The authority for the control of railroads by the federal government is based not only on the principle of the governmental control of "common carriers," but also on the provision of the Constitution that Congress has the power to regulate the commerce between States. It is quite probable that this provision was inserted in the Constitution chiefly, if not entirely, with the idea of preventing the collection of import and export duties on merchandise passing between the States. Railroads were non-existent at that time, were hardly even dreamed of, and certainly the framers of the Constitution had not the slightest conception of the present railroad situation. Nevertheless on this very slender basis has been built up the elaborate series of decisions which have been rendered by the U. S. Supreme Court in the many recent railroad cases. Of course it required no authority greater than that of common law for Congress to deal with railroads as common carriers which are subject to its jurisdiction. Inasmuch as the consolidation of railroads during recent years has made every important railroad system enter two or more States, there is but little railroad traffic in the country which is not subject to federal control. Federal control has been exercised partly as a result of the very extensive grants of public land which have been donated to railroad companies to encourage the building of important roads, such as the Union Pacific Railroad. The authority of Congress to control railroads even to the making of reasonable freight-rates has been thoroughly affirmed by decisions of the U. S. Supreme Court. The control exercised by Congress over railroads has been principally centered on the regulation of freight-rates. In addition to this, acts have been passed to regulate the use of safety appliances, such as automatic couplers, air-brakes, etc.

34. Necessity For Control

A private shipper has but little hope of satisfaction if he considers that a given freight-rate on a shipment of goods is unreasonable. If the goods have already been shipped, the charge must be paid before the goods can be recovered at the other end. Theoretically the law provides that he can complain to the Interstate Commerce Commission that the charge is unreasonable. Although the Interstate Commerce Commission is empowered to order a railroad to reduce its charge to "reasonable rates," it does not have the power to state what a reasonable rate shall be. Regardless of the Interstate Commerce Law, the shipper can bring an action against a railroad company in an ordinary court upon the complaint that a rate is unreasonable, and if he can establish the point, the railroad must refund whatever has been proven to be the excess. But when the cost of such proceedings is taken into consideration, there is no object for the shipper to bring such an action cither before the courts or the Interstate Commerce Commission. Even the powers of the Interstate Commerce Commission have been so limited by the decisions of the Supreme Court that the shipper has very little recourse under the present conditions of the law. The railroad company is protected by the constitutional provision that rates cannot be reduced to such an extent as to make them "confiscatory." But since it would be practically impossible to demonstrate that any individual rate would be confiscatory, the provision is of little practical use to the railroads. The reasonableness of a rate is very difficult to prove, except by a comparison with similar rates under similar conditions. The chief provision of the Interstate Commerce Act is what is commonly called the "long-and-short-haul clause" which forbids a railroad from charging more for a short haul than for a long haul in the same direction and under similar conditions, the short haul being included within the long haul. The words "under similar conditions" have been the loophole which has practically nullified the long-and-short-haul clause. The railroads have successfully maintained the existence of a difference in operating conditions which justifies them in accepting some shipments of competitive freight at less rates than other shipments of noncompetitive freight on which the haul was actually somewhat less.