NUMBER OF CASES IN WHICH CORPORATIONS, ETC., OTHER THAN RAILROADS, CAME UNDER THE SUPERVISION OF STATE RAILROAD COMMISSIONS, 1890-1902-Continued.

1 Deduction due to abolition of Kansas Commission. 2 Deduction due to abolition of North Carolina Commission. This supervision, however, was conferred upon Corporation Commission.

With regard to the relation of commissions to other agencies of government, especially to the executive and judicial departments, it may be said that in almost all the States commissions may "call upon" the attorney-general, district attorneys, and other similar officials to conduct proceedings for them. The character of this authority ranges from a mere request to a positive order. In a number of cases commissions may require the services of sheriffs in the serving of their processes and orders.

So far as the relation of the commissions to the courts is concerned, the statement is usually found that the findings of commissions shall be prima facie evidence in all legal proceedings. The rates established by all of the strong commissions are made prima facie reasonable and just. In addition the laws of Georgia and South Carolina declare that such rates shall be "sufficient evidence;" in California they are declared to be "conclusive evidence;" and in New Hampshire the statement is made that the commission's rates shall be "binding upon the proprietors of railroads."

A provision which has crept into the laws of a number of States is one which requires the railroad commission to investigate interstate rates charged by railroads, with respect to their justice as regards the citizens of that State. In case the railroads persist in charging unreasonable rates or rates to the disadvantage of citizens of that State, the State commission is required to present the case to the Interstate Commerce Commission. In 1890 such a law existed in Florida and Georgia. Since then it has been included in the commission laws of Texas, North Carolina, Missouri, Kentucky, and Tennessee.

Composition of Railroad Commissions.-Part B of Table II is concerned with the subject of the composition of railroad commissions. The first two columns give the years in which both the original and the present commissions were established in each State. By reference to these columns a few facts of interest may be observed. No strong commission existed before 1871. Of the twenty-seven established since that date, all but ten have been strong commissions, and of the ten weak commissions five have since been given power over rates. This statement includes Virginia, whose weak commission will continue until the new constitution goes into effect in 1903. The commissions before 1871 were all in New England, Ohio, and New York. Since then they have been established in the South, the middle West, and the far West.

The favorite number for State railroad commissioners is three, this being the number for which the law provides in twenty-six cases. In six States-Colorado, Ohio, Michigan, Rhode Island, Virginia, and Wisconsin-the appointment of one commissioner only is authorized. In Arizona the commission consisted of four members and in Nebraska the ex officio Board of Transportation was composed of five State officers.

It is suggestive to note a tendency to change the manner of appointing railroad commissioners during the past twelve years. In 1890 the general rule was that commissioners should be appointed by the governor. By 1902, however, election by the people had become the most common method of choice. The following statement shows the development of the law in this particular:

These changes were accomplished by alterations in the laws of Kentucky, Minnesota, South Carolina, South Dakota, and Texas, and by the fact that the majority of the new commission laws provided for election by the people.

The commission laws sometimes provided for the method of choosing the presiding officer, and in the majority of cases where such a provision is made the choice is to be made by the commission itself.

So far as the term of office of railroad commissioners is concerned, the facts presented disclose something of a tendency toward the longer term. The following summary presents the figures which substantiate this statement:

Here, again, these changes may be explained by alterations in the commission laws of Kentucky, Minnesota, South Dakota, and Texas, and by the fact that most of the new commission laws provided for the longer term.

Nearly all of the commission laws contain some provisions as to the qualifications of members of the board. In almost every case the provision is made that the commissioner shall not be financially interested in any railroad corporation or hold any position as officer or agent in such corporation. A few States, also, have established qualifications as to political party, profession, or age. In a number of cases railroad commissioners are required to file bonds for the faithful performance of their duty, the amount of these bonds ranging from five thousand dollars to twenty thousand dollars. In most cases they are forbidden to accept gifts, gratuities, or favors for themselves or friends from railroad companies; they are required to take an oath of office, and are permitted to ride free upon all railroads while in the discharge of their official duty and to take with them persons in their employ. With regard to the number of officers, assistants, and clerks allowed, a study of the tables discloses the widest range in the laws of the various States. All of the commissions have a secretary or clerk, except in Rhode Island, Michigan, and Wisconsin, where the commissioners have deputies. In the case of Arizona and New Hampshire

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the clerk is one of the commissioners, while Nebraska has three secretaries. In addition the laws of many States provide for experts, also for stenographers, bailiffs, assistant clerks, and other assistants. The amount of assistance allowed varies from States in which but one clerk is permitted to such a State as Massachusetts, which is empowered to appoint a clerk, an assistant clerk, an accountant, an inspector for each one hundred miles of railroad, and a special expert to appraise the value of railroad property before an increase in the capitalization of the road. Salaries of Commissioners.-Part C of Table II is concerned with the salaries of railroad commissioners and the method of payment. Here, again, the widest difference may be seen, salaries of commissioners ranging from one thousand dollars to eight thousand dollars per The salaries allowed to the secretary or clerk also range from eight hundred dollars to six thousand dollars. The average of all commissioners' salaries is perhaps not much less than three thousand dollars. In two States, Arizona and Vermont, the commissioners receive no regular salary but are allowed a per diem for the time actually engaged in the discharge of their duties. The wide range in the amount of salaries may be more clearly perceived by contrasting the case of North Dakota, where the commissioners receive one thousand two hundred dollars apiece and the clerk one thousand dollars, with the case of Massachusetts, where the commissioners receive four thousand dollars apiece, the clerk two thousand five hundred dollars, the accountant two thousand five hundred dollars, the inspectors two thousand dollars each, and the assistant clerk one thousand two hundred dollars; or the case of New York, where the commissioners receive eight thousand dollars each, the secretary six thousand dollars, the accountant three thousand dollars, each inspector three thousand dollars, and the marshal one thousand five hundred dollars.

The method of payment of the salaries of commissioners is also stated in the statutes. In almost all cases salaries and other expenses are paid by the State. In a few cases, however, the total expenses of the commission are apportioned among the railroads, the method of apportionment varying in the different States. In Alabama and Massachusetts the apportionment is according to "gross earnings;" in New Hampshire, according to "gross receipts;" in Maine, according to "gross receipts from transportation;" in Virginia, according to "gross income;" in Ohio, according to "gross earnings from operation;" and in New York, one-half in proportion to "net income" and one-half in proportion to "length of line and branches." In South Carolina until 1898 the expenses of the commission were apportioned among the railroads according to "gross income proportioned to mileage in the State," but by the law passed in 1898 express and telegraph companies were required to share in the payment of expenses according to their "gross earnings." Rhode Island provided originally for payment by the State, but by the law of 1900 altered the method to payment by railroads, one-half according to "mileage in the State," and one-half according to "gross receipts proportioned to mileage in the State." Connecticut in 1890 apportioned the expenses of the commission among the railroads according to the length of the main line, but in 1901, provided for an apportionment among railroads and street railroads according to their valuation for purpose of taxation. It is worthy of remark, however, that all of the commission laws enacted since 1890 provided for payment by the State. In only one case, that of Rhode Island, has the method of payment by the State been abandoned for the method of apportionment during the past twelve years.

Duties of Railroad Commissions.-Table III is devoted to the subject of the duties which have been imposed by statute upon railroad commissions, Part A dealing with supervisory duties and Part B with duties in regard to reports. The number of provisions of law respecting supervisory duties is very small. This is no doubt partly due to the fact that many functions which may be considered duties of railroad commissions are provided for under the guise of powers. Only duties of a general character are apt to be expressed as duties. For instance, many States impose the general duty to hear and investigate complaints and to discover violations of law. In the accomplishment of this purpose many States require their commissions to inspect railroads, or to visit each county in which a railroad is located, often specifying the frequency of such inspections. A number of States, also, require their commissions to notify the railroads of

violation or neglect of law and also of desirable repairs, improvements, or changes in the method of operation.

The commissioner's duties in regard to technical matters-construction, maintenance, and operation are in only a few cases specifically stated. The most frequent provisions of this class are those which require the investigation of accidents and the inspection of roadbed, of bridges, and of equipment. As respects the subject of business management a number of States require their commissions to inspect the financial management, books, papers, etc., of railroads, and to discover violation of laws respecting discrimination and extortion. A few States require regular meetings, and a number of commissions are required to keep a record of their findings and orders.

Part B of Table III deals with the commissions' reports. All commission laws require the boards to make public reports. These reports are made annually in all but five States, and in the majority of cases they are made to the governor, although in nine States they are to be addressed to the legislature. In a number of cases the details to be reported upon by the commission are specified in the law, and in all but a few cases the commissions are required to make recommendations as to new legislation or as to amendment or revision of the railroad statute laws of the State.

Powers of Railroad Commissions.-Table IV deals with the powers of railroad commissions. These powers of railroad commissions are defined in greater or less detail in all of the commission laws. The principal points covered are usually the power to hear and investigate complaints, to try cases, to summon and examine witnesses, to administer oaths, to require the production of books and papers, to make findings or decisions or recommendations, and to use a seal. Some States permit their commissions to determine their own procedure, and in twelve cases the commissions have been given the powers of courts of law to issue subpoenas and punish for contempt.

The most significant point in this connection pertains to power of commissions over rates. It has already been remarked that the rate-making function of railroad commissions has been widely extended during the past twelve years. The increase in the number of strong commissions, both by the establishment of new boards and the transformation of weak into strong commissions has been noted. It remains, however, to inquire along what particular lines this general development has taken place. An examination of the statutes of the various States discloses the fact that the laws concerning powers over rates have been of two sorts. The most common form of the law is one which not only confers the power but imposes a duty as well. It provides that the commission "shall make for each railroad in the State a schedule of reasonable rates," either absolute or maximum, and shall revise the same from time to time. The other form is less rigid, and the wording varies considerably, but the substance of the law always is that the commission may, either upon complaint or on its own motion, investigate any rates charged by any railroad; may issue orders requiring the railroad to alter any such rates; and may modify its orders from time to time. The development of the law under these two forms may now be stated in detail.

The first of the forms here mentioned has been much the more common; especially has it been the form of the laws under which most of the recent commissions have been established. In 1890 seven states-Alabama, California, Florida, Georgia, Illinois, Mississippi, and South Carolina-had enacted a law in this form, and their lead was followed in the acts establishing the Texas (1891), North Carolina (1891), Tennessee (1897), Louisiana (1898), and Arkansas (1899) commissions, as well as in the acts of 1891 and 1897 conferring rate-making powers upon the commissions of Oregon and South Dakota, respectively. Moreover, in the revision of the North Dakota commission law by the legislature of 1897 the same form was adopted. In no case was it abandoned, except in connection with the abolition of the Florida, Oregon, and North Carolina commissions in 1891, 1898, and 1899, respectively, and in the case of Florida the same form was adopted when the commission was reestablished in 1897. Thus, while in 1890 this form of law prevailed in seven States, in 1902 it was operative in thirteen. In every case the power has

extended to freight and passenger rates, and in a number of cases to charges for cars and other services.

The second form of the law-the less rigid form-prevails less widely. In 1890 eight States had enacted such a law. In Kansas, Maine, Minnesota, Missouri, Nebraska, and North Dakota, the law conferred the power to make absolute rates, while in Iowa and New Hampshire it applied to maximum rates only. The power extended to freight rates in all eight States, and to other rates and charges, in five States. A few changes of importance were made during the twelve-year period. In 1891 Georgia enacted a law authorizing the commission to fix maximum storage charges. In 1893 the word "maximum" was stricken out of the New Hampshire law, and its commission was thereby empowered to fix absolute rates. In 1896 South Carolina granted power

to its commission to alter the maximum passenger fare established by law for any railroad. In 1897 the legislature of North Dakota, in revising the whole commission law, abandoned this form of law entirely and adopted the first form. The Kansas and Nebraska commissions, which had exercised this form of power over rates, were abolished in 1898 and 1901, respectively, but upon the reestablishment of the Kansas board in 1901 the same provisions were reenacted. The only notable addition to the number of commissions operating under this form of law was in 1900, when the legislature of Kentucky conferred this kind of power upon its hitherto weak commission. The net result of the legislation of the period was to leave the number of States having this form of law one less in 1902 than it was in 1890, except that five commissions still possess the power over passenger rates. In some cases the grant of this power has been given with the limitation that it is to be exercised only upon complaint or petition. In 1890 this limitation applied in four States Kansas, Maine, Minnesota, and Missouri; in 1893 it was adopted in New Hampshire, and in 1897 it was abolished in North Dakota. In the case of Kansas it disappeared with the abolition of the commission in 1898, but was revived with its reestablishment in 1901. Thus in 1902 it still prevailed in four States-Kansas, Maine, Missouri, and New Hampshire.

The laws of a number of States have also specifically conferred upon the commissions authority to make joint rates between any points in their respective States. There were five such laws in 1890—in Georgia, Iowa, Minnesota, Mississippi, and North Dakota--but the number has been increased during the period, by enactments in Texas (1891), South Carolina (1892), Florida (1897), South Dakota (1897), and Arkansas (1899), while it has been diminished by the revision of the North Dakota law in 1897. There are, then, at present nine commissions with power to make joint rates for freight, several of them being also empowered to make joint rates for other kinds of traffic. In several instances—in Florida, Georgia, Iowa, Mississippi, and South Carolina-the commissions have also been authorized to determine the division of the proceeds of the joint rates among the railroads sharing in the carriage, and in three others-Minnesota, South Dakota, and Texas-to determine the division if the railroads are unable to agree upon it. In a few States the commission may make joint rates only upon petition or upon petition when the railroads have failed to do so. This has been the rule in Iowa and Arkansas, and was so in Minnesota until 1897. The South Dakota law of 1897 also included the requirement of a petition, and is the only one which has confined to the making of maximum rates the commission's power as to joint traffic. It may be added that the Alabama commission may “recommend” joint rates, while the Missouri commission is required to see that joint schedules (for freight) are reasonable and just."

The details which have thus far been presented are given numerical expression in the following table, which exhibits the number of States in which each kind of law was in force in 1890 and in 1902, together with the number of States in which changes took place during the intermediate years.

Except in the case of switching charges in Iowa.

2 Though in Missouri the commission could make rates if the railroads failed to post or file their schedules as required by law.