CHAPTER XI

SONG OF THE BARREL

Genius could take so unspeakable a thing as a shirt and sing it

into an immortal song, but a barrel--and an oil-barrel, greasy and

ill-smelling--even genius could do nothing with that. But the barrel

plays a leading rôle in the drama of the great monopoly. Out of it

have flown shapes of evil that have infected private fortunes, the

prosperity of more than one industry, the fiduciary honor of great

men, the faithfulness of the Government to its citizens. Perhaps

a part of what genius could do for the shirt--force a hearing for

the wronged--may be done for this homely vessel of the struggling

independent by the kindly solicitude of the people to learn every

secret spring of the ruin of their brothers.

The market--the barrel that went to market--the freight rate that

stopped the barrel that went to market--the railway king who made the

rate that stopped the barrel that went to market--the greater king who

whispered behind to the railway king to make the rate that stopped the

barrel that went to market--this is the house that Jack unbuilt.

Such is the superiority of a simple business organization, where

"evolution" has not carried the details of the industry out of sight

of the owner, and where the master and man, buyer and seller, are in

touch, that the independent refiners could overcome the tax imposed

on them by this pooling of the pipe line and the railroads, and not

only survive but prosper moderately. During the three years--from

1885 to 1888--following the first attack upon them under the contract

just described, they state, in their appeal to the Interstate

Commerce Commission in 1888, they were "enabled by their advantages

in the local markets to keep up, maintain, and even increase their

business."[227] These "outsiders" shipped their oil largely in barrels

because the trunk-lines had made it as nearly impossible as they

could for them to ship in tank-cars. They, like all in the trade,

could not live without access to the European market. Out of every

hundred barrels of various kinds of products from the distillation

of petroleum, forty are of an illuminating oil not good enough to be

burned in this country. It must be sold in Europe or not sold at all;

and a manufacturer who cannot get rid of 40 per cent. of his product

must give up manufacturing. To destroy the barrel method of shipment

would destroy those who could use no other; and to close their outlet

to Europe would make it impossible for them to continue to manufacture

for the home supply. The barrel was the only life-raft left to the

sinking independent.

They who had planned the secret pool of 1885 between the pipe line

and the railroads, and the further advance of rates by both in 1888,

now called upon the railroads to deliver a final stroke against the

independents.[228] The railroads, when directed in previous years to

say "no" to applications for transportation, and "no" to those who

wanted the right to put their own tank-cars on the road, had obeyed;

they obeyed again.

A pretext for the suppression of the barrel was easily found. It was

a poor one, but poor pretexts are better than none. When the future

"trustees" of the "light of the world" were doing a small fraction

of the business, they got the contract of 1872 from the railroads to

"overcome" all their competitors, on the pretext of "increasing the

trade."[229] When by this contract and those that followed it they had

secured nine-tenths of the trade, they got the railroads to say "no"

to the remaining one-tenth, on the pretext that they could not ship as

much.[230] When the Interstate Commerce law declared it to be a crime

for railroads to forbid persons the road because they could not ship as

much as others, the combination had the railroads shut out its rivals,

on the pretext that they did not use tank-cars,[231] although tank-cars

"are worse than powder." When regular tank-cars were offered by its

competitors for shipment--as to the Pacific coast--the combination

introduced an inferior tank-car, of which it claimed, without warrant,

as the courts afterwards held, that it owned the patent, and so

obtained the sole right of way across the continent, on the pretext

that other shippers did not use this poor car.[232]

The pretext now used against the refiners of Pennsylvania was the

passing phrase, "He must pay freight on barrels," in a decision of

the Interstate Commerce Commission concerning Southern traffic. This

decision had no relevancy to the oil business of the North. Six months

went by after it was given with no intimation from any one that it

related in any way to the situation in Pennsylvania, and to be so

applied it had to be turned inside out and upside down. In the Rice

case the Commission had decided that freight rates must be reduced on

barrel shipments. This was, in the sharp language of the decision, to

put an end to "the most unjust and injurious discrimination against

barrel shippers in favor of tank shippers," a discrimination which the

Commission has elsewhere said "inured mostly to the benefit of one

powerful combination."

In ordering this reduction it said: "Even then the shipper in barrels

is at some disadvantage, for he must pay freight on barrels as well as

on oil."

By "must pay" the Commission meant "was paying." It was, as it

afterwards protested, "rather a statement of a prevailing practice

than a ruling."[233] And the remark furthermore concerned the trade in

the South and Southwest alone, where special circumstances existed not

found at the North.

Six months after this decision the Pennsylvania and other Northern

roads made these words, "He must pay freight on the barrels," the

occasion of an increase of rates, which stopped the refineries of

the independents. They were carrying free the heavy tanks--"the

most undesirable business we do," in the language of their freight

agent. They had been carrying the barrels of the independents free

for twenty years. Now, continuing to carry the tank-cars free, they

levied a prohibitory transportation tax on the barrels. To cap it all,

they declared, in announcing the new rule, that it had been forced

upon them by the Interstate Commerce Commission. But the President

of the Pennsylvania Railroad is found admitting that it was the oil

combination that dictated the move--"the seaboard refiners insisted."

"Upon your decision" (in the Rice case) "being promulgated," he wrote

the Interstate Commerce Commission, "the seaboard refiners insisted

that we were bound to charge for packages," barrels, not tanks, "as

well as for the oil."[234]

The seaboard refiners were the members of the oil trust; the others

at the seaboard had been wiped out years before by the help of the

railroads. Though the Pennsylvania Railroad was not a party to the case

before the Commission, though it had not been called upon to change

its practice, which was what it ought to be, it did now change it from

right to wrong. The Commission had ordered that discrimination between

the barrel and the tank should cease. The Pennsylvania, which had not,

strange to say, been practising that forbidden kind of discrimination,

immediately resorted to it, and, stranger still, gave as its reason the

order of the Commission against it. It must have been a keen eye that

could find in a "qualified and incidental remark," as the Interstate

Commerce Commission styles it, in such a decision, a command to charge

for the weight of the barrels and increase freight rates; but such

an eye there was--an eye that will never sleep as long as Naboth's

vineyard belongs to Naboth.

All the trunk-line railroads to the East took part in the new

regulation--September 3, 1888--that freight must be paid thereafter

on the weight of the barrels as well as on the oil itself, and at the

same rate. This increased the cost of transportation to New York to

66 cents from 52 cents, and to other points proportionately. Freight

rates on the oil of "the seaboard refiners" who shipped in tanks were

left untouched. In the circulars announcing the change it was said to

be done "in accordance with the directions of the Interstate Commerce

Commission."[235] When the refiners whom this advance threatened

with ruin wrote to expostulate, they got the same reply from all the

railroad officials as from President Roberts of the Pennsylvania

Railroad: "The advance in rates ... has been forced upon us by the

Interstate Commerce Commission."[236]

The Commission immediately called the responsible official of the

Pennsylvania Railroad, which was the leader in this move, "to a

personal interview," "expressed their surprise," and suggested the

withdrawal of the circular and of the increased rates. This was in

August.[237] No attention was paid to this by the road. The Commission

waited until October 10th, and then sent a formal communication to

the President of the Pennsylvania Railroad, which was followed by

correspondence and personal conferences with him. The Commission

pointed out that the statement of the circular was "misleading," "not

true," "decidedly objectionable"; that the Commission had made no

decision with reference to the rates of the Pennsylvania Railroad or

the other Eastern lines; that its decision, applicable solely to the

roads of the South or Southwest, had been that rates on barrels must

be reduced, and that it was not right to use this as an excuse for

increasing the rates on barrels. Finally, the Commission said that

if it had made any ruling applicable to the Pennsylvania Railroad it

would have been compelled to hold that its practice, of twenty years'

standing, of carrying the barrels free, since it carried tanks free,

was "just and proper," and that there was nothing to show that an

advance in its rates was called for.[238]

The Interstate Commerce Commission was the body specially created by

Congress to interpret the Interstate Commerce Law. The Pennsylvania

Railroad was one of the common carriers under the orders of the

Commission, and its managers were subjects of jurisdiction, not judges.

But its method of running the Supreme Court of Pennsylvania, as if it

were one of its limited trains, was now applied with equal confidence

to the Interstate Commerce Commission. It insisted that it was itself,

not the Commission, which was the judge of what the latter meant by

its own decisions. The road continued the rates against which the

Commission protested. The Commission demanded that the assertions that

the new rule of charging for the barrels and the advance of rates was

made "in accordance with the directions" of the Interstate Commerce

Commission be withdrawn. The Pennsylvania road responded with another

circular, in which it changed the form but repeated the substance. "The

action referred to was taken for the purpose of conforming the practice

of this company to the principles decided by the Interstate Commerce

Commission." The Commission protested that it was not laying down any

such "principles" but the corporation declared that that was what it

"understood," and held to the advance made on that understanding.[239]

To the almost weeping expostulations of the Commission in interviews

and letters, to show that it had said nothing which could justify the

action of the roads, the officials made not the slightest concession.

"I did not consider it in that way," said one of them.[240] "That

was their (the Commission's) view of the case, but it was not shared

by us," said the President of the Pennsylvania Railroad. "It was

considered best to continue the practice," he said.[241]

"Why did you not rescind the order?" he was asked before the Interstate

Commerce Commission.

"We understood their ruling to be a ruling for the whole country," he

incorrigibly replied.

The railway president studiously withheld any assurance that he would

obey if the Commission issued a direct command, which it had not done,

though it had the authority.

"We would then take the subject up," he said.

Change the order to comply with the ruling of the Interstate Commerce

Commission the roads would not and did not.[242]

All the roads to the seaboard and New England had made the order in

concert, and together they maintained it. It was one hand, evidently,

that moved them all, and though that hand moved them, for the benefit

of a carrier rival of theirs--the pipe line of the trust--against their

own customers, against their own employers, against the authority of

the United States Government, all these railroad presidents and freight

agents obeyed it with the docility of domestic animals.

These officials were the loyal subjects of a higher power than that of

the United States, higher even than that of their railway corporations.

They serve the greatest sovereign of the modern world--the concentrated

wealth, in whose court the presidents of railways and republics, kings,

parliaments, and congresses are but lords in waiting.

Thanks to the superior enterprise of their greater need, the

independents of Oil City and Titusville had been able to survive the

blows that had preceded, but this was too much. They had weathered

the surrender in 1883 of the Tidewater Pipe Line, which had promised

them freedom forever. Even the "contract" which made the allied pipe

lines and the railroads in 1885 one, to tax them half as much again

for transportation, had not broken them down. In spite of it they had

been able "to maintain and increase their business."[243] But now they

closed their works. The new attack had been shrewdly timed to spoil

for them in that year--1888--the season of greatest activity in the

export to Europe and Asia. They appealed to the Interstate Commerce

Commission. "The greater proportion of our refineries are idle."[244]

"I have not a customer in the entire New England States. I have not had

since the advance of last September."

"How was it before the advance?"

"I had a number of customers."[245]

Labor, though, as always, the most silent, suffered the most. Three

hundred coopers were thrown out of work in Titusville alone within a

short time, and the loss of employment to the workmen in the refineries

was still more serious. This was not because trade was bad. Exports

were never greater than in 1889. Government statistics reveal as in a

mirror what was being done.

The exports of refined petroleum increased 21 per cent. in 1889 over

1888. But Perth Amboy, from which the independents shipped for the

most part, showed a decrease of over 18-1/2 per cent. By the stroke of

a freight agent's pen the business of these men was being taken from

them, to be given to others. The general tide was rising, but their

feet were sinking in a quicksand.

The export business of Boston in oil was given to the "seaboard

refiners" by the same stroke. Freights that had been $100 were now $174

to Boston, and $188 to New York. These rates were so high as to stop

oil from going through. "The Nova Scotia trade," it was testified,

"goes to New York, and from there by water, whereas they used to buy

in Boston. Boston brokers will ship oil from New York and get it to

Nova Scotia cheaper than if it went from Boston, whereas when we had

the export rate we could compete in that market."[246] Two months

later most of what remained of the business of the independents in

New England was added to the gift of their foreign trade, which had

already been made to the "seaboard refiners." By an order of October

25, 1888, the railroads made it known to these "pestilences," as the

lawyers of the railroads called the independent refiners in court,[247]

that they would not be allowed to send any more through shipments into

New England. This was done, as in Ohio in 1879,[248] without the notice

required by law, though in the meantime a Federal law had been passed

requiring notice.[249]

This order was the finishing touch in the task of using the freight

tariff to prevent freight shipment. It shut the independents--the

hunted shippers--out of over 150 towns in New Hampshire, Vermont,

Maine, Massachusetts, including Manchester, Burlington, Portland,

Salem, in which they had built up a good business, and it made

it impossible to reach these places except by paying high local

rates--from station to station--which were not required of their

competitor, who shipped on through rates. The railroads would take the

oil of the independents for shipment, but would not tell them what the

rates would be. In this, as in all the moves of this game, we see the

railroad managers of a score of different roads, at points thousands

of miles apart, taking the same step at the same time, like a hundred

electric clocks ticking all over a great city to the tune of the clock

at headquarters that makes and breaks their circuit.

The independents were saved by a Canadian railroad from the destruction

which American railroads had planned for them. The Grand Trunk gave

them a rate by which they could still do some business in the upper

part of New England, though to do this they had to ship the oil into

Canada and back into the United States. The effect of this abolition of

through rates in "cheapening" oil was that the people of Vermont, for

instance, had to pay 2 cents a gallon more than any other place in New

England.[250]

While all access for others to New England was cut off, the "seaboard

refiners," sending the oil in free tanks to the seaboard, transshipping

it there into vessels by the facilities of "which they have a

monopoly,"[251] easily made their own the business of their rivals in

the 150 towns from which the latter were thus cut off. No one has been

able to move all the railroads in this way, as one interlocking switch,

to obey a law or accommodate the public. But it was done easily enough

for this kind of work. Possession was got of the railway managers at

the initial points, as was done so successfully in another case,[252]

and all the other railway managers, as far as Boston, followed in their

trail. Reproducing the tactics in Ohio in 1879, it was only against oil

that this attack of the tariff was made. Other freight for export, of

which there was a vast variety, continued to be carried to Boston at

the same rate as before.[253]

All the freight agent of the initial road had to do with the oil on its

way to Europe was to pass it along to the next line. Whether, after

leaving his road, it went by the way of Boston or that of New York made

no difference to his road, and was in no way his affair. But it made a

great deal of difference to those who wanted all the business of Europe

and America for themselves, and we consequently find him serving them,

and dis-serving his employer (the railroad), by charging 21 cents a

barrel if the oil was going to Boston after leaving his line, but only

15-56/100 cents if it was going to New York. When asked if he thought

he was justified as a railroad man under the law in making the charges

for what he did vary according to what was done by the business after

it left his hands, he refused to answer.

"You will not answer?"

"Not at present."[254]

All the connecting and following roads are on record as having

protested against the measures in which they followed the lead of

the initial lines.[255] The freight agent of the West Shore Railroad

declared that the prohibition of through shipments to the towns of

Massachusetts, Vermont, New Hampshire, and Maine "occurred simply

through mistake;" but the mistake, he acknowledged, had never been

corrected.[256] This "mistake" and that of September, which preceded

it, put an end to a large business, amounting in 1888 to 900,000

barrels. The men, whom the railroads began to massacre after having

pledged them full protection, saved a fraction of their trade in

New England, as we have seen, only by taking refuge with a foreign

railroad. The railroads against their will, as they swore, lost

business as well as honor, but the mistake was not corrected.

It would tax the imagination of a Cervantes to dream out a more

fantastic tangle of sense and nonsense in quixotic combat than that

which these highwaymen spun out of the principles of "scientific

railroading." All that highway control could do to destroy the barrel

shippers for the benefit of the tank shippers was done; and yet the

barrel method is the safer and more profitable for the railroads.[257]

The cars that carry oil in barrels can return loaded; the railroads

have to haul the tank-cars back empty and pay mileage on them.[258] For

a series of years on the Pennsylvania Railroad the damage from carrying

oil in barrels was less than half the damage from the carrying of oil

in tanks.[259] The general freight agent of the Pennsylvania Railroad

Company tells the Interstate Commerce Commission that the carriage of

oil in tank-cars "is the most undesirable business we do." He described

a smash-up at New Brunswick where there was a collision with a line of

tank-cars. The oil got on fire; it ran two squares, got into a sewer,

overflowed the canal, which was then frozen over, and followed the ice

a square or two beyond. Besides having to pay nearly five hundred

thousand dollars damages for the destruction done, the railroad lost

its bridge, which cost two or three hundred thousand dollars. It lost

more money than it could make carrying oil for ten years. "I regard

it," he said, "as worse than powder to carry; I would rather carry

anything else than oil in tanks."[260] Barrel shipments being the best

for the railroads, these princes of topsy-turvydom move heaven and

earth to destroy them.[261]

There was no end to the "mistakes" made by the railroads for the

"self-renunciation" of their business, though this was in favor of

those whose pipe line made them rivals. They charged more for kerosene

in barrels than for other articles of more value, contradicting

their own rule of charging what the traffic will bear. They let the

combination carry sixty-two gallons in every tank free on the theory

of leakage in transportation. "The practice," said the Commission, "is

so obvious and palpable a discrimination that no discussion of it is

necessary;" and they ordered it discontinued.[262]

Though the railroads brought back the tanks free, for the return of

the empty barrels they never forgot to charge. This charge was made so

high that at one time it prohibited the return from all points.[263]

"The monopoly uses a large number of barrels in New York City," the

independents said to the Commission; "it is to its interest that empty

second-hand barrels should not be returned to the inland refiner." When

this was brought out the Pennsylvania and other railroads promised to

make reparation, but had not done so years later when the case was

still "hung up" in the Interstate Commerce Commission.

It was not lack of capital or of diligence that made the independents

use barrels instead of tanks; tanks were useless to them. All the

oil terminal facilities of the railroads at the seaboard had been

surrendered to the combination for its exclusive use.[264] These were

the only places where tank-cars could be unloaded into steamers. "There

are no facilities to which we, as outside refiners, have access to load

bulk oil into vessels," and none where these refiners could send oil in

tank-cars to be barrelled for shipment abroad.[265] No matter how many

tank-cars and tank-vessels the independents might have provided, they

could not have got them together. Between the two were the docks in the

unrelenting grip which held solely for its private use the shipping

facilities of these public carriers. Not even oil in barrels could the

independents get through these oil docks.

The Weehawken oil docks of the Erie road on New York harbor are the

best in the world. The Erie Railroad has $920,760 invested in them, but

only one shipper can use them either for tanks or barrels.

The Western traffic manager of the Erie was asked:

"Would you take a shipment there over the Erie road of independent oil

consigned to the New York docks?"

"No, sir."[266]

The Pennsylvania Railroad refuses to haul tank-cars for the

independents to any other point at New York than the terminals so

controlled by the combination. It will not haul them to other docks of

its own. It will not let oil be shipped over its line to the points

at which it connects with other roads for other harbors, though it

will take shipments of anything else than oil.[267] This amounts to a

refusal to allow the independents to use tank-cars or tank-steamers.

Practically the same policy is pursued by all the main trunk-lines.

These independents could get rid of their export oil only by selling

to the combination. Through its other self--the company which controls

the terminals--it has kept an agent in the oil regions for years to

buy for export this refined oil which its owners and makers could not

export themselves. This is the "immediate shipment" of 1878 in another

phase.[268]

"You have to sell to the Standard Oil Company in order to get your oil

shipped in bulk from Communipaw?"

"Yes, sir."

"The independent cannot get his oil into a bulk vessel at Communipaw?"

"No, sir."[269]

To meet these disclosures the Pennsylvania presented two affidavits.

One was from its general freight agent that its tank-cars were offered

freely to all; but it did not deny, for it could not deny, any of

these facts about terminals, which explained why the flies did not

walk into its parlor. The other affidavit was from the secretary of

the corporation controlling the terminals for the oil combination, and

it similarly declared that its accommodations were furnished "upon

exactly the same terms to all." How long it had been doing so, or how

long it would continue to do so, it did not state, as the independents

pointed out to the Commission. If this were the truth instead of

being, as the independents hinted, "evidently a situation that has

been recently arranged for the purposes of this application"--to the

Interstate Commerce Commission for further delay--why had none of the

independents, dying for want of export facilities, resorted to it? This

was not explained, for it could not be. The independents explained the

situation to the Interstate Commerce Commission: "The inland refiner

who intrusts his oil to a storage company at the seaboard with a view

to exporting, puts himself completely into the power of such concern.

The exactions that may be unfairly imposed in individual cases for

'loss by leakage,' 'dumping and mixing for off-color or off-test,'

'cost of water white oil for mixing,' 'tares,' 'tares guarantee,'

'commissions on sales,' 'interest on goods until loaded and paid for,'

'incidental expenses,' and many other known matters of charge, may

amount to a partial confiscation of the cargo."

The corporation which manages this monopoly of the terminals at

Communipaw is a mysterious concern. Who own its stock, and what its

relations with the railroad are, the Interstate Commerce Commission

could not find out. Its president and treasurer were summoned to

testify, but refused to attend. The manager of the oil combination's

pipe lines stated that he knew of stock in the company that was owned

by a member of the trust, though he afterwards qualified that he

did not know it "positively."[270] The charge that this company was

controlled by the monopoly was specifically made before the Interstate

Commerce Commission and was not denied, and the Commission found

that the oil combination "have a monopoly of those facilities to the

exclusion of complainants."[271] It thus reported the same state of

facts in 1892 as the New York Legislature in 1879.

The barrel was therefore the fountain of life for the independent.

Without barrels he could not get his oil on board ship for export, and

without exporting he could not live and refine for the home market.

The oil combination ships in barrels also. According to the figures

given in this case by one of its "assistant managers" its shipments by

barrel are very large. This testimony was introduced to make it appear

cruel to insinuate that the difference between barrels and tanks was

made by the railroads to favor it, since it as well as the independents

used barrels. The Commission openly expressed its dissatisfaction with

this evidence, and dismissed the subject by the conclusive observation

that the combination gains more by the low tank-car rates than it

loses by the high barrel rates.[272] For the independent, however, the

difference in rates was almost all loss, for he at that time shipped

mostly in barrels. The high prices it made for oil and for freights at

Titusville and Oil City did not hurt the combination. It had only to

close its refineries there and transfer their business for the time to

its establishments elsewhere. This it did, keeping some of them idle

for years.[273]

Such was the story told to the Interstate Commerce Commission, in many

hundred pages of testimony, by the refiners of Oil City and Titusville,

who appealed to it for the justice "without expense, without delay, and

without litigation" promised the people when the Interstate Commerce

Commission was created.[274] The game, of which you have perhaps

been able to get a dim idea from the printed page, the Commissioners

saw played before them like chess with living figures. For years

the principal subject of their official investigations had been the

manoeuvres of the oil ring. They had been compelled by the law and

the facts to condemn its relation with the railroads in language of

stinging severity, as every court has done before which it has been

brought. Better than any other men in the country, except the men in

the ring, the Commissioners knew what was being done. They comprehended

perfectly who the "seaboard refiners" were whose demand that their

competitors should be shut out of Europe and New England was better law

with the Pennsylvania Railroad than the decisions of the Commission.

They needed no enlightenment as to the purpose of the secret contract

between the members of the oil trust and the Pennsylvania, nor any

instruction that the "pool" between the pipe line and the railroad was

as hostile to the public interest as any pool between common carriers.

The chairman of the Commission had openly hinted that the relations of

the oil trust and the railroads were collusive, and that the spring

from which they flowed was a secret contract.[275] It was shown to the

Commission that at the same time the railroads advanced their rates the

oil combination bid up the price of the raw material of the Titusville

and Oil City refineries. This is called "advancing the premium."[276]

The raise of the freight rate added 14 cents a barrel to the cost of

production, and the increased price of oil put on 12 cents more, either

item large enough to embarrass competition. The Interstate Commerce

Commission in its decision recognized the practical simultaneity of

the three movements to the disadvantage of the independent refiners:

(1) the bidding up of the price of crude oil against them; (2) the new

rule of charging for the weight of the barrel; and (3) the abrogation

of the through rates to New England. These three things occurred in a

period of about two months. This, the Commission says, lends color to

the charge that there was concert of action between the combination and

the railroad.

The Commissioners in their sittings had seen that the counsel for the

railroads did not pretend to bring forward any evidence to prove that

their attack on the barrel shippers was just or proper. Although "the

seaboard refiners," for whose pecuniary profit these things had been

done, were not on trial, their witnesses, agents, and attorneys were

in constant attendance, and kept close watch of the testimony and

arguments. The Commission had its attention called specifically to the

fact that the defence of the railroads on trial was being directed by

the same "seaboard refiners" who had "insisted" that the railroads

should violate the law. The counsel for the Erie road was frank

enough to admit that it was they who had prompted that carrier in its

litigation before the Commission. When the Erie appeared before the

Commission to give "further testimony," its representative could not

tell at whose request its application therefor had been made, and said

he had known nothing about the matter until the day before. Three of

the six witnesses then examined were from the offices of the oil trust,

whose members had refused to come when summoned. The only subpoenas

they obey are those issued from their own headquarters.

The president of the oil combination's pipe lines--who is also

the president of the steamship line in which its members are

interested--and the vice-president of the pipe lines, and the president

and the treasurer of the company which holds for the trust the monopoly

of the terminal facilities, and the President of the New York, Lake

Erie, and Western Railroad, and its vice-president, were all served

with official notice to come and testify. But these gentlemen refused

to appear. "It is for your honors," said the counsel for the refiners,

suggestively, "to determine what obedience shall be paid to your

subpoenas."[277] But the Commission did nothing.

The defendant corporations, and their lawyers, officers, and witnesses,

made no pretence of treating the Interstate Commerce Commission with

anything more than a physical respect. The representatives of the

railroad companies practically told the Commission that its decisions

were subordinate to theirs, and that they knew better than it what

its rulings meant. Witnesses refused to answer questions they found

awkward, and the lawyers gave the court to understand that if it did

what they did not like they would snuff it out. The Commission heard

one of the refiners who was a petitioner before it assailed with

coarse vituperation, described in open court as a "pestilence,"[278]

because he had dared to write more than once to the railroads for the

reduction of rates which would save him from destruction, and which the

Commission had, not once, but half a dozen times, said the railroads

ought to give to all.

The Commission had itself, outrunning the complainants, been the first

to "pointedly disapprove" the attempt to destroy the barrel shippers,

and to call upon the railroads to rescind their action. This protest

it had made repeatedly--first with the subalterns, then with the chief

of the Pennsylvania Railroad, in personal interviews, letters, and

finally in an official pamphlet, which was an appeal to the public to

judge between it and the corporation. It had reiterated its protest

in a formal decision rendered September 5, 1890, after deliberating

seven months on the evidence and arguments. In this "they recalled

the fact, now almost ancient history, that" the change was "pointedly

disapproved by the Commission" when first made, and with lamentations

noted that, though almost two years had passed, "the carriers have

failed to comply with the suggestions there made. In charging for

the weight of the barrels as well as the oil, the carriers that make

use of both modes of transportation have disregarded the principles

plainly and emphatically laid down by the Commission in the cases

cited, and have paid no attention to the subsequent official memorandum

explanatory of the decisions in those cases, but have persisted

in maintaining a discrimination against barrel shippers. An order

requiring the discontinuance of the discrimination has therefore become

necessary."[279]

An order has therefore become necessary. The Commission then ordered

one road concerned in this separate case to "cease and desist" within

thirty days. Although several cases affecting a number of refiners and

a number of roads had been heard and submitted together, as practically

one in traffic, territory, circumstances, and the main question, it

confined its decision to the case which involved only one road, and

that a subordinate. There the Commission stopped; and there it stuck

for more than two years, from September 5, 1890, to November 14, 1892,

refraining from a decision in the case of the principal offender, the

Pennsylvania Railroad.

The Pennsylvania Railroad is the representative carrier in the oil

traffic. It controls all the oil business that passes over its lines,

no matter how far away it originates. The initial road which led

the attack on the barrel shippers is subsidiary to the Pennsylvania

in the oil business, and the Pennsylvania controls its rates and

regulations.[280] The Pennsylvania has been the head and front of the

railroad attack on these men, and has been the open nullifier of the

law and the Commission in this matter. It was the principal defendant

on trial, and its case was identical with that of the others, except

that it was the most flagrant; but no order would the Commission issue

against it for two years. Wendell Phillips says: "There is no power

in one State to resist such a giant as the Pennsylvania road. We have

thirty-eight one-horse legislatures in this country; and we have a man

like Tom Scott with three hundred and fifty millions in his hands, and

if he walks through the States they have no power. Why, he need not

move at all; if he smokes, as Grant does, a puff of the waste smoke

out of his mouth upsets the legislatures." When the Commission had

ordered a change of rates on barrels in the South, the Pennsylvania did

the Commission the double disrespect of declaring that that order was

binding upon itself against the protest of the Commission, and of using

an order to reduce rates as an excuse for raising them. But now when

the Commission, September 5, 1890, made a decision on the same point in

a case arising in the territory and traffic in which the Pennsylvania

was the chief carrier--a case, too, of a bunch of cases in which the

Pennsylvania was a defendant--that road ignored it. The Commission,

in the Rice, Robinson and Witherop case, in 1890, promulgated the

very rule which the Pennsylvania Railroad established, which it had

been following for twenty years, and which its officers before the

Commission swore was the correct one, but the Pennsylvania refused

now to accept and follow it. The road which was now ordered to go

back to the correct practice, and which had perforce done so, was the

initial road. The Pennsylvania had followed its initiative in adopting

a "false" and "misleading" and "unwarranted" practice, but would not

follow it in changing to the good.

The attitude in which the Pennsylvania road and the Commission were

thus placed towards each other was this: Shall the Pennsylvania

Railroad be allowed to make a charge which the Commission volunteered

to rebuke it for making, and which it had decided, in the parallel

case of another road in the same situation, was altogether unwarranted

and must cease? They stood thus facing each other more than two years.

There was apparently no excuse for delay the Commission would not

accept. At one time it granted postponement on the plea of a lawyer

that his father was sick. More than the lawyer's father were sick; a

whole community of business men were sick; the entire country was sick,

its industry, law, politics, morals--all. The administration of justice

was sick. If the facts had been uncertain, or the law undetermined,

the course of justice would still have seemed cruelly sluggish; but

here was a matter in which the facts and the law in question had been

settled, and by the Commission itself, over and over again. The only

thing remaining was that the Pennsylvania Railroad, as well as the road

which was its next neighbor, must obey the law. The railroad against

which the Interstate Commerce Commission decided in 1890 on this point

joined the Pennsylvania at Irvineton and Corry. The Commission put the

law into force on one side of those points, but for two years gave

the Pennsylvania Railroad and others "rehearings" and other means of

delay, and did not open its lips to say that the same law must reign on

the other. The conduct of this corporation meant that it intended to

respect neither the Interstate Commerce Commission nor the Interstate

Commerce law; that it recognized the will of cliqued wealth as the

supreme law; that the protestations of loyalty to the law and the

Commission with which it accompanied its defiance of both were not

offered as a disguise of respect, but were chosen as a method which

would most embarrass the people's tribunal in upholding itself and the

rights of the citizens. All that was needed by those who had contrived

and were continuing the wrong was time--they had everything else. Time

they got, and plenty of it.

July 15, 1891, the refiners said to the Commission: "Two and one-half

years have elapsed since these complaints were filed, and the end

is not yet. We earnestly hoped that we had succeeded in convincing

this Commission that this respondent was inflicting on complainants a

great and unnecessary wrong, which merited the most speedy remedy and

redress possible. If we have failed in this we are unable to ascribe

the failure to a lack of evidence or promptness in presenting it.

It was not thought possible that all this great length of time would

be required to reach a conclusion in these matters, under all these

circumstances, especially after the decision in the Rice, Robinson,

and Witherop case (September 5, 1890). The enemies of the complainants

could scarcely have found or wished for any more effectual way of

injuring complainants than by a long delay of their cause. Further

delay simply means further injury to complainants." The two years

and a half have gone on to more than five years. A decision has been

made, but the end is not yet. The delay prevented the injured men from

going to any other tribunal with their complaint. They have succeeded

in keeping alive, though barely alive, because the price of their raw

material has declined a little, and given them a margin to cling to.

This delay has denied them justice in the special tribunal they were

invited to attend, and has also denied them the relief they could have

got from other courts.

The Commission heard all this urged by eloquent counsel. It heard the

men who were being crushed tell how their refineries were being closed,

their customers lost, their business wrecked, their labor idle, while

the trade itself was growing larger than ever. It saw the statistics

which proved it. But no practical relief have the independents of

Oil City and Titusville been able to get from it. They have lost the

business, lost the hopes of five years, lost the growth they would have

made, lost five years of life.

This delay of justice is awful, but it is not the end, for the

decision, though it came at last in November, 1892, has brought no

help. It required the roads to either carry the barrels free or

furnish tank-cars to all shippers, and for the past ordered a refund

of the freight charged on barrels to shippers who had been denied

the use of tank-cars. More than five months after it was rendered

the independents, in an appeal (April 20, 1893) to the Interstate

Commerce Commission, called its attention to the fact that "none of

the railroads in any one of the cases has as yet seen fit to obey

any of its orders save such and to such extent as they found them

advantageous to themselves, although the time for doing so has

expired." More appalling still, it appeared, in an application made

in March, 1893, by the Pennsylvania Railroad for a reopening of the

case, that these years of litigation were but preliminary to further

litigation. The counsel of the railroad, in the spirit in which it

had previously warned the Commission that its powers "may be tested,"

now informed it that the road, if the application for further delay

were not granted, would "await proceedings in the Circuit Court for

enforcement of what it believed to be an erroneous order." And in

another passage it referred to the proceedings before the Commission as

being simply proceedings "in advance of any final determination of the

case on its merits." Four years and a half had been consumed when, as

the independents pleaded to the Commission, "it might reasonably have

been expected that as many months would have sufficed," and yet these

are only preliminary to "the final determination of the case on its

merits."

"The delay suffered has been despairing--killing," was the agonized cry

of the independents in their plea to the Interstate Commerce Commission

not to grant this new delay. "We pray that no more be permitted."

But in November, 1893, more delay was permitted by granting another

application of the Pennsylvania Railroad for "rehearing." This was

limited to thirty days, but these have run into months, and "the end is

not yet." Five years have now passed in this will-o'-the-wisp pursuit

of justice "without delay."

And another "outsider," who has been a suppliant since March,

1889,[281] before the Interstate Commerce Commission for the same

relief--the free carriage of barrels where tanks are carried free--is

still a suppliant in vain. The Commission consumed three years in

hearings and rehearings, only to report itself unable to decide this

and other important points raised by him. It was "a most perplexing

inquiry," "we are not prepared to hold," "we desire to be made

acquainted with the present situation," and "the results exhibited

by recent experience." "No such intimation is intended," said the

Commission, as that it is right for the roads to charge for barrels

when they carried tanks free--not at all. "We simply refrain" from

stopping the wrong, and "reserve further opinion for fuller information

and more satisfactory inquiry." Perhaps, however, by "voluntary

action"[282] the railroads which had contrived this wrong would be

good enough to stop it, though the Commission was not good enough to

order them to do so! The Commission held that the rates were "unlawful;

but, for want of sufficient data, we do not undertake to point out

the particular modifications and reductions which would satisfy the

demands of justice."[283] "We are not now prepared to determine," "we

feel unable to prescribe," "is not now decided," "reopened for further

evidence and argument," are the phrases with which the Commission

glided away from the settlement of other vital points as to which its

intervention had been invoked for more than three years. Even when it

directed the railroads to reduce their charge it added "to what extent

the Commission does not now determine, and the cases will be held open

for such further," etc. And there his case hangs even unto this day,

for since this "not-now-decided" decision the "outsider" has never

renewed his appeals to the Interstate Commerce Commission concerning

these cases or others,[284] but, hopeless of redress, has let them go

by default.

The secret contract stands, but the barrel men survive, barely, despite

monopoly, by changing to tank-cars, and getting a pipe-line and some

terminals. They create seaboard facilities and persuade the Jersey

Central to haul their tanks. To meet this road they lay the pipe now to

be described, and, to escape railroads altogether, will build to New

York, if not ruined meanwhile.

Wealth against commonwealth · 第 11 / 36 章