RAILROAD TRANSPORTATION
ITS REGTJLATIOIT
BY
STATE AND NATIONAL
AUTHORITY.
BY
HENRY T. NILES.
URBANA, OHIO :
Champaign Democrat Print.
1881.
THE QUESTION OF THE FUTURE.
o
HE proper regulation, by public authority, of the transportation of the pro¬
ducts of the farm and factory from the producer to the consumer, is a matter
in which nine-tenths of the people of every section of the country, are directly
and personally interested, and must be one of the great questions of the future.
In importance, it rises far above any that has ever agitated our people, except
the one great question, whether we should be one country, or a collection or
waring States.
A matter of such broad, vital and enduring importance should not be considered
in any narrow spirit, or with reference to any class-interest.
The principles of English law, which is but another name for the common sense
and spirit of fair dealing of the English people, applied to our present state of de¬
velopment, would give the question a solution at once comprehensive and just.
These principles, however, have by a variety of causes become so overlaid that they
have been lost sight of, and the owners of our great lines of transportation have
become a law unto themselves, and the great mass of our people have become the
despairing victims of their gigantic combinations.
In the early development of our Railroad system, when everybody was anxious for
Railroads on any terms, and at any cost, it was natural that neither Legislatures or
Courts should hold them very strictly to their obligations to the public, and since
then. Congress, the State Legislatures and the Courts have been filled with rail¬
road lawyers, whose interests and training cause them, perhaps in many cases,
unconsciously to lean to the interests of the railroads and against the interests
of the people and the spirit of the law itself. This tendency has of late become so
marked as to attract the attention of the gatherer of items for the readers of the
daily press.
In his letter to the Cincinnati Enquirer, of November 18, 1880, Gath, one of the
most observant and intelligent of the professional correspondents, says :
"The present Bench, and the pending appointees upon it will be lawyers, who
take stiff" views in favor of vested interests and the right-» of property, even
against the Government. The Supreme Bench is being made up more and more
of Railroad lawyers Bradley and Strong were put there for railroad purposes.
"The Central Pacific magnates, like Stanford, are old constituents of the Conk-
lings from New York. General Dodge, Gould's chief engineer, was one of Grant's
old corps commanders, and has probably been the link to connect Gould and
Grant at last Tom Allen, who controls the only parallel line to Gould's leading
from St. Louis to Texas, has just been elected to Congress as a Democrat. Joe
Brown, the most important man in the Railroad interests of Georgia, has just been
elected to the United States Senate for six years, in spite of his political unpopu-
f
2
larity. The railroad consolidation through Kentucky, Tennessee, Georgia and Ala¬
bama has been done 011 almost as large a scale by Southern Democratic capitalists
and Northern Republicans. The relations between these great corporations and
public polities are such that the campaign funds which so materially influence
National and State elections, are hereafter apt to come out of the Railroads and the
Banks which affiliate with them. There is not an important name in the United
States, with possibly the exception of Thurman, of Ohio, disconnected with Rail¬
roads. Edmunds, Carpenter, Conkling, Blaine, Hayes—all suggest Railroads."
In this way, by almost imperceptible degrees, by act after act, and decision after
decision, a system of Railroad law has been gradually built up, leaning more and
more to these great corporations, until it leans away from the principles of public
right and justice, more than the celebrated Tower of Pisa leans from the true per¬
pendicular
By this succession of favoring Legislation and decision the great Railroads of
the country, protected in a system of exaction and oppression, have grown strong
enough to swallow up the weaker ones, and the strong men in these corporations
have in like manner gathered up almost for nothing the stock of the people whose
money built our Railroads until now two men in New York, one in Philadelphia,
and one in Baltimore control our whole transportation system, and can at will raise
freights over the whole Country on all the products of farm and factory, at once
reducing the legitimate profits of production, and at the same time increasing the
cost to the consumer apparently thinking that the people have no rights that a
Railroad is bound to respect.
Indeed, it has come to this, that the chattel property of some of these Railroad
Kings is more than the entire chattel duplicate of several of the States of the
Union, and by lending their surplus money 011 call loans they can produce an
easy money market, and by suddenly calling it in they can produce a public panic
In the presence of such startling facts, into what insignificance sink questions of
Bank and Sub-Treasury, and Tariff, that have divided the people into two great
parties.
Revolutions have been produced by less causes.
This is the (Mil we all see, and feel.
What is the remedy? We need no revolution. We need no departure from
broad, well-established principles of law. We need no stretching of the Constitu¬
tional powers of Government. What we need is:
1st. That the people should he aroused to a true appreciation of the importance
of this question
2d. That they should not allow themselves to be divided into hostile parties by
designing demagogues on unimportant questions to the neglect of their real in¬
terests.
3d. That they should no longer allow themselves to be misrepresented in State
Legislatures or in Congress, or on the Bench by Railroad lawyers or by mere
party hacks, who can bo ruled by Railroad lobbies or bought by Railroad money.
4tli. That the Legislatures of the different States and Congress should use the
power they clearly possessio protect the people and that the Judges should apply
the principles taught by til» great lights of the English and the earlier American
Bench anil Bar to our present condition, and the remedy is reached.
By what right does a Railroad exist and use the private property over which it
3
passes ? Its whole right rests on a broad and liberal extension, not to say stretch¬
ing of the right reserved by the sovereign power when parting with the title of
land, to construct over it necessary highways for public use.
The idea of private gain did not enter as an element into this right.
Except on this ground, a Railroad has no more right to take my land and use it
without my consent than the President of that Railroad has to take my horse and
use it without my consent.
Another principle connected with all public easments is that every one may use
them on terms of exact equality, as the peasant with his cart had the same right to
use the King's highway as the Nobleman with his coach-and-four.
This right properly enforced would cut up by the roots one of the great abuses of
our present transportation system, which is favoring localities, individuals or
transportation companies composed of the officers of our great Railroads, which at
once rob the Stockholders and rob the public.
The power to protect the public thus comes from the very nature of the right
of Railroads to exist.
There is another broad ground of common law, which would give the proper
public authority complete control of all Railroad transportation. This is, that
Railroads are common carriers.
The English Parliament, long before our independence, exercised without ques¬
tion the right to regulate charges for the transportation of goods of every kind by
all common carriers, both by land and water.
In 1692, by Statute 3, W. and M., c. 12, the Justices were authorized to fix the
price of land carriage of all goods brought into any place under their jurisdiction
by any common carrier.
In 1718, by Statute 21, G. II., c. 28, §3, a common carrier is not allowed to take
more for carrying goods from any place to London than was allowed by the Jus-
tices for carrying such goods to such place from London.
In 1751, by Statute 21, G. II, c. 22, §9, commissioners for regulating the naviga¬
tion of the Thames were authorized to fix the price of water carriage.
These Statutes were all to be obeyed under heavy penalties. This was the im¬
memorial and undisputed right of the Government to regulate all carries of freight
and passengers who merely used the public land and water highways, while our
Railroads, asking especial privlieges, are especially amenable to public authority.
There is another broad ground on which the Government should interrefere.
There was nothing more, carefully guarded against by the common law than every
kind of combination to raise the price of daily supplies of the whole people and the
civil law showed equal care.
There are no less than four offenses known to the English law on all of which
degrading punishments were imposed, the whole body of the offense being an at¬
tempt to raise the price'of daily supplies. These were forestalling, regrating, en¬
grossing and monopolies, which were different forms of getting control of the mar¬
ket so as to be able to raise the price of supplies to the people. The punishment
was of different grades, but for the last, which was considered the greatest, the
penalty was for the first offense a fine of £10 and imprisonment, for the second
4
£20 and the pillory, and for the third offence £40, the pillory and the loss of an
ear, and to become infamous.
Yet now men openly combine for these unlawful purposes without fear of the
law, and our Railroad Kings at their own pleasure make the daily bread of half of
the people of the Country dearer, and there are men who call themselves lawyers
who doubt the authority of the Government to interfere.
If those wholesome old English laws were now enforced, many of our Railroad
Kings, and Pork and Grain Princes would be skulking in dark alleys to hide their
infamy and cropped ears, instead of riding in Palace Cars and seeking fashionable
resorts, their wives and daughters glittering in diamonds and the observed of all
observers.
The power of the Government to meet and correct these great evils is ample, and
the duty is commensurate with the power. We are, however, met at the very
threshliold by a confusion of ideas growing out of our complex form of Govern¬
ment. In England all power belongs to the Crown and Parliament, while in this
Country it is divided between the State and General Government.
The Constitution defines and separates these powers by perhaps the clearest and
most exact language ever used in a legal document, leaving in general to the State
all matters of local concern coming within State lines, and giving to the United
States those that reach beyond State lines, and which from the nature of the case
cannot come within State control.
Still State rights and national sovereignty have so long been the subject of party
contention and have been so mnch talked about by men who never read the Con¬
stitution, to say nothing about understanding it, that there is great confusion in
the public mind on what the Constitution makes as clear as human language can
make it.
On this question of regulating transportation, the language of the Constitution
is so clear that the wayfaring man though a fool, and even the ranting demagogue,
cannot misunderstand it. This power is clearly in both Governments, the power
of the General Government beginning just where that of the State from the nature
of the case must end. It requires the powers of both exercised fully and in har¬
mony to give adequate relief. The language of the Constitution is : "Congress
shall have power to regulate commerce with foreign nations and among the several
States, and with the Indian tribes "
The power te regulate commerce among the States is just as broad as with for¬
eign nations and with Indian tribes, which from the nature of the case must be ex-
elusive and absolute, only limited by legislative discretion.
The power to regulate commerce within its own borders is left to the State, or,
in the language of the tenth amendment is reserved to the State, and is equally ex¬
clusive and absolute.
It is sometimes claimed that commerce in the Constitution, refers to water trans¬
portation, and that it cannot be made to cover our railroads without giving the
word a meaning it did not then possess. Dr Johnson, in his great dictionary, of
which all others arc but copies or revisions, and the final revision of which was
5
made in 1773, defines commerce as "Intercourse, exchange of one thing for
another, trade, traffic." The mode of transportation is not even alluded to.
But the 42 article in the Federalist, written by Mr Madison, a strict construc¬
tionist. settles the question that the word was used in this general sense.
He says: "The necessity of a superintending authority over the reciprocal in¬
tercourse of Confederated States, has been illustrated by other examples as well as
our own. In Switzerland, where the union is so very slight, each canton is obliged
to allow to merchandises, a passage through its jurisdiction into other cantons
without any augmentation of tolls." He also refers to the German States and the
Netherlands in further illustration, the intercourse between all of which was
almost exclusively by land.
The States have in many instances attempted to correct some of the grosser
abuses, such as discriminations against localities and in favor of special customers,
but their efforts have in the main been abortive, from the fact that all important
transportation in every part of the country is to points beyond State lines, and
consequently beyond State control.
There has been but one serious attempt made by Congress, and that was by what
is known as the Reagan Bill, intended to prevent combinations and unjust dis¬
criminations. This, as far as it professed to go, was a magnificent bill, clear,
simple, direct and effective : too clear to be evaded and too stringent to be disre¬
garded, and it was passed after a fierce contest in the House only to be smothered
in the Judiciary Committee of the Senate, made up, as Gath says, of railroad
lawyers.
No doubt, many a railroad lawyer in the House voted for it, out of a wholesome
fear of his constituents, knowing that it "would sleep the sleep that knows no
waking" in the Senate.
There can be no hope or expectation of relief from these evils without a thorough
reorganization of the State Legislatures and of Congress.
The railroad lawyers must be left at home, no matter how long they have been
in public life or how able they be, for the abler the better for the railroads and the
worse for the people, and all those must be left out who accept favors from rail¬
roads, or ride on railroad passes, no matter what banner they may fly or what party
shibboleth they may cry.
None must be elected but those who believe both in the power and the duty of the
Government to protect the people from oppression and spoliation by these over¬
grown and insolent corporations.
Indeed, the country is governed too much by lawyers. Many of our most valu¬
able public men have been from other callings in life.
If Congress and the State Legislatures were made up principally from other
callings and professions there would no doubt be less talking but more practical
useful legislative work.
It may also be necessary to reorganize the courts by removing one by one as they
6
can be reached, the judges devoted from training and interest to these great corpo¬
rations.
The courts have almost without attracting public attention been organized in
their interest, and there would be no great liai m in trying the experiment of reor¬
ganizing them in the interest of the people
There are good lawyers enough not wedded to any especial interest, and who
would at once be just to the railroads, and just to the people—and even if there
were not there would be no great difficulty in finding men in other callings, whose
sound common sense and clear perceptions of right and justice would be a full
equivoleut for the smattering of law which is the sole qualification of too many of
those who now bear the once honored name of Judge.
To accomplish these results is much easier than would at first appear, for it is
not necessary to go through the slow process of forming a new party.
The questions that now divide the parties are much less important than many
suppose.
Indeed there is no question touching the real business interests of the country
on which either party is in harmony with itself.
There are gold, or single standard, and gold and silver, or double standards
Democrats and Republicans, and hard money and greenback Democrats and Re¬
publicans. and high Tariff, low Tariff and no Tariff Democrats and Republicans,
and it is impossible to tell which faction predominates in either party.
Indeed, on the Tariff, the question of most practical importance, the last canvass
was ludicrous in the last degree.
The Republicans, on a platform, calling for a Tariff for revenue, with incidental
protection, nominated a member of the Cobden free trade club and himself in
theory at least a free trader, while the Democrats, on a platform, calling for a
Tariff for revenue only, nominated a candidate, who, from education, association,
and conviction, was in favor of a Tariff for revenue with incidental protection, so
that the parties should have swapped candidates to suit their platforms, or platforms
to suit their candidates.
Indeed for want of any well defined principles on either side, the leaders of both
parties were compelled to rely upon personal abuse and party names and party
animosities to keep their followers apart
It is therefore of but little practical importance to the great mass of the people
whether the man who represents them in Congress or the State Legislature, is
called a Democrat or Republican, but it is vastly important to them that he should
believe that the Government has the power to prevent a few men in the East from
lowering the price of every pound of provisions raised by every farmer in the
West, and at the same time raising it to every consumer in the country by exor¬
bitant and unconscionable charges for transportation, and it is vastly important that
he should be a man of sufficient intelligence, integrity, and force to carry this con-
7
viction into appropriate legislative action, no matter what the party caucus may
say, or what the railroad lobby may do.
The manufacturer and white laborer of the East, and the planter and colored
laborer of the South are even more interested in compelling the railroads to accept
uniform, just and reasonable rates than the farmer of the West, for with his new,
rich land he can get along under any system of extortion, while the strictly com¬
mercial classes, have, perhaps, the most direct and obvious interest of all. Acting
as they do, as the mediums of distribution from the producer to the consumer,
their legitimate receipts age in reality but a small per cent, which may all be
absorbed by a sudden rise in freights. Of course all these classes endeavor to
shift this burden upon the others, but the result is that it deprives all legitimate
business of that certainty which is essentia] to the real stability and mutual pros¬
perity of all. Whenever, one-half of those whose interests are directly
involved and who are to-day convinced that the correction of these manifold
abuses is more important to them and to the people at large than anything the
party leaders have left to talk about, and will resolutely say that when two men
are presented for their suffrages, they will vote for the one who is thoroughly and
earnestly right on this question and will vote against the one who is wrong or
doubtful without regard to party names, the end is almost reached. Indeed, if
one thousand men in every Congressional district in the country would take this
position, the next Congress would not only pass the Reagan bill but would pass all
other needed Legislation and if the same course was taken with candidates for the
Legislature, the eminent railroad lawyers now filling the United States Senate,
would soon be left to devote their whole time to the interests of their clients.
It is plain what is needed.
First the enactment by Congress and the State Legislatures of the substantial
provisions of the Iieagan bill, to prevent all improper combinations and unjust
discriminations ; and second, the enactment of laws by both State and National
governments to compel the railroads to accept for the transportation of passengers
and freights such prices as experience has shown to be just and reasonable for the
services they have voluntarily undertaken to render to the public.
They should also be compelled by law not only to be merciful to the dumb brutes
they are transporting, but to be just to their employes and especially to the engi¬
neer, one of the noblest characters the country has produced, who stands there at
his throttle valve day and night through heat and cold, in storm and sunshine, in
the face of danger and death, watching with a vigilance that must know no relaxa¬
tion over the lives and property of the people, and the brakesman who must on the
instant be ready to answer his slightest signal
I know these ideas will seem radical to some who in the hurly-burly of getting
money have lost sight of the principles on which our institutions rest.
They will undoubtedly run atwhart "the stiff ideas in favor of vested rights,"
of the railroad lawyers Gatli speaks of as now occupying the bench or awaiting
appointment to it.
What! a vested right of a dozen men to rob a nation ! A vested right to take
s
his hard earnings from the tiller of the soil ! A vested right to lay the hard, cold
hand of avarice on the laborer's daily bread and snatch it from his children's
mouth6 !
You may as well talk to me about a vested right to shutout from God's children
his free air and sunlight.
These ideas may seem strange and radical to some, but they are ideas that lay at
the very root of our Anglo-Saxon civilization—the noblest civilization the world
has ever seen. They are ideas as familiar as their alphabet, to the great lights of
the English bench and bar, and they are ideas that must be recognized and en¬
forced, or we are on the high road to the worst and meanest—the grossest and most
grasping despotism the world has ever seen—a despotism of mere money over
the bodies and souls and the GOD-given inalienable rights of man.