CHAPTER VI

OBSTACLES IN THE WAY OF REFORM

AMONG the causes operating as deterrents to industrial reform, there are four which are prominent and which may be stated as follows: first, that which exists in the insufficiency of the jurisdiction and powers of the established judicial tribunals; second, the opposition of the corporation that is immediately to be reformed; third, the organized character of the mischiefs in question; and fourth, the state of public opinion with reference to these mischiefs,— the failure on the part of the public to realize them, and therefore to devise the necessary remedies. These I shall proceed to examine in this and the following chapter.

The creation of the Inter-State Commerce Commission, viewed from a legal standpoint, is in many respects an unique piece of legislation. It may also be said to indicate a dawning perception that existing constitutional guards are not altogether sufficient to meet all of the necessities of reform. While the establishment of this Commission thus marks an initial era and indicates a growing interest in the question of reform, it cannot be regarded as any thing more than

tentative. Strictly considered, it owes its being to a strained construction of that clause of the Constitution which provides for the regulation of commerce between States, since this clause was ob viously intended only to extend the federal authority to the control of imports and duties, and, it may be, to such further control as is necessary to preserve the freedom of the water-courses. It certainly seems like a strained construction to assume that the constitutional power conferred upon Congress, of regulating inter-State commerce relations, will warrant the controlling of commerce between the States; and not only this, but that Congress may del egate this power to a permanent commission, and thus confer upon that commission the authority for controlling the rates and charges of common carriers, and all the details by which their business is conducted. It can hardly be conceived that it was the intention of the framers of the Constitution to enable Congress to confer such unbounded supervision upon a permanent commission. This does not imply that such supervision is not in present conditions necessary, but it does imply that these conditions had no existence at the time of the formation of the Constitution, and it is not possible that they could have been thought of. There was nothing at that time which indicated that small bodies of corporate officials would arise in the progress of railway development, having direct interests, acting under centralized and often secret authority, and to a large

Nor was it

extent necessarily controlling commerce. foreseen that in such a condition such organizations of officials, as pointed out by Mr. Spencer, would possess an immense advantage over that incoherent public which is brought to act unitedly only under strong provocations; nor that in their progressive growth they would become less and less resistible by this general public.

But granting the power of Congress over the matter, and the right to delegate this authority to a commission, the question arises, what is the quality of this Commission by the terms of the enactment creating it? It cannot be called either a Common Law or a Constitutional Court, for, although it is given power to inquire, "to investigate," and to make report in writing, "including findings of fact, together with its recommendations," all of which power is judicial, it yet lacks jurisdiction to determine controversies between litigants, and to enforce the recommendations which it is authorized to make. Not being a court, it cannot have the powers of a court, except in so far as they are expressly delegated to it by the act of its creation; and therefore its jurisdiction is deficient in comprehensiveness. It lacks not only the power of enforcing its findings, but also the power of thorough investigation, since it cannot compel the production of all that is necessary for such an investigation. And as the questions most likely to come before such a tribunal are of a secret nature, in which identical interests are adroitly concealed in

very

separate and seemingly independent corporate structures, where such concealment is made for the purpose of evading investigation, this inadequacy is especially unfortunate. In the case of another commission, lately appointed by Congress, which was vested with powers as great as those conferred upon the Inter-State Commerce Commission, the effort made through an application to the United States Circuit Court to bring forth facts from an unwilling witness was unsuccessful. The Court held not only that the Commission had not the power, but that it was not in the power of the Court itself, to perform the service for the Commission.'

1In the matter of the application of the Pacific Railway Commission to the Circuit Court of the United States for the Northern District of California, decision rendered August 29, 1887. (Reported in 32 Federal Reporter, p. 241.)

This was an application by a commission created by Congress for the investigation of books, accounts, and methods of the railroad which received aid from the United States, for an order requiring a witness to answer certain interrogatories propounded to him. The act empowered the Commission “to require the attendance and testimony of witnesses, and the production of all books, papers, agreements, contracts, and documents, relating to the matter under investigation, and to administer oaths; and to that end it may invoke the aid of any court of the United States, in requiring the attendance of witnesses, and the production of books, papers, and documents." It further declares that any Circuit or District Court of the United States, within the jurisdiction of which such inquiry is carried on, may, in case of contumacy or refusal to obey a subpœna issued to any person, issue an order requiring such person to appear before said commissioners, and produce books and papers if so ordered, and give evidence touching the matter in question; and any failure to obey such order of the Court may be punished by such Court as contempt thereof." And also that "the claim that any such testimony or evidence may tend to criminate the person giving such evidence, shall not excuse such witness from testifying, but such evidence or testimony shall not be used against such person, on the trial of any criminal proceeding."

If it be the function of courts to determine exact justice between man and man, the essential prerequisite for this is the power to acquire every fact which is necessary for that determination. If, in a larger sense, it be the function of any power in a free state to preserve as far as possible unimpaired the individual freedom of the citizen, such a power must be capable of reaching any insidious secrets by which that freedom is threatened or attacked. The very preliminary for the reform of any existing evil, or for the restraint of any aggressive attempts by the holders of any franchise, is the clear power, somewhere lodged and always ready for exercise, of searching

The witness, Mr. Leland Stanford, president of the Central Pacific Railroad Company, refused to answer the question whether any part of the sum mentioned in certain vouchers had been paid for the purpose of influencing legislation, and the commissioners applied to the Court for an order under the act of Congress.

Mr. Justice Field, in delivering the opinion of the Court, denied the motion. Among the reasons set forth for the denial is that: “The Pacific Railway Commission, created under the act of Congress of March 3, 1887, is not a judicial body; it possesses no judicial powers; it can determine no rights of the government, or of the companies whose affairs it investigates. Those rights will remain the subject of judicial inquiry and determination, as fully as though the commission had never been created."

Under the authority of the decision neither Congress nor any investigating commission appointed by it has power to assume judicial functions, or to punish witnesses for contempt when they refuse to answer interrogatories propounded, calling for books or papers.

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The Court further says: The law provides for the compulsory production, in the progress of judicial proceedings, or by direct suit for that purpose, of such documents as affect the interest of others; and also, in certain cases, for the seizure of criminating papers, necessary for the prosecution of offenders against public justice; and only in one of these ways can they be obtained, and their contents made known, against the will of the owner." (Citing Boyd vs. United States, 116 U. S., 616; and Kilbourn vs. Thompson, 103 U. S., 168.)