PART I

RESTRICTION AND REGULATION NOT BASED PRIMARILY ON THE "COMMERCE CLAUSE"

CHAPTER XIII

RAILWAYS AND THE PUBLIC DEFENSE

As a general thing, when an act of Congress has declared a railway or a railway bridge a post route it has at the same time made it a military route, and, nearly always, a provision for reasonable mail service has been accompanied by one for transportation of troops and munitions of war free or at reasonable rates. A great exigency like the Civil War called forth the exercise of great control over railways; while ever, though to a far less degree than in European countries, the contingency of war, leading to constant preparation for the public defense, has had more or less influence in molding the relations existing between our government and the railways.

RAILWAY AFFAIRS DURING THE CIVIL WAR

The outbreak of the Civil War at once brought problems of transportation. Early in the conflict the resistance to the passage of Union troops through Baltimore, the destruction of the bridges of the Wilmington and Baltimore, and the refusal of the Baltimore and Ohio to transport troops and supplies, involved as the secretary of war reported in 1861- the necessity of seizing such parts of railway lines as were essential to

unbroken connection between Washington and the North.1 The secretary recommended "the propriety of an appropriation to be made by Congress, to be applied, when the public exigencies demand, to the reconstruction and equipment of railroads, and for the expense of maintenance and operating them." And in the same strain, President Lincoln advocated that Congress provide for the construction of a railway, on the ground that military expediency demanded such a connection between the loyal regions of Tennessee and western North Carolina, and Kentucky. The route of the road would be determined by Kentucky and the general government in co-operation, and, the work would be, to use the president's words, "not only of vast present usefulness, but also a valuable permanent improvement, worth its cost in all the future." Thus, in this case, ground was taken far beyond immediate military expediency. War was on, and, with a western man at the head, the executive branch sought unwonted power over railways as a necessity for its efficient prosecution.

THE PRESIDENT AUTHORIZED TO TAKE AND OPERATE RAILWAYS

Nor was the legislature slow to sanction the extraordinary power demanded. In the following year, 1862, an act was passed to authorize the president of the United States in certain cases to take possession of railways and telegraph lines. Under this measure the president was authorized, whenever, in his judgment the public safety required, to seize any or all railway or telegraph lines in the United States, their offices and appurtenances; and to place under control the officers, agents, and employees so that they should be considered a part of the military force of the United States, subject to all the restrictions imposed by the rules and articles of war. Three commissioners appointed by the president, by and with the consent and advice of the Senate, were to determine damages and compensation due any company as a result of the operation of the act, their decision to be final. All transportation of troops and military

1 Exec. Docs., 1861, no. 1, p. 25.

2 Annual Message, Dec. 3, 1861.

supplies and property was placed under the immediate control of the secretary of war and his agents.3

When the bill was up in the Senate, Mr. Wade (O.) explained that it was merely a war measure. In the course of the war railways would inevitably be needed whose management would be hostile and it would then be necessary to seize and hold them. It would not affect any road whose owners were loyal and willing to let the government use it. He supposed that under the war power the executive might do all this without such an act, but that it was much better "that it should be done by authority of law than by what may be considered by some as an usurpation."

That there were some who so considered it is manifest from the remarks of Mr. Pearce (Md.) which followed. It seemed to him that this bill was a very extraordinary one; it had taken him by surprise;-and he then launched into a defense of the Baltimore and Ohio Railroad Company, which plainly shows that the bill was considered as largely directed against that road. The lines from Philadelphia to Baltimore and from Baltimore to Washington had, according to his statement of the case, acted with exemplary patriotism and efficiency. What necessity was there for the government taking the whole of this vast property involving over twenty-six million dollars, and subject to a thousand difficulties and inconveniences? Having become the owner of the road what provision would the government make for transporting commercial tonnage and for the payment of interest on the road's funded debt?

The bill passed the Senate, 23 to 12, and the House favored it, 113 to 28. A majority of New England's votes favored the measure, and, with the exception of Illinois and Iowa, the West supported it strongly. The middle states were divided. Kentucky cast her two votes in the Senate against the bill.

Evidently, however, there were misgivings over the passage of so strong a measure, for at the same session a joint resolution was passed which placed certain limitations upon the power of the executive under the act." It was not to be so construed as

3 Cong. Globe, 1861-62, p. 506.

4 Ibid., p. 508.

Ibid., p. 3274.

to authorize the sunstruedin of any railroads, or the completion of any line of mad the greater part of which remained un pleted at the time of the approval of the act, or to engg in any work of railroad construction; and so much of the act as authorized the president to extend and complete any railroad was repealed. It is probable that there was some ground for this action, for a dremment of this time suggested that the act authorizing the president to take possession of railways might be made the nucleus of a comprehensive system of govemment railways'

REQUESTS AND PROPOSALS FOR GOVERNMENT AID

Such being the need of the government for greater transpor tation facilities it is not surprising that steps were taken, not only to take over existing railways, but also to aid the eonstruction of new ones. Almost at the outbreak of the war came the following proposition from the Metropolitan Railroad Company. The company asked assistance in constructing a new through line from Washington to New York via Baltimore by means of an extension to connect with the Philadelphia and Wilmington or Northern Central of Pennsylvania, which extension would also open connections with the West. During the continuance of the war this line would be placed at the disposal of the government for the transportation of troops, military supplies, and the mails at reasonable rates. The petition stated that the Baltimore and Ohio was charging an average of 6.5 cents per ton mile for government freight, and nearly 4 cents a mile for passengers, while the Metropolitan company was limited by charter to 4 cents per ton per mile for freight and 3 cents per mile for passengers, and would only charge the government a minimum of 2 cents a head per mile. In return the government would loan its credit to the amount of $2,000,000 in guaranteeing the company's bonds or in the form of United States bonds, this advance to be secured by mortgage on the company's property.

Nothing came of this memorial.

Sen. Docs., 1861-62, 5: no. 32.

"H. Misc., 1861-62, no. 65.

At the next session the memorial of S. P. Case in behalf of the Reading and Columbia Railroad Company was presented. The new construction involved consisted chiefly in an eighty mile branch from Washington to connect with the Columbia and Reading and so join the capital with New York and eastern and northern points. A long series of objections against a government railway were presented, as the great and inopportune expense; the fact that such a road would run but a few miles distant from existing lines; "and lastly, it is never good policy for the government to enter upon a system of internal improvement, however vital to the functions of government, if the ends of government can be subserved by a judicious intervention of private enterprise." Coupled with this line of reasoning was a strong statement of the evils of the present service between Washington and New York, in which monopoly had brought about high fares and poor accommodations.

The bill (S., No. 508), which was introduced, provided for 212 cent fares and reasonable rates, preference to be given to government supplies. It failed of passage.

During this same session the committee on military affairs reported favorably on a memorial of the corporation of Washington in behalf of a line from that point to Pittsburg. The helplessness of Washington, dependent as it was upon a single road, was dwelt upon, and it was stated to be an important consideration that this would form the shortest connection with the Pacific railway just authorized. A guarantee of bonds was the form of aid asked.

Another means of solving the problem was proposed in a bill the object of which was to enlarge the powers of existing railways and condemn property for their use.10 The bill declared the several lines between New York and Washington via Philadelphia and Baltimore to be military and postal roads in the service of the United States; and for the purpose of securing a more safe, speedy, and economical transportation of troops,

8 Sen. Misc., 1862-63, no. 26.

Sen. Rep., 1862-63, 1: no. 81. This project differs from the others mentioned in that they concerned a road from Washington to New York. No ald was given.

10 Cong. Globe, 1861-62, p. 2108.