long as it remains in force, the lawful and uniform treating them as crimes. Such offenses are not charges to every passenger and shipper. The rate, mere evasion of a contract obligation; they are intherefore, being the principal object to which legis-fringements of a public right and violations of a lation of this character is directed, two classes of public duty. They are delinquencies to be requestions are involved in its consideration. These strained by punishment, not broken agreements to two classes are wholly distinct in their nature, and be made good by compensation. But when transwidely different in their appropriate treatment. One gressions of this nature are made amenable to the class embraces the methods by which the justice and criminal law, when the mandate of the statute has reasonableness of a rate is to be determined; the given them this penal character, they must be other relates to the measures by which the observ- dealt with in the same manner as other punishable ance of that rate is to be enforced. It is one thing to offenses. How to check discriminations of this fix the standard of compensation; it is an entirely kind is a most difficult inquiry. Unlawful agreedifferent thing to compel adherence to that standard ments between shipper and carrier are consummated by the carrier and the public. The offenses comin secrecy, and are all the more harmful on that mitted by departure from the established tariff, account. The means for their concealment are therate-cutting, rebates, false weighing, false classi practically unlimited; the mutual interest of the fication, and endless other devices by which parties compels each to screen and protect the favored persons secure cheaper conveyance than other; detection is almost impossible. The volume their neighbors or business rivals, are practices at of traffic between competitive points is often far variance with the rudest conception of justice. below the aggregate capacity of rival roads by Their prevention is an obvious public duty. But which those points are connected. The opportunity injustice of the gravest character may also result of the shipper combined with the carrier's necessity from the observance and enforcement of the estab- is a constant temptation to bargain for preferlished schedule. This injustice arises not so much ential rates. The fact that rate-cutting and every from rates which are excessive in themselves-for species of favoritism between individuals are these are comparatively few-as from the relative criminal misdemeanors is undoubtedly a great rates applied to competing localities and kindred restraint, for conscientious men are unwilling to articles of traffic. Every community and every transgress the law and the dishonest hesitate to inpursuit is so dependent upon the facilities of rail- cur its penalties; but the scruples of the former are way carriers, so directly affected by the cost of this sometimes overcome and the latter will frequently necessary service, that an inequitable adjustment of run the risk of discovery. Moreover, the average rates between competing towns or commodities public sentiment recognizes little moral turpitude may produce the most serious disaster. It is as in compacts to secure special favors from railroad much the duty of the State to restrict these charges corporations, and the general refusal to play the within reasonable limits, and to enforce relative role of informer covers the illegal transaction with equality in the standard of rates, as it is to prevent comparative immunity. Agreements between rival unjust discriminations between individuals who are lines to maintain schedule charges are usually short entitled to the same treatment. lived, for they rest wholly on a pledge of good faith and do not long survive when interest inclines either party to break them. In addition to this the amount of property to be transported is extremely variable from time to time, while the carrying capacity of the roads is nearly a constant quantity. Hence at certain seasons of the year or in periods of commercial depression, when the volume of shipments is greatly reduced, the strife to get business is exceedingly fierce. There are occasions where competition is so sharp, where the freights of some large shippers or combination of shippers is so needful to a par

as

The distinction between these two classes of grievances one caused by deviation from the public rate, the other by its enforcement - appears as plain as it is important; yet it is a distinction which often fails to be appreciated, and is frequently quite overlooked. Upon this point there is much misunderstanding both to the provisions of the federal statute and the power of Congress to legislate upon the subject. Yet it must be evident upon reflection that the only effective mode of dealing with the discriminations between persons which are effected by depart-ticular road, that when reduced rates are demanded ure from the common standard is to place them in as the alternative of losing the tonnage, the carrier the category of criminal misdemeanors. Redress can hardly refuse. Yet the offense of rate-cutting by means of a civil action for damages is practically however induced or committed-cannot be disunavailing and manifestly inadequate. No argu- tinguished, as respects its detection and the mode ment is needed to show the insufficiency of private of bringing it to punishment, from other misdesuits to protect dependent shippers from wrongs of meanors. The ordinary machinery of the criminal this description; they can only be corrected by law must be employed in enforcing penal statutes

ter dependence upon railway facilities, have no voice in fixing the scale of charges, and little power to prevent extortion or inequality, save as they may command the intervention of public authority. To

against this offense, and there is no other way by which it can be corrected. The law-making power in this direction is practically exhausted in creating the crime. When that is done, when certain acts are declared misdemeanors, the subsequent perpe-investigate these tariffs, established as they are, by trators of those acts become liable to criminal prosecution in like manner and by the same agencies as other offenders. Nor can Congress provide any summary or exceptional methods for preventing and punishing this class of transgressions. The importance of uniform procedure in all criminal cases, and the constitutional right of indictment and trial by jury, preclude the creation of special tribunals having criminal jurisdiction of a particular class of offenses, unless such tribunals afford all the safeguards by which personal liberty is now surrounded. Theoretically, therefore, the existing system of criminal laws is ample and sufficient for redressing the wrongs now referred to. It is not lacking in strength or certainty. If these offenses escape detection and punishment, it is not because of any structural defect or weakness in the criminal machinery already provided, but because those charged with the administration of the criminal law are unable or unwilling to enforce it against this class of transgressors.

the action of the carriers, and in their own interest, to require their correction when ascertained to be unfair or oppressive, to determine, in short, what are just and reasonable rates for railroad transportation, is a government function of the highest utility. This is the central idea of "regulation" and the special field of its usefulness. Some authority there must be superior to and independent of the carrying corporations, to supervise their schedules, prevent unfair exactions, and equalize as far as may be the burdens of transportation. More and more, as population increases and industries multiply, will these burdens demand impartial scrutiny and equitable readjustment. To give each community the rightful benefit of location; to keep different commodities on an equal footing, so that each shall circulate freely and in natural volume, and to prescribe a standard of charges which shall be relatively just to both shipper and carrier, is a task of vast magnitude and importance. In the performance of that task lies the great and permanent work of government regulation.

But as respects those transportation abuses which One or two inferences from these views may be arise from conformity and adherence to an estabbriefly stated. No just theory of rate regulation lished schedule, the situation and the remedy are will proceed on the assumption that the public entirely different. How to correct the evils which alone are in need of protection and that the railresult from making and enforcing unjust rates is a roads can take care of themselves. I have little wide-reaching inquiry, the importance of which can sympathy with such an unfair and illogical contenscarcely be exaggerated. It involves the investigation. Between the railways and the public there tion by government authority of existing standards of compensation and the power to require their alteration when found excessive or unequal. Under the prevailing usage in this country the schedule of charges for the conveyance of passengers and the carriage of various commodities is made in the first instance by the carriers themselves. In a few cases the maximum rates which they are permitted to exact are fixed in the charters by which railway corporation are created; generally, however, no such limitations are imposed and other considerations are heeded in prescribing the terms upon which their services are offered. It is no part of my purpose to review the history of rate-making or to discuss the theories upon which rate-sheets are constructed; it is sufficient to observe that when the "Act to Regulate Commerce" was enacted there had long been tariffs in general use which furnished, nominally, at least, the basis for computing the carrier's charges. These standards are still devised by the railroads themselves, and represent their notions of proper remuneration. The great body of producers and consumers, whose interests are so vitally affected by the cost of transportation, and who are in such ut

is reciprocal dependence rather than mutuality of interest. Neither can exist alone, neither is independent. The bonds which hold them together are indissoluble, yet are they so conjoined that one of them cannot gain advantage without injury to the other. The shipper is entitled to have his property transported at a reasonable price; the carrier is equally entitled to reasonable compensation for performing the service. The collision of pecuniary motives by which both parties are influenced gives rise to the controversy over rates and charges. This conflict is incessant and sometimes extremely severe. But the shipper is not always the under dog in the fight. It happens upon occasion that he gets much the best of the bargain. The situation of the railroad not unfrequently furnishes an opportunity which the shipper does not scruple to turn to his own profit. Odious extortions have been practiced by railway carriers, but the public is also sometimes unreasonable and unjust. The service in which the carrier engages is undertaken for private gain. The shipper avails himself of this service, likewise for private gain. The selfishness of human nature is on both sides of the

essential to a successful codifier-an able and liberal

should be invested with ample discretionary powers, but at the same time charged with the execution of a specific work. We do not want the views of theorists exploded in our code; we do not want a code constructed in accordance with the individual views of any body of men, however learned or eminent in their profession; we do not want the law as it was, or ought to be, BUT AS IT IS TO-DAY as enunciated in the decisions of our courts. The profession, acting through the Legislature, has proved, after repeated trials, that it is incompetent to frame a proper code of procedure, and it has been obliged to impose that important duty upon the courts. The courts have performed that duty most admirably, and the only rational and sensible thing for the profession to do is to reduce the judge-made code to a compact and definite system, and put it into actual practice.

And when the new code is adopted, provision should be made for limiting appeals, purely upon questions of practice, to the General Term, except in cases involving grave constitutional questions which the General Term adjudge should be passed upon by the Court of Appeals. Our practice ought to be reasonably well settled by this time, and if we embrace within the new code a correct inter

needs of the hour. The work which such a commission would be called upon to perform would be analogous to that which confronts a text book writer that is, the intelligent comprehension of the true import or meaning of the decisions of our courts, construing the present codes and the formulation from such decisions of a clear and concise system of rules of procedure which will expedite the administration of justice, and avoid the vexatious and unseemly contests over mere technical forms which are so often interposed to delay or defeat the rights of litigants. Consequently, we should employ the services of at least one experienced and successful author of approved treatises upon legal topics-for every in-pretation of the decisions already made upon this telligent lawyer well understands the peculiar skill subject, we shall have a well defined and intelligible We have no moral or legal right to impose required by a legal writer, which may not be system. upon the Court of Appeals the determination of That onerous duty has been questions of procedure. borne by our highest court with great fortitude and dignity for many years, but we have reached that point where patience has ceased to be a virtue. It is to be hoped that we shall never again be called upon to create a Second Division of the Court of Appeals-because our judicial mill is choked up with procedure cases, due to an abortive Code of Procedure and an asinine fashion of carrying such cases to the highest court. The virtue and usefulness of our courts consist not in power to dispose of a large number of cases rapidly, but inability to decide a reasonable number of cases right, and thus secure for us the inestimable value of an unbroken line of uniform and just decisions which are the greatest safe guards of free institutions. TROY, N. Y., March 2, 1895.

minded practitioner, having much experience in trial practice, and it might be judicious to secure an ex-judge familiar with the rules of reformed procedure as applied in the trial of causes.

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In order to obviate the pernicious influence of local bias or prejudice, or theoretic views regarding our system of procedure, I suggest that we entrust the important work of code revision to a commission composed of three persons one to be a good trial lawyer of this State, and two to be selected from other States one of the latter being from a non-code State. If we could associate with an able trial lawyer of this State an expert treatise-writer from a distant State far enough removed to be uninfluenced by our system of procedure and a retired judge of successful experience in a code State also at some distance from the State of New York we should doubtless attain the best results.

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The work of such a commission would. I apprehend, if supplemented by the hearty and disinterested co-operation of the bench and bar of his State, prove highly satisfactory and of permanent value. We should in such event acquire and develop an admirable system of procedure, which would be uniform, consistent and stable. But such a commission should, in the exercise of its functions, be circumscribed by certain well-defined limitations. It

MALICIOUS PROSECUTION-STATING FACTS TO INSPECTOR.Where defendant furnished an inspector with facts on which he filed an information against plaintiff charging a distinct offense, defendant cannot escape liability for malicious prosecution on the ground that the prosecution was instituted through mistaken judgment on the part of the inspector. (Holden v. Merritt [Ia.], 61 N. W. Rep. 390.)

the Senate and Assembly, on behalf of the lawyers of the departments, each Appellate Division being a law