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In the case of doctrine after doctrine and rule after rule—is it not written in the book of the history of the Common law-our judges have floundered about for a few centuries, shutting their eyes to the light, shooting wide of the mark, guessing as best they could, conning their precedents and trying through the interpretation of one man's nonsense by another man's nonsense to reconcile the decisions more than to decide the cause, doing wrong by rote, working injustice to an uncounted multitude of unhappy litigants, doing, however, only wat they were compelled to do in the administration of the judicial system imposed upon them, and then, when quite out of breath in the mad chase after a case in point, finally fetching up in the clearness and justice of the Civil law rule on the subject.
The truth is that this process of borrowing from the Roman Law has been carried on for many centuries and has been effected not only by text writers and judges but by legislatures as well. At certain times it has been more extensive than at others. Leaving out Vacarius, who first formally introduced the study of Roman Law in England, the most prolific single borrower was Bracton, and if his famous treatise105 had, like its even more celebrated Spanish contemporary, “Las Siete Partidas,” been actively supported by the reigning monarch, England, like Spain, might have become a civil law country.106 But, although that result did not follow, neither did Roman contributions to the English law cease with Bracton. They have continued, through one or more of these agencies down to our own day and bid fair to continue, through at least the legislative agency, for an indefinite period in the future. Surely then no student or practitioner of the Anglo-American legal system who hopes to be well equipped can afford to ignore the Roman Law. For the modern methods of legal study are mostly the application of a maxim emphasized by one of the
105 “De Legibus et Consuetudinibus Angliae." Bracton.—“It is highly probable that if many of his fellows on the
bench had shared his bent, romano-canonical jurisprudence would have become a 'subsidiary law' in England.” Pollock & Maitland, History of the English Law (2nd Ed.), I, 207.
107 of the common law and selected as the motto of the first case book,108;
Melius petere fontes, quam sectari rivulos.
I shall have accomplished my purpose if I have shown that Roman law is one of our principal fontes.
THE INTERSTATE COMMERCE COMMISSION HISTORY, FUNCTIONS, AND PROCEDURE
By EMMA C. JOHNSON.
NOTE–Miss Johnson has had sixteen years of active railroad service, in the transportation and traffic departments. Was in Division of Operation, U. S. Railroad Administration during entire period of Federal control of railroads; subsequently Assistant to Manager, Public Relations Section, Car Service Division, American Railway Association. Is now engaged in interstate commerce work in this city.
Commerce between the states is a matter of national regulation. The interstate commerce clause of the Constitution guarantees the right to ship merchandise from one state into another, and protects until the termination of the shipment by delivery at the place of consignment. The purpose of the Federal Constitution in committing to Congress power to regulate commerce was to protect commercial intercourse from individous restraints, to prevent interference through conflicting or hostile state laws, and to insure uniformity in regulation.
It is to be doubted whether there is any other form of litigation so extensive, and at the same time so technical, complicated, and involved, and calling for such a wide knowledge of commercial and economic affairs, as does the practice of interstate commerce law. Not only is it varied, but extremely interesting. Perhaps it is the element of chance that enhances the interest, for there is little by way of precedent in interstate commerce regulation. A general statement of the scope of the work and the extent and variety of its delegated powers may be helpful to students by way of informing them of the potentialities in this form of practice. A successful commerce lawyer must not only be thoroughly informed concerning the statutes under which the Commission functions; he must be very familiar, as well, with the previous reports and conclusions of that body. Statistical matter must frequently be prepared, and an ability to clearly and concisely analyze such data in the presentation of evidence and preparation of briefs is important. An understanding of the railroad growth and development of the country, and of the past and present
1 Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 378. • Vance v. Vandercook, 170 U. S. 438. Pennsylvania v. West Virginia, 262 U. S. 553.
financial situation and operation of the railroads, is also helpful to an adequate presentation of cases before the Commission. Perhaps the most disconcerting element in this form of practice is the long delay which ensues between the time of bringing the complaint and the final disposition by the Commission or the Courts. Sometimes this is a year, and sometimes two or three years.
It will be impracticable within the scope of this paper to cover all of the subjects over which the Commission has jurisdiction.
History and Development.
The original act to regulate commerce was passed and became a law on February 4, 1887. Prior to that time federal regulation of commerce was accomplished under the general power of Article 1, Section 8, of the Constitution, commonly known as the "commerce clause,” which confers upon the Federal Government the following power over commerce :
The Congress shall have power
to regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
This has been the subject of judicial consideration in many cases, some of the notable earlier cases being Gibbons v. Ogden, 9 Wheat. 1, and Brown v. Maryland, 12 Wheat. 419.
Prior to 1870 little effort was made to supervise the railroad business of the country through the Federal powers, nor, indeed, did the states make any great effort to do so. About 1870 a general dissatisfaction with the railroad affairs of the country began to manifest itself. Particularly was criticism directed against the relationship of rates and charges, and their amounts. This sentiment was especially strong in the middle west. In this section a good many Granger societies were organized, consisting of country farmers and townsmen, and these were influential in securing the enactment of drastic laws for the regulation of the railroads. For about twenty years sub
sequent to that time the dissatisfaction with evils and offenses of the railroads became greatly magnified and the task of checking them was of transcendent importance to the people. The matter became a political issue. The paramount evil against which complaint was directed was the practice of discrimination in one form or another. In 1886, the Senate Committee on Interstate Commerce, of which Senator Cullom was Chairman, submitted a report accompanying the bill which became the original interstate commerce act, and at page 215 is this statement:
That a problem of such magnitude, importance and intricacy can be summarily solved by any master stroke of legislative wisdom is beyond the bounds of reasonable belief. Neither is it simply a tentative measure intended to pave the way for additional legislation.
The provisions of the bill are based upon the theory that the paramount evil chargeable against the operation of the transportation system of the United States as now conducted is unjust discrimination between persons, places, commodities, or particular descriptions of traffic. The underlying purpose and aim of the measure is the prevention of these discriminations, both by declaring them unlawful and adding to the remedies now available for securing redress
By contrast with the mass of subsequent legislation, Congress seemed singularly modest in this, its first attempt to cure the evils complained of.
The original act* is contained in but slightly more than nine printed pages. It now consists of 79 printed pages, and a number of miscellaneous subsidiary acts extending the powers and duties of the Commission, appreciably augment the laws under which the Commission now functions. The official index alone covers 85 pages.
The original act forbade, under heavy penalty, the practice of rebates, unreasonable preference and advantage, and pooling arrangements; rates, fares, and charges were to be published and filed with the Commission, and these
*24 Stat. L. 379.