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It re-enacted the maximum rates and classification of routes of the law of 1845,15 with the additional provision that if one-half the service on any road was required at night, 25 per cent. additional payment might be made; and the postmaster-general might allow such compensation for railway post office cars as he might think fit, up to 50 per cent. of the authorized rates. On the other hand, it was flatly enacted that all land-grant roads should carry mails at such rates as Congress should provide, the postmaster-general to fix them in the interim. And a proposition or threat made by Senator Benton nearly forty years earlier16 was incorporated, to the effect that if contracts could not be made at the legal rates the mails might be divided and the letters forwarded by horse express or other means, the remainder going by wagon at less speed, and this in 1872!

The following year a different basis of payment for railway post office service was provided, distance and space occupied being substituted for weight.17 Proper furnishing, heating, and lighting were also required.

At this time the great bone of contention seems to have been the compensation paid for hauling post office cars, the demand for which was rapidly growing. The chief complaints of the companies are: (1) the compensation received for post car service is insufficient; (2) we are required to carry mail between stations only a quarter of a mile apart; (3) payment is made in orders on various post offices; (4) we carry a large number of government employees besides mail clerks and messengers; (5) and we are held liable in damages for injuries to persons in charge of the mails. A committee which took up these complaints decided that, while the rates then paid were too low, the demands of the railways were unreasonable; and, as regards the other points, with the exception of the second, the practices complained of were justifiable and warranted no change. 18

The post office car part of the railway mail service appears to have been regarded with some suspicion by Congress. In 1878, for example, when $150,000 was appropriated to cover a defi

15 Above, p. 202. 16 Bul. of U. of W., Econ. and Pol. Sci. Series, 3: 262. 17 Statutes at Large, 17 : 559. 18 Sen. Rep., 1873-74, no. 478.

ciency in the railway mail service appropriation, it was done upon the condition that no increase in the postal car service be made ;19 and in the act making an appropriation for inland mail transportation by postal cars, passed in 1879, Congress provided that the postmaster-general should thereafter separate the estimate for postal car service from the general estimate, and that he should report his reasons for making any increase or decrease in postal car service.20

The necessity for this kind of mail service, however, was recognized, and in 1881 a law was passed which, after appropriating $1,426,000 for it, provided that if any railway should fail to provide railway post office cars when required and provide suitable safety appliances) its pay should be reduced 10 per cent.21

No change was made in the payment for general mail service till 1876.22 Then a 10 per cent. cut was made in the rates for mail service on the basis of average weight as provided in 1873. Furthermore, it was provided that railways which had received land grants on condition that they carry the mails at such rates as Congress might direct should be paid but 80 per cent. of the general rates.

Finally, in 1878, the postmaster-general was directed to readjust the compensation for railway mail transportation by reducing the rates 5 per cent. from those authorized in 1876.23




The committee referred to above as taking up the complaints of the railways concerning postal cars was a sub-committee of the well-known Senate select committee on transportation routes to the seaboard. The Senate had resolved that the committee report on the nature and extent of the obligations subsisting between railway companies and the postal service, and whether

19 Statutes at Large, 20: 259. > Ibid., 20 : 357. 21 Ibid., 21 : 375. 22 Ibid., 19: 79, 82. 23 Ibid., 20: 142.

legislation was needed to guard the postal service against interruption or injury by hostile action on the part of the railways; and the committee took much evidence from the principal eastern roads.

The report opens with the following questions: “First, can the government of the United States, under this delegation of power (the post roads clause of the constitution), compel the transportation of its mails over railroads owned by private corporations without their will, and if so, secondly, in what manner and on what terms may the compulsory process be rightfully invoked ?" These questions recall that propounded by President Jackson in 1835,24 and indeed they are strikingly similar. And when it is further reflected that a short time ago (1907) President Roosevelt and others were reported to be considering the power to establish post-roads as the means for an extension of the power of this same government of the United States over the railways, the significance of the committee's question, and of the whole subject of the mail service and regulation, becomes apparent.

The report concludes that the right to establish necessarily conveys the right either to make a new road or to designate and use one already made, provided just compensation be made where private property is appropriated.

Concerning the latter of the alternatives—which is probably the only one that was seriously considered—the committee goes on to argue that as common carriers the railways are bound by certain reciprocal obligations to carry the mails as they would carry freights, for any shipper on equal terms. The government may "authorize the post office department to demand of all such companies the transportation of its mails upon payment of what is a reasonable compensation, or of a sum equal to that paid by other parties for services of a like nature.” Furthermore, regarding railways as public highways, the government might use its right of eminent domain; for the express power to establish post offices and post-roads implies the power to adopt any means “which," to use the words of Marshall in McCulloch vs. Maryland, "might be appropriate and conducive to the end." Finally, frankly putting the question, "has Congress, then, exercising its right of eminent domain, the power to take for the purpose of transporting the mails—and paying just compensation therefor—a railway within a state, without the consent of either the owner or the state?the committee answers, “We are clearly of the opinion that it has.'' 25


24 Bul, of U. of W., Econ. and Pol. Sci. Series, 3: 260; reprint, vol. I, p. 94.

Here, however, as in the case of so many reports, no immediate result followed in the shape of legislation. The significance of the foregoing lies in the light it throws on the attitude of at least a part of Congress and the people towards railways, and in the effect such reasoning must have had upon others.

That the committee did not voice the belief of all congressmen is clear from a bit of debate which occurred in 1882. In that year, Mr. Robinson (Mass.) denied that Congress could compel railways to carry mails upon its own terms. Congress could propose terms; the railways might take them or refuse at their pleasure. To this assertion Mr. Cannon (Ill.) replied, “I think we are at liberty to compel common carriers. Does not the gentleman from Massachusetts believe that we have the power to compel railroads to carry the mails by proper legislative proceedings and enactment!'' Mr. Robinson: "That is a very large question ; we have not come to that yet. As I look about the House I see gentlemen very significantly smile at the proposition. I will let it stand for what it is worth.''26

This clash illustrates not only that some denied the right of Congress to compel railways to carry the mails, but also the existence of sectional difference of opinion on the matter,-the West holding for the broader interpretation of governmental powers; the East for the broader interpretation of the rights of private property in railways.



The measure concerned in the discussion just quoted was the post office appropriation bill for the year ending June 30, 1884, and the debate upon it is an interesting and important one for the congressional history of railways. The bill proposed to reduce postage to two cents and to cut postal expenditures by several hundred thousands of dollars, the heaviest reductions falling in postmasters' salaries and special railway facilities. This latter item was to be cut largely because of inability to secure the desired facilities to the West and Southwest (some said this argument was insincere), the proposed special service from New York to San Francisco being blocked, for example, by the refusal of the Chicago-Omaha roads. The railways based their refusal on the fact that under the special facilities arrangement the postmaster-general fixed their schedules and required about forty miles an hour.27

26 Ibid.

36 Cong. Rec., 1882-83, 14: 294.

Perhaps the chief issue in the House was the proposition, amendatory to the bill, to grant $600,000 as a fund for necessary and special railway facilities. The special facilities arrangement seems to have given satisfaction to neither party concerned: the railways constantly complained of insufficient compensation and the difficulty of keeping the schedules fixed by the post office department; while congressmen stated that these corporations had made the transportation of the mails their most profitable business. It was freely charged in Congress that the fund was used to subsidize New York newspapers and three eastern railways.28 The arrangement was maintained through threats from the railways to withdraw facilities, and some bitterness was shown in attacking them during the debate. But beyond doubt it brought considerable progress in the rapidity and efficiency of the mail service, 29 and it was commended by contemporary postmaster-generals.

Those opposed to the proposition argued that this was merely a bribe fund; that the law already provided that mails must be carried on the fastest trains, when desired, upon penalty of a

?? Ibid., p. 296. By the “special facilities fund," as it was generally called. is meant :in appropriatior. niade by Congress in 1877, and continued thereafter, to be used by the postmaster-general for securing special facilities in the way of rapid mail service on the trunk lines. This action followed the abandonment of fast mail trains on the New York Central in 1876 caused by the decreise in mail payments made that year. The fund in 1877 amounted to $150,000 (Statutes at Large, 19: 384) and was increased in succeeding years up to $600,000.

28 E. 9., ibid., p. 3293,-New York Central, the New Haven, and Penna. 20 Sen. Erec. Docs., 18 Cong. 2 Sess., no. 40, p. 106.

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