# Railroad Gazette/Volume 38/Number 5/Editorial Notes

​The Springfield Republican says that “the proposal, embodied in the Hepburn bill and insisted upon by the railroads if they must put up with new legislation, is to make the United States courts the larger factor in applying public control of rates.” Continuing, the editor says:
“Does this proposal grow out of a sincere belief that a federal judge is more competent fairly. to pass upon what are and what are not reasonable rates, than a commission giving its whole time to the subject: or does it rest upon the impression that the federal judges will prove more amenable to the railroad influence and interest? It certainly cannot be founded on a belief in the superior competency of men who are giving their attention chiefly to questions wholly foreign to those of railroad rates. There is no sense whatever in the view that federal judges are infallible, while every other tribunal of government, is subject to the limitations of human nature.”
It may well be that the alleged railroad proposal does not rest on either one of the two suggested theories. Other things being equal, it is obvious that a commission devoting its time to rate-making would be more competent than one engaged a part of the time in law questions connected with non-railroad matters; but other things are not equal. The first qualification in a man who is to decide a rate question, or any other public controversy, is an impartial mind; but the Interstate Commerce Commission has been accused—and not alone by railroad men—at being conspicuously deficient in this respect. This accusation may have been aimed more particularly at one or two commissioners; but if the other three or four are so complaisant as to be nonentities, the defect is the same as though it existed in every member. A railroad officer who desires to make a judge lean toward the railroad side of a case is wrong-minded; but in his efforts in that direction he has, just now, the co-operation of many right-minded persons; for many such believe that the judge in question—i.e., the commission—leans too far away from the railroad side. It is not necessary to assume that the judges of the Federal courts are looked upon as infallible, in order to explain the sentiment of railroad people in their favor. They are all fallible men. But insofar as infallibility can be imparted from without, the people of this and other enlightened countries have endeavored to impart it to the judges of their higher courts; while in the case of the Interstate Commerce Commission one of the most important of such outside measures—life tenure of office—has been omitted. The appointing power has also almost invariably ignored railroad experience, which is another grave defect. The commissioners may “give their whole time to the subject”; but that may be insufficient. In other matters of similar importance we usually try to find men who have given their whole lives to the subject.
In the discussion by the Western Railway Club of the necessary qualities for a successful fireman, brains were properly given precedence over muscle. The man capable of shoveling the largest amount of coal into the firebox with the least degree of physical exhaustion may be, even on the largest locomotive, a much inferior fireman to the less muscular man who “uses his head” in his work, It was related of one master mechanic that he held great physical strength in firemen at a discount, giving as a reason that the weaker men were not so apt to put too much coal into the firebox. That the man who has a knowledge of combustion, and of the principles of the machine he is firing, will have a distinct advantage over the one who, though excelling him in brute strength, lacks this knowledge, needs no argument. Yet, it has been said by men who are in a position to know, that a large percentage of enginemen, as well as firemen throughout the country, lack the knowledge of fuel and of what occurs within the fire-box that is essential to intelligent firing. The paper of Mr. Pratt, printed this week, expresses the belief that the time will soon come when leading railroads will demand a knowledge of combustion and the theory of firing, and will examine applicants on these subjects before employing them. Already, some roads employ fuel inspectors, whose duties include the instruction of the firemen in regard to fuel and its economical combustion. With the knowledge that the cost of the fuel forms 30 to 40 per cent. of the cost of running the engine, the importance of the saving in expense possible from a reduction of wasteful firing will be the more fully appreciated. Or, to quote Mr. F. P. Roesch’s original remark on this point, the place to begin saving coal is “at the wooden end of the scoop,” rather than in refinements of design, mechanical appliances, etc. It is noticeable that there was almost no reference to automatic stokers in the discussion, although the contention was made that there are simple labor-saving devices, such as fire-door openers, the use of which is a very material help to the fireman enabling him to fire to better advantage, and which should therefore be helpful in relieving present conditions.
​ ​ The committee on interstate and foreign commerce of the lower House of Congress—the Hepburn committee—on Tuesday of this week prepared a new rate regulation bill, throwing aside those of Messrs. Hepburn, Esch, Townsend and Davey heretofore published; and the Republican members of the committee expressed the hope of getting their new bill passed by the House this week. It is evident that some of the members of the committee have been in constant conference with President Roosevelt, and there appears to be a general disposition to try to secure action by Congress at the present session. The new bill increases the Interstate Commerce Commission from five members to seven and creates a court of transportation. The commission is to have power to declare what shall be a reasonable rate, in place of a rate found unjust, and such new rate shall become operative in 30 days. Thirty days more is allowed for an appeal to the court of transportation. The court will review these cases sitting as a court of equity. The commission may apportion joint rates if the carriers do not. The proceedings before the commission, including the evidence, shall be sent to the court of transportation within ten days after notice. Proceedings before the court are to be conducted by the attorney general, but the commission may, with his approval, employ special counsel. Violation of an order of the commission subjects the carrier to $5,000 fine for each day. The President is to appoint two additional commissioners and the salaries of the seven, shall be $10,000 each. The court of transportation is to be composed of five circuit judges, no two from the same circuit, and each appointed for five years. The court shall hold four regular sessions in Washington each year and special sessions elsewhere. The President is to appoint five additional circuit court judges. The findings of fact made by the commission shall be received as prima facie evidence in the court, and no new evidence shall be admitted before the court if by proper diligence it could have been brought before the commission. Appeals from the court of transportation to the Supreme Court of the United States must be taken within 30 days; the Supreme Court shall give these appeals precedence over all cases except criminal cases.
Some eight months ago (May 27, 1904) we pointed out the new and somewhat unique set of problems imposed on state railroad commissions by the street railways—assuming what may almost be considered axiomatic, that the rest of the country will follow the New England precedent and put both steam and electric lines under single commissions. Massachusetts now furnishes a striking example of these new complications: The New Haven Company has just bought up the Berkshire street railway, a long competing “cross country” line. The steam company will naturally want to transfer to its “holding” organization, the “Consolidated Railway” corporation, the acquired property. But unlike the street railways acquired by the New Haven at and near Worcester, the Berkshire has absolutely no physical connection with the Consolidated Railway system and does not even touch the Connecticut state line. Corporatively and geographically it is a separate entity and, as respects holding companies, the fixed policy of Massachusetts has been the segregation of acquired lines and treatment of the holding company as an individual stock-holder. It looks now, however, as though the policy would be modified, at least as regards the steam companies. For the Massachusetts commission, whose sayso usually “goes” with the state legislature, points out the tendency of those corporations to absorb electric roads, and, in approval of it, cites (1) the trained judgment and larger re and (2) harmony of operation in focusing sources that it brings to the electric lines, and distributing passenger traffic. The commission even goes farther and adds that, to secure the best public service “it is by no means clear that … it is at all essential that the competitive conflict (of steam and trolley) should be prolonged” and “a review by the legislature of the reasons for the present character of our laws upon this subject would seem to be timely.” All this suggests, in an example localized to Massachusetts, the many new enigmas in steam-trolley relations which state commissions are fronting. They involve questions of merger, operation, layout, fares, returns, new capitalization, and, in fact, almost the whole range of railroad and railway questions raised in duplex steam-trolley phases. And, beyond the wider question of policies, is the considerable mass of new legislation—some of it empirical—needed to make those policies effective.
On January 30 the Supreme Court granted the application of E. H. Harriman and others, for a writ of certiorari to review the decision of the Circuit Court of Appeals in favor of the Northern Securities Company, and assigned the case for hearing on February 20. The lower court had granted an order restraining the pro rate distribution of the shares of the Great Northern and Northern Pacific railroads held by the Northern Securities Company. The Circuit Court of Appeals dismissed this injunction and the present decisions means the that the Supreme Court will take up the entire record of the courts below, and that the case will likewise be argued on its merits before the Supreme Court on the day set. The contention turns on the old question as to whether control of the North Pacific shall rest with the Harriman interest by virtue of a return of the exact shares which they turned in to form the Northern Securities Company, or whether this control will pass to Mr. Hill by virtue of a pro rate distribution of Northern Securities assets, which would give Mr. Harriman a considerable minority holding of Great Northern stock which he did not have before and does not particularly want, but would deprive him of the majority holding of the Northern Pacific with which he went into the holding company.
On this same day, January 30, the Supreme Court also handed down a very interesting decision with regard to the so-called beef trust, holding it to be a combination in restraint of trade and commerce in violation of the Sherman anti-trust law. The injunction issued last spring by Judge Grosscup restraining the members of the so-called trust from conspiring to depress the price of cattle and to raise the price of dressed beet was affirmed, with certain slight modifications. The opinion was delivered from a united bench, and is noteworthy for its disregard of technicalities and the evidence which it furnishes that the Supreme bench means to interpret the Sherman law in accordance with the spirit and not with the letter of the the requirements, in the many places where the spirit and the letter conflict. Judge Holmes, in delivering the opinion of the court, said that intent was almost essential to a combination in restraint of commerce among the states, and that it was essential to an attempt to monopolize commerce among the states. “Where acts are not sufficient in themselves to produce a result which the law seeks to prevent, for instance, the monopoly; but require further acts in addition to the mere forces of nature to bring that result to pass, an intent to bring it to pass is necessary in order to produce a dangerous probability that it will happen. But when that intent, and the consequent dangerous probability, exists, this statute, like many others, and like the common law in some cases, directs itself against the dangerous probability as well as against the completed result.”
The experiment of three cent fares within a certain zone, now being tried by the street railways in Cleveland, is not to be taken seriously as evidence of any impending change in street car fares. Cleveland is the scene of ex-Mayor Tom Johnson’s activities, and the traction people, in the present interval of calm, are probably glad to be able to collect some colorless and dispassioned evidence as to the practical working of a three cent fare. It is easy to see that date thus collected might be of use in another radical campaign. From an operating standpoint, street railway managers are skeptical of the advantages gained from offering reduced rates on city lines, where there is no interurban complication. Where six tickets are sold for 25 cents, on purely local street railway systems, it is not apparent that the sales are in any way increased; the extra ticket amounts to little more than a gift to the public. The inducement to ride at a slightly lower fare does not create nearly enough new business to offset the cost, and it has been proved in several localities that the extra five cents on every sixth ticket made the different between profit and loss for the whole street railway system.
The Austrian locomotive and car builders continue to complain bitterly of hard times. The locomotive works, with capacity for 460 engines per year, had orders last year for about one-third of that number, and the number of men in their employ is 44 per cent. less than in 1901. The car works are still less well off; they have reduced the number of their employees two-thirds, and are begging the Railroad Ministry to give them work enough to keep this reduced force on half time through the winter. ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ ​ The baggage-smasher has been thought to be an exclusively American species; but he seems to have relatives in Prussia, of all countries in the world, and has led the Minister of Public Works to interfere with his activity by a circular in which he says that he sometimes smashes so effectively that the railroad management is called upon to pay damages. The smashing, he says, is attributable to lack of skill as often as to carelessness and negligence; hence the men must be instructed how to perform their duties, and emphasis must be placed on the regulation, long standing, that pieces of baggage must be lifted, carried, or wheeled, and never slid or thrown. ​