"Let the penalty and damages before a decision by the courts be so qualified as to make the amount less, and let the penalty be graduated by the gross income of the road for the preceding fiscal year, say a certain per cent., instead of by a fixed sum for all roads, large and small. A penalty upon officers would really best meet the case, as they are really the derelict parties. The stockholders are scarcely capable of controlling the action, and so are innocent. Let the scienter be part of the offence-i. e., let the charge include knowingly and wilfully.

“It is a difficult matter to balance off counsel-expert vs. expert. Fees for the Solicitor or Attorney General should be provided; and the Governor authorized to engage assistance when necessary. But this would probably be of rare occurrence. On the whole, very generally, with a properly constituted Commission, the safety of all interests would finally be felt to rest in its decisions, as safer from its constitution than a jury, and more specially educated than the courts, and so the inclination would be to appeal To rather than FROM it.

"The Commission were not jesting nor acting a part when, in their first report, they referred to their deep sense of responsibility in the exercise of the large powers conferred upon them. And it will be with a profound sense of relief that they will see such a clear right of appeal as will relieve them from the anxieties of a tribunal once regarded to be strictly of the last resort as well as the first. No member of the board has failed at some time to feel an oppressive weight of anxiety.

"Summary proceeding is important, because neither the railroads nor the public can well afford to go on with their daily business, not knowing what they are to receive and pay, in their constant mutual transactions. Neither of them can understand its business nor regulate its affairs, expenses, and prices, without this knowledge.

"The inexperience of the Commission has been commented on. How much will the experience of a jury for a half day mend the matter?

"The British law on this general subject is to be found in Hodge on Railways, from which we make some extracts:

"In 1872 'the necessity of the establishment of a special tribunal to deal with certain railway questions was universally acknowledged. The railway and canal act of 1854 had been administered by the Court of Common Pleas with indifferent success. Indeed, with respect both to main and through traffic, considered irrespective of 'undue preference,' this act had been a complete failure, not a single successful application having been made. And although the decisions of the courts between different classes of traders had been satisfactory in principle, and there was no reason to suppose that any tribunal specially constituted would come to sounder conclusions, it appeared that questions of fairness of charges were matters of administrative policy rather than simple questions of law, and could be better and more cheaply investigated by a special tribunal acquainted with the subject. The committee, therefore, after pointing out that a Board of Trade is not sufficiently judicial, a court of law not sufficiently informed, and a parliamentary committee not sufficiently permanent, recommended the appointment of a "Railway and Canal Commission," to consist of not less than three persons of high standing, of whom one should be an eminent lawyer, and one a person well acquainted with railway management.'

The bill followed the recommendations almost verbatim, and became the Regulators of Railways, Act 1873.'

"Among other provisions, 'Railway Commissioners are absolutely prohibited from holding railway stock of any kind.'

"The act provides ($25) that 'for the purposes of this act the Commissioners shall, subject as in this act mentioned, have full power to decide all questions, whether of law or fact,' and after naming certain exceptions that save as aforesaid, every decision and order of the Commission shall be final.'

"The decision of the Commission may be made the Rule of a Superior Court, in order to its legal enforcement by proper officers.

"They are empowered, if they think fit, to state a case in writing for the opinion of any Superior Court, determined by the Commissioners upon any question which in the opinion of the Commissioners, is a question of law.

"Thus the law of Georgia is evidently not the wild and unprecedented action sometimes alleged, whether by analogy with the English law, or by the decision of a United States Judge.

"The sensible views here expressed, as the result of long British experience, have largely been incorporated into the Georgia law. Under it, as it stood, and far more as herein proposed to be amended, the rights of railroads are more facile for appeal, and less subject to three men than in Great Britain. At last however, three men, that very objectionable number, must decide the law.

"The right of exception brings up a great case of Interpleader, using this term in its popular sense, which will first be heard before the Commission itself, and the appeal be to the Courts for a rehearing, if desired.

"Pending suit, the rates stand for all parties; men cannot stand at a ferry for rates, they must settle and pass on. So at a train. In the Tilley case the Savannah, Florida and Western got the benefit, and the people had to suffer.

"In that case the objection being to the want of jurisdiction, the old rates were kept of force until the jurisdiction had been sustained. Now the decree has settled the matter, the onus has been changed, and the new rates are observed as prima facie correct."

At the summer session of the Legislature of 1881, a bill was introduced into the House of Representatives having for its object the settlement of this question. This bill, we would remark, was not submitted to the Commissioners before its introduction, nor were they consulted with in reference to its provisions. The committee to whom the bill was referred, requested the Commissioners to present their views as to the propriety of recommending the bill for passage. In response to this request we submitted the following changes in the bill for the consideration of the committee and of the General Assembly:

"In order to speed the cause, when the complainant files Exceptions, let him include therein the demand for a jury, if he desires one. When notice is served on defendant, if he demands a jury, let him give notice, so as to allow the Judge to have the jury ready, and so save one useless meeting and ten days' time.

"Let the parties, with the consent of the Judge, set down the case for trial at any time within twenty days.

"In regard to venue-If the exceptions be made by a citizen, let it be in the county in which an action would lie for any excessive charge, or other damage.

"If made by a railroad, let the State be the party defendant, in form as it is in fact, and let the State grant the right of suit, at its own residence-viz., the capital.

"In no case let the Commission be a party, either plaintiff or defendant-being a tribunal, not a party.

"The provision in section 2 which makes the action of the Commissiou prima facie wrong-pending the litigation-instead of prima facie right, seems to be inconsistent with the 5th section. Instead of the supersedeas, the action of the Commission should be regarded, according to section 5, as prima facie correct, until reversed, and a provision to that effect inserted. Otherwise, the whole effect of the law can be defeated.

"Cases could be brought at critical periods, and continuances cover, say the whole cotton It would be the interest of the Railrords to protract cases. The citizen would be

season.

worse off than at common law; his statutory remedy would be a broken reed, piercing his own hand.

"The real difficulty underlies all this, and was thoughtfully considered by the Commission before making the recommendations embodied in the third report.

"Were it practicable, the true solution would be, not a supersedeas, but keeping the Commission rates of force during the trial, and then provide that the party in fault should refund the proper difference to the other party.

"This would be the best plan but for certain inherent difficulties. In our report, page 133, we say:

'Pending suit, the rates stand for all parties; men cannot stand at a ferry for rates, they must settle and pass on. So at a train. In the Tilley case, the Savannah, Florida and Western got the benefit, and the people had to suffer.'

'In that case, the objection being to the want of jurisdiction, the old rates were kept of force until the jurisdiction had been sustained. Now the decree has settled the matter, the onus has been changed, and the new rates are observed as prima facie correct.'

"This may be further illustrated. The matter will not keep; the show will be over too soon-the business season.

"The reasons for this policy are much greater, however, than merely to preserve consistency. They are really vital to the efficiency of the whole system.

"The object of the State in establishing the Commission was to have rates fixed by an impartial tribunal. During the litigation, which is the more probable rate, that fixed by a disinterested tribunal or by an interested?

"In regulating a monopoly, if either party is to fix the rate, why not let the community or citizen occasionally try its hand ?

"It would fix them too low! The railroad would fix them too high! But in a monopoly, why one party rather than the other?

"A merchant cannot tell what prices to fix without knowing this element-the rate of freight. We could expand this view, but on the whole, it is best to provide as quick a remedy as possible; meanwhile, leaving both parties to abide for a short time, the best decision attainable. The British decision is final.

"Really, the Tilley case gives an adequate solution. Whilst the constitutionality of the act and the jurisdiction of the Commission was the matter in question, the court suspended the rates. When these were established, the rates went on, not waiting for final trial.

"The Tilley case illustrates another thing, also-how delays can defeat the whole system. For ten months the case was protracted, although the State and the Commission were always ready to try. Really, with this provision in the law, the State and the citizens have a good fence; but the gate being left open, as well have no fence."

We have always thought that parties claiming to be injured by a ruling of the Commission might, under the law as it now stands, have a remedy in the courts. But this remedy, as the law now stands, is not easily available. Hence we have favored and still favor such a change in the law as would authorize a direct appeal to the courts from the decisions of the Commission. But any law, authorizing such change, should be so guarded in its provisions, as not to impair the usefulness of the Commission to the public. While a complaining party ought to have the right of appeal he should not be left at liberty to indefinitely suspend the action of the Commission by a frivolous and wanton exercise of that right. Persons familiar with the practice of our courts know how easily cases may be continued from term to term, and how frequently such continuances result in gross injustice. In the matter under consideration such an evil should be strictly guarded against. Impressed with the importance of this, we do not hesitate to recommend that a supersedeas of our decisions should not be worked by any appeal which may be given. The reason

ableness of this view is sufficiently pointed out in the extracts which we have submitted. We do not think that great injustice would result from a short delay in the enforcement of the Commissioners' rulings.

Under the law as it now stands we are required to publish for a certain period any schedule of rates adopted by the Commission, and, pending such publication, such schedule is not of force. The period required for such publication would in most instances be sufficient to enable the party complaining to have his cause adjudicated by the courts.

With proper legal provisions for prompt action and speedy hearing before the court, we see no reason why the right of appeal should not be given, so that complaining parties, whether railroads, individual citizens, or communities might be allowed to enjoy a highly valued constitutional privilege; while the public interest would not necessarily suffer thereby.

But we desire to impress upon Your Excellency the very great importance of having such appeals finally decided within the shortest period of time consistent with justice to the parties.

It has been the practice of the Commissioners to provide that their orders requiring publication shall not go into operation short of thirty (30) days after their adoption. Experience has shown to us the wisdom of this practice. This period of time we think sufficient to secure appealing parties their rights in the courts.

We would, therefore, respectfully suggest that any amendment of the law giving the right of appeal from the decisions of the Commission should be so guarded as not to allow a suspension of the action of the Commission for a period longer than thirty (30) days. We do not venture to suggest all the special provisions which would necessarily enter into legislation on this subject. We deem it sufficient that we should very clearly indicate to Your Excellency our opinion as to the propriety of giving the right of appeal to the courts and the necessity of incorporating into the law provisions guarding the public against the evils which might possibly result from any attempt to abuse the privilege.

The Commissioners have had under consideration the propriety of recommending other changes in the law establishing the Commission. We beg to reserve these recommendations, however, for our annual report which will be submitted to your Excellency prior to the meeting of the General Assembly of the State.

JAMES M. SMITH,

CAMPBELL WALLACE, Commissioners.
L. N. TRAMMELL,

A. C. BRISCOE, Secretary.