reg- ulation of commerce that Congress can make can give a port in one State a preference over a port in another State. All this is intended to put the interstate commerce of the country upon the same footing in giving Congress exclusive power over it as foreign commerce. No vessel clearing in one State shall be required to clear, enter, or pay duties in another State. What more cogent provision could be introduced to show the intention that each State should stand upon an equality with reference to interstate commerce ? Now, it will not do to say that the State may legislate as long as Congress has not legislated. I do not care to discuss that at any length, because the case I have quoted disposes of it upon another feature of the bill. But let me ask your attention to the fact that the whole ar- gument about the States being left free to regulate interstate commerce until Congress has taken up the subject, disappears in the light of Congressional legislation. They have taken charge of the subject. Go to the Revised Statutes, and you will find the act of June, 1866, which permits the corporations owning the railroads in the several States of the Union to * i8 unite together for the purpose of making through channels for transportation, to run them by steam, and collect rates of freight and fares upon them, the act regulating the trans- portation of live stock from State to State, and the several acts relating to transportation of merchandise in bond. How much more comprehensively could they have taken charge of it ? The very fact that they did not attempt to fix rates, leaves the companies free to fix those rates, unless Congress shall take one step farther and do it, which, as you are well aware, on several occasions, they have recently essayed to do, and which you asked them by your resolution of 1878 to do. Do you say that this bill does not regulate interstate commerce ? How much more effectually can you regu- late it, than to provide that the rates on interstate commerce shall be fixed by the companies ; that they shall collect only those rates, and shall be indictable and pay penalties if they collect more ? Mr. Roberts has told you how this will affect the interstate commerce of Pennsylvania. If the proportionate rate which a cargo from Chicago to New York will cost for trans- portation through Pennsylvania is less than the local rate upon trade, do not the very terms of your bill make every officer of the road who collects that rate indictable? It is less than the schedule rate if they take their proportion at all; and, if it is more, it is just as bad; and, in either case, as Mr. Roberts has pointed out to you, it is simply a means of giving to the port of Baltimore and to. the port of New York by a regulation of fares on the roads of Pennsylvania a pref- erence which the Constitution says Congress is not permitted to do. The same book to which I have referred, on pages 23, 25, 32, 33, 34, and 35 — they are entirely too many to read — take up the features of that Tennessee law which placed the power of fixing rates in a commission appointed by the Legislature of that State, and which was so worded that it gave them power, as yours proposes to do, over commerce coming into and passing out of the State. In a very able opinion Judge Hammond, reviewing all <^\ 19 the cases, including the Granger cases, shows conclusively that such an attempt is a regulation of interstate commerce, and one which, under the terms of the Constitution of the United States, is unconstitutional and void ; and in view of the two principles enunciated in that case — the one opinion on the criminal feature of the law being delivered by the circuit judge, and the other by the district judge — they restrained the Railroad Commissioners of Tennessee from putting that act in force, and said to them: "You shall not collect penalties under it ; you shall not regulate these rates upon interstate commerce." Gentlemen, these are features of this bill which I have ■deemed it necessary to call your attention to. I pass now to one which I have not heretofore considered. And in doing that I wish for a moment to say that I am not talking as the attorney of the Pennsylvania Railroad. I am here as a citizen of this Commonwealth with Scotch-Irish blood in my veins, and I want to enter my protest against such a blot as the seventh section of this bill being put upon the reputation of the Commonwealth. Railroad officers are not sinners above all men ; and if they are sinners, they are entitled to the common protection of all men who are charged as criminals. I have read no attempt at legislation that contravenes so many of the well-estab- lished principles of Anglo-Saxon liberty as the seventh sec- tion of this bill. What does it provide ? I will not say a word about the civil penalties. You may do as you please about them. But when you undertake to run and regulate the railroads of this Commonwealth through the Court of Quarter Sessions I am here to protect the rights of large bodies of citizens who are engaged in the railroad business. You first provide that a failure to do anything required is an indictable offense; any doing of a thing prohibited is an indictable offense, pun- ishable by a fine of ;^2500 and imprisonment, and then the accused party is to be tried, how ? Whenever any man who feels aggrieved thinks proper to lodge information in any county of this Commonwealth through which the road runs. I ( 20 or in which it has an office or branch, he can do so, and there the indictment is to be tried. Now, Mr. Chairman and Gentlemen, we, at the end of a long war, in which this nation was baptized in blood, put into the Constitution of the United States a provision that no State shall pass any law which shall deny to its citizens the equal protectio7i of the laws. The Constitution of Pennsylva- nia provides that trial by jury shall remain as heretofore, and that every man charged with a criminal ofifense shall have a right to a speedy trial by a jury of the vicinage. Those two provisions which now stand in the declaration of rights, as part of the' general, great and essential principles of liberty and free government, stood in the ninth article of the Constitution of 1790 just in the language in which they stand to-day ; they stood in the Constitution of 1838 just in the language in which they stand to-day ; and when the Legislature of this Commonwealth passed the act in 1872 for the convention to form a new Constitution, it wrote into that act — and you will find it if you look at it — that they would not commit to any constitutional convention the right to change those declara- tions contained in the sixth and ninth sections of the ninth article, which protected the liberty of citizens. They withdrew that whole article from the Constitutional Convention of 1874, and declared it should remain " inviolate forever." Further,, it is declared, in that Constitution : The Legislature shall not change the venue ** in civil or criminal cases." To make it sure, the courts of the Commonwealth only have that power. In the light of these principles, this bill violates the four- teenth amendment of the Constitution of the United States by singling out one class of citizens — railroad and canal officers — and making them indictable in any county of the Common- wealth into which the road runs, whereas every other citizen is entitled to a trial by jury in the county in which the offense is committed. It violates the spirit of the other provisions by changing the venue in every one of those cases, usurping the power of the court. If there be reasons why a civil or criminal case should not be tried in a county in which it is brought, let it go to the 21 / courts and let them dispose of it. But here, under this legis- lation, if an agent at Harrisburg makes an overcharge on freight going to Lancaster or Philadelphia, you take him to Erie or Clearfield or Pittsburgh and make the information against him there, and take him into court and try and con- vict him there. Gentlemen of the Committee, I have said thus much ; I could hardly say less on the subject. I trust that whatever legis- lation there is to be with reference to common carriers, railroads,, canals, or any other carriers of the Commonwealth, their officers will never be singled out as Ishmaelites, criminals not entitled to the common rights of trial by a jury of their neighbors, if you do think it wise to make these offenses indictable. It is not wise. Overviolent laws always defeat themselves. A reasonable law regulating railroad companies, any reasonable law that will meet with the approval of the community, will be cheer- fully acquiesced in by the railroad companies. They are not law-breakers ; they are not heartless ; they do not wish to bring down the odium of their fellow-men upon themselves, but they do protest against being singled out as a class, at the sacrifice of principles imbedded in the constitutional law of both the nation and the State. They hope that a law which upon its face is intended to prevent discrimination will not, in the most odious form in which it is possible to make it,. enact discrimination against them. Senator Biddis : — Do you think that under the terms of the sixth and seventh sections, in case a warrant were issued by a magistrate, this being a misdemeanor, the defendant could be arrested in another county and taken from that county without the backing of warrant required by a magis- trate of the county, as is now required ? Mr. Scott : — Well, on that subject I will say that unless- you could find a justice of the peace who would be wise enough to undertake to defy this act of the Legislature and say that it was contrary to the provisions of the Constitution,, the constable who got the warrant from the justice would arrest and take the man before him. Senator Biddis : — Without having it backed ? MBMi 22 Mr. Scott : — Without having it backed. Senator Biddis : — It has seemed so to me. Mr. Scott : — He might do so, although the plain citizens of this Commonwealth who know the oath that grand ju- rors take, know that it requires them to inquire only as to offenses committed in the body of the county. But this would require a jury in Erie to inquire as to offenses com- mitted in Philadelphia, or anywhere else in the State where the road ran. Senator Biddis : — Is there any parallel case in this Com- monwealth in which that could be done ? Mr. Scott : — I hope not. I know that where a man steals a horse in one county and rides him into another, you may indict him in either. I know that when a child is begotten in one county and born in another, you may indict in either. But if freight be transmitted from Harrisburg, and go to Lan- caster county, under the bill, the agent may be indicted in any one of the counties between Dauphin and Allegheny. It is totally subversive of the old Anglo-Saxon principles of lib- erty and of the right of trial by jury. Senator Biddis : — Then you do not think the words " ap- propriate legislation " warrant a criminal penalty at all ? Mr. Scott : — You mean that portion of the Constitution which requires appropriate legislation to enforce it? Senator Biddis : — Yes ; the language is " appropriate leg- islation." Mr. Scott :— Well, I do not say that, if the Legislature in its wisdom deem it wise to make those things criminal offenses that have been heretofore considered the subject of civil regu- lation between business men, they have not the power to do so ; but I do say that when they undertake to make them criminal offenses, they ought not, in doing so, to violate in the act one provision of the Federal and four provisions of the State Constitution. I SENATE FILE, No. 114, SESSION OF 1885. AN ACT To carry into effect the provisions of the first third and seventh sections of the seven- teenth article of the Constitution of this commonwealth and to provide penalties for the violation thereof Section i Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met and it is hereby enacted by the authority of the same That all railroads and canals shall be public highways and all railroad and canal com- panies shall be common carriers Any association or corporation organ- ized for the purpose shall have the right to construct and operate a railroad between any points within this State and to connect at the State line with railroads of other States Every railroad company shall have the right with its road to intersect connect with or cross any other rail- road and shall receive and transport each the others passengers ton- nage and cars loaded or empty without delay or discrimination Section 2 All individuals associations and corporations shall have equal right to have persons and property transported over railroads and canals and no undue or unreasonable discrimination shall be made in charges for or in facilities for transportation of freight or passengers within this State or coming from or going to any other State Persons and prop- erty transported over any railroad shall be delivered at any station at charges not exceeding the charges for transportation of persons and property of the same class in the same direction to any more distant station but excursion and commutation tickets may be issued at special rates Section 3 No discrimination in charges or facilities for transportation shall be made between transportation companies and individuals or in favor of either by abatement drawback or otherwise and no railroad or canal company or any lessee manager or employe thereof shall make any preferences in furnishing cars or motive power Section 4 That each railroad company shall adopt and at each depot where freights are received or delivered shall keep posted up for public inspection in at least two places schedules which shall plainly state First The different kinds and classes of freight to be carried there- from Second The different places to which such freights shall be carried Third The conditions under which allowances or advantages in any form may be granted upon shipments made or services rendered (23) i» ,N 24 Fourth The charges by freight rates or tolls or otherwise for the furnishing of cars or motive power or for the moving carrying expedit- ing receiving delivering forwarding transferring loading unloading storing or hauling of property or for other services rendered in the transportation of property within this State or coming from or going to any other State or foreign country and the bills for such service shall show what part of the charges is for moving or carrying and what part is for the other facilities or services enumerated as aforesaid Such sched- ules may be changed from time to time as hereinafter provided but no such schedules shall be changed in any particular except by the substitution of another schedule containing specifications above required which sub- stituted schedule shall plainly state the time when it shall go into effect and copies of which prepared as aforesaid shall be posted as above provided at least two days before the same shall go into effect and the same shall remain in force until another schedule shall as aforesaid be substituted The said schedules shall avoid undue and unreasonable discriminations and it shall be unlawful for a railroad company to charge or receive more or less compensation for services rendered than shall be specified in said schedules Provided That nothing contained in this act shall be construed to require the railroad company aforesaid to post its charges for receiving or delivering freight or other services incidental to terminal facilities in any other depot than that to which said charges may apply Fifth It shall be the duty of each railroad company to file or cause to be filed with the Secretary of Internal Affairs a copy of each schedule posted as required in this section and this shall be done within fifteen days after posting as aforesaid and it shall be the duty of the said Secretary of Internal Affairs to file and preserve the same as a part of the record of his office Section 5 Any railroad company making any overcharge for services rendered as enumerated in this act shall for each overcharge be liable to pay to the party thus overcharged a sum equal to three times the entire charge thus made and for each violation of any other provision of this act be liable to the party injured for damages treble the amount of the injury suffered In actions brought as aforesaid damages sustained in the period of a year or part of a year may be declared upon or com- plained of generally and as one separate cause of action and so whether such damage be sustained in one year or different years and such sepa- rate cause of action may be joined in one action But nothing contained in this act shall be construed to exempt any railroad company from any •duty liability or penalty imposed by law Section 6 Any director or officer of any corporation or company act- ing or engaged in any of these matters and things enumerated in this act or any receiver or trustee lessee or person acting or engaged as afore- said or any agent or employe of any such corporation or company receiver trustee lessee or person aforesaid or of one of them alone •or with any other corporation company person or party aforesaid who ^v t t' 25 shall willfully do or cause or willingly suffer to permit to be done any act matter or thing in this act prohibited forbidden or declared unlaw- ful or who shall aid or abet therein or who shall willfully omit or fail to ■do any act matter or thing in this act required to be done or cause or willingly suffer or permit any act matter or thing required by this act to be done not to be so done or shall aid or abet any such omission or failure or shall be guilty of any violation of this act or aid or abet therein shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than two thousand dollars and be liable to an imprisonment not exceeding six months for each and every offense Section 7 Any of the actions for damages and any of the indictments authorized for misdemeanor by this statute may be commenced and prose- cuted to judgment and conviction in any county in this State in which the railroad or canal company that is sued or the official director or em- ploye whereof is indicted may exist or be or hath a branch railroad a branch canal or an office and process both mesne and final may issue from the proper courts of such county to any other county or city of this State and have like force as if within the county in which such suits are brought or indictments be pending In the trial of such suits for dam- ages or indictments for misdemeanors the jury shall in all cases under the instructions of the court determine whether the damages sued for have been sustained or the offense for which the indictment is being tried hath been committed Section 8 That nothing in this act shall be construed to prevent property of or for the United States or this Commonwealth or for charitable pur- poses or for exhibitions or public fairs from being carried or transported at lower rates than for the general public Section 9 All acts or parts of acts inconsistent herewith are hereby re- pealed 2— Sen No 114 COLUMBIA UNIVERSITY LIBRARIES This book is due on the date indicated below, or at the expiraUon of a definite period after the date of borrowing, as provided by the library rules or by special arrangement with the Librarian in charge. DATE BORROWED DATE DUE DATE BORROWED DATE DUE cas(a8i)iooM | t'v •>;: "l^H m •4 r." ■ m ... "If- ^■■\ 1;. -■ - If .♦.';■ l':' ■ '■'""■■ '**- tJi '^'WnH 1 ■'■'' M '*,^HHHHH| :»«■■ GAYLAMOUNT PAAAPHLET BINDER Monufoctuiwd by GAYLORO BROS. Inc. SyrocuM, N.Y. Stockton, Colli. COLUMBIA UNIVERS TY LIBRARIES 0041407962 D530.7 So84 D530»7 Scott, John Sc84 Remarks of Mr. John Scott, general solicitor Pennsylvania RR.Co, \ ■ v;. I'M m END OF TITLE