45th Congress, 2d Session. SENATE. i Ex. Doc. } No. 13. e it resolved, That the President of the United States be, and he is hereby, requested to inform the Senate what legal impediments, if any, exist which prevent him from executing said laws in accordance with the obligations accepted and agreements made by said Union Pacific Railroad Company and branches with the Uuited States, as stipulated and agreed upon in the several acts aforesaid. As the counsel for the Union Pacific Railroad Company and the Kan¬ sas Pacific Railroad Company, as well as the representatives of other railroads interested in the subject-matter of this resolution, desired to present their views thereon, I, in connection with the honorable Secre¬ tary of the Interior, have met and heard them. The discussion of these gentlemen covered a wide range, embracing a consideration of questions as to the requirements of the acts of Con¬ gress in relation to the operation and use of the Union Pacific Railroad and its branches for all purposes of communication, travel, and trans¬ portation, and of the rights of the public and of other railroads therein ; as to the rights and duties of the Union Pacific and branches, as between themselves, in relatiou to the operation and use of their respective roads; and as to whether the said several companies had complied and were now complying with the requirements of said acts of Congress in regard to the operation and use of said roads. Upon the one hand, it was asserted by the Union Pacific Road that it had complied and intended to comply with all the requirements of law in relation to the operation and use of its road, whether it concerned the public or the other railroads connected with it. Upon the other hand, it was maintained that the Union Pacific Railroad had persistently and continually ignored the important requisitions of law in regard to the operation and use of its road, both as it concerned the Kansas Pacific Company and other companies connected with it and the public. A full investigation of all these inquiries, and an expression of opin¬ ion thereon, would necessarily involve an examination judicial in its na¬ ture, iu which evidence should be carefully and elaborately taken, and questions of law as to the true construction of the acts of Congress dis¬ cussed in their proper relation to such evidence. The subject substantially of all these inquiries has been presented in an amicable suit brought by the Kansas Pacific Railroad Company against the Union Pacific in the circuit court of the United States for the district of Nebraska, and has there been fully examined and dis¬ cussed before the judges of that circuit, and now awaits a decision from them. On the 29th of September, 1874, these two companies entered into a writ¬ ten agreement fixing a division of rates on certain business, and providing, among other things, that said agreement should not be in prejudice of the legal rights of either party, and that " the legal rights aud status of the respective companies should be the subject of an amicable legal adjudication." In pursuance of and subsequent to this agreement, on the 21st of Janu¬ ary, 1875, a bill in equity was filed by the Kansas Pacific Company and the Denver Pacific Railway and Telegraph Company in the United States cir¬ cuit court for the district of Nebraska, praying an injunction against the Union Pacific Company, restraining it from continuing its alleged dis¬ criminations. This suit was intended to present the substance of the whole UNION PACIFIC RAILROAD. controversy, which is found in the fifteenth section of the act of July 2, 1874, amendatory of the act of July 1, 1862, which is as follows: That the several companies authorized to construct the aforesaid roads are hereby required to operate and use said roads aud telegraph, for all purposes of communica¬ tion, travel, and transportation, so far as the public and the government are concerned, as one continuous line, and in such operation and use to afford and secure to each oqual advantages and facilities, as to rates, time, and transportation, without any dis¬ crimination of any kind in favor of the road or business of either of said companies, or adverse to the road or the business of any or either of the others. It does not seem that it was iutended by the resolution that so wide a field of examination should be traversed as would necessarily be re¬ quired in order properly to discuss the whole controversy, or that it was wished that any expression of opiuion should be given by the Executive upon controverted questions of law and fact. The resolution asks only that the President inform the Seuate " what legal impediments, if any, exist which prevent him from executing said laws" [referred to in the preamble of the resolution] "in accordance with the obligations accepted and agreements made by said Union Pacific Railroad Company and branches with the United States, as stipulated and agreed upon iu the several acts aforesaid." It thus assumes that the allegations of the pre¬ amble are well sustained, and requests this information upon that assumption. Upon an examination of the various acts regarding this subject, I do not find any specific authority vested in the President which enables him,in his executive capacity, to enforce such acts, or to oblige the Union Pacific Company to desist from an unlawful operation or use of its road, if it is engaged in such unlawful operation or use, or to compel an appropriate operation and use of such road. There is nothing that he is to do of an administrative character, nor is he empowered to ascertain whether or not the law has been violated by the Union Pacific Railroad, and to take executive action thereon. It is contemplated by the acts that the question whether the Uniou Pacific Company violates the obli¬ gations and duties which are imposed upon it, and the agreements it has made, is one for judicial determination, and that the law in relation thereto will be executed through the courts upon proper proceedings had therein. The President is charged with the execution of the laws in reference to the Union Pacific Company only in the same sense that he is charged with that duty as to all the laws of the United States. Whether duties of a different character can or should properly be im¬ posed upon him iu regard to these railroads, whether additional legisla¬ tion should be had so that by means of proceedings other than judicial different * remedies may be provided to restrain any violation, or to enforce any obligations of law, are questions for the consideration of Congress. The judicial remedies in terms provided by these acts are to be found in the act of April 10, 1869, section 4, by which it is enacted " that the Attorney-General be, and he is hereby, authorized and directed to inves¬ tigate whether or not the charter and all the franchises of the Union Pacific Railroad Company and of the Central Pacific Railroad Company < have not been forfeited, and to institute all necessary and proper legal proceedings," &c. In reference to this statute, it may be observed that it is contended that it is not prospective in its character aud has rela¬ tion only to proceedings which refer to matters occurring before the date of the act. The act of March 3,1873, also provides iu the last clause of the fourth section that " the proper circuit court of the United States shall have jurisdiction to hear and determine all cases to compel said Union Pacific Railroad Company to operate its road as required by law." 4 union pacific railroad. No explicit authority is given to the Attorney-General under this act to file such a petition on behalf of the public, and it is contended that with¬ out such authority he is not entitled to file such a petition as the repre¬ sentative of the public interest. Without considering the weight of such objections, it may be said that, should it be deemed proper that legal proceedings should now be instituted on behalf of the public in the name of the Attorney-General, in order to determine whether or not the Union Pacific Railroad Com¬ pany, or either of the companies connected with it, is operating its road in violation of law, it would seem desirable that some legislation should be had by which provision so explicit should be made that the discus¬ sion of such questions as those referred to would be unnecessary. In this connection, it is, perhaps, proper to say that before any such suit could be brought to trial in the ordinary course of judicial investigation, it may reasonably be expected that the questions in controversy in ref¬ erence to connections and discriminating rates between the Union Pa¬ cific and the companies connected with it and its branches will be de¬ cided in the case referred to between the Kansas Pacific and the Union Pacific Companies. It is to be anticipated, however, that one party or the other will be dissatisfied with the judgment of the United States circuit court, notwithstanding the admitted ability of the judges who preside in it, and that it will be necessary to a final settlement of the disputed points that they shall be discussed in the Supreme Court of the United States. Besides the legislation referred to, the act of June 20, 1874, provides for criminal proceedings upon a refusal by any officer or agent of the companies authorized to construct the Union Pacific, or its branches, to operate or use the road under his control, "so far as the public and the government are concerned, as one continuous line, or shall refuse in such operation and use- to afford aud secure to each of said roads equal advantages and facilities as to rates, time, or transportation, without any discrimination of any kind in favor of or adverse to the road or business of any or either of said companies." Until the rights of the respective railroad companies are legally ascer¬ tained aud determined it would not be advisable to attempt to have them defined through the medium of criminal proceedings, such as are contem¬ plated by this statute, and it is not understood to be the wish of either company that such attempt should be made. Very respectfully, your obedient servant, CHARLES DEVENS, Attorney-~Gener ah To the President.