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that the power of the several states to impose terms upon companies constructing railways must be subordinate to congressional power to regulate commerce.

Senators Morrill (Me.), Fessenden (Me.), and Davis (Ky.) opposed the bill on strict construction grounds. They believed that when a state had constructed an improvement and thus increased facilities for commerce, it belonged to the state and there was no reason for government interference. Mr. Davis held that, while the state had no jurisdiction over interstate commerce, the only way in which Congress could constitutionally interfere was by constructing a road of its own.

It may be said that in general the opposition stood for laisser faire, individualism, and a narrow interpretation of the constitution; and the burden of their plea was for Congress to keep its hands off, for this was a question for the courts. The states alone could authorize the construction of railways within their bounds; hence they could impose such restrictions as they saw fit.

As amended, the act was finally passed with 22 ayes to 19

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noes. 29

2Ibid., p. 2876. result:

An analysis of the vote by sections gives the following

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Where 2 votes are not cast it indicates an absence, or, in the case of V. J., only one Senator held office at the time and was absent.

It simply authorized any existing steam railway to carry interstate traffic and to receive compensation therefor, -not to affect stipulations between the government and any railway for free transportation,-and did not prohibit a state from forbidding the construction of new railways. It would be effective against the Camden and Amboy's persecution of the Raritan and Delaware Bay, but would not remedy such situations as confronted the Cleveland and Mahoning 30


In 1869 the legislature of Ohio passed an act incorporating certain individuals as trustees for the city of Cincinnati with power to borrow $10,000,000 on the credit of the city for the purpose of constructing a railway from that point to Chattanooga.31 The project, of course, involved a right of way across the state of Kentucky, which privilege that state refused, passing a tax law which would have killed the road; and, in 1871, a bill was brought up in the Senate for promoting the construction of the road, the Cincinnati and Southern, as it was called. 82

The reason for Kentucky's opposition to the Ohio project was no doubt to be traced partly to the municipal jealousy which existed between Cincinnati and Louisville. Moreover, Kentucky

* The act was as follows: Whereas the constitution of the United States confers upon Congress in express terms the power to regulate commerce among the several states, to establish post roads, and to raise and support armles : Therefore, Be it enacted, etc.. That every railroad company in the United States, whose road is operated by steam, its successors and assigns, be, and is hereby, authorized to carry upon and over its road, boats, bridges, and ferries, all passengers, troops, government supplies, malls, freight, and property on their way from any state to another state, and to receive compensation therefor, and to connect with roads of other states so as to form continuous lines for the transportation of the same to the place of destination : Prorided, That this act shall not affect any stipulation between the government of the United States and any railroad company for transportation or fares without compensation, nor impair or change the conditions imposed by the termg of any act granting lands to any such company

; nor shall it be construed to autborize any railroad company to build any new road or connection with any other road without authority from the state in which such rallroad or connection may be imposed. (p. 2871.)

* Cong. Globe, 1871, Appendir, p. 5; Williams, Revised Statutes of 0., 8: 809. The act was general in its terms, but practically applied to Cincinnati alone. It provided for purchasing rigbt of way and for taking land for bridge abutments. m2 id., p. 73.


had herself chartered some five different railways between the Ohio river and the Tennessee line, and under these circumstances not unnaturally resented the intrusion of a foreign corporation.

Senator Davis (Ky.) made a long speech against the bill,92 taking the ground that this was an unconstitutional interference with state affairs. This corporation of Ohio's was coming and asking Congress to pass an act handing over to it all the sovereignty, jurisdiction, and eminent domain of the state of Kentucky along the line of its railway to the extent of maintaining and governing it forever; Congress possessed no power to pass such an act.

The supporters of the bill won a point in getting it referred to the committee on commerce rather than the judiciary committee; but it was not passed at this session, and at the following session we find Mr. Sherman reporting that as Kentucky had recently passed a law on the subject, the bill had better be laid aside.34


Briefly the events recorded in this chapter are as follows: New Jersey, having granted a monopoly of transportation across her territory to the Camden and Amboy, did not have adequate facilities to meet the exigencies of war; another route was used by the government and was punished by the state courts for that service; it appealed to Congress and the House passed a general bill to authorize railways to carry interstate traffic. At about the same time Pennsylvania revoked a charter to an Ohio railway for selfish reasons, and again, the House being appealed to, it passed an act authorizing the Ohio road to build into Pennsylvania. In both cases the Senate refused to concur with the House. Finally, in 1866, a general bill was passed to facilitate commercial, postal, and military communication among the

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88 Ibid., appendix, p. 5 ff.

84 Ibid., 1871-72, p. 1950. The writer can find nothing concerning this mat. ter.

The road was built to Chattanooga and soon leased to the Cincinnati, New Orleans and Texas. The city of Cincinnati invested some $18,000,000 in the road and has received good returns.

states. This did not authorize railways to build into a state without its consent, and in 1871 Kentucky refused admittance to another Ohio company. A bill in favor of the company was not passed.

Perhaps the most significant feature of the congressional action in these matters is the use made of the power to regulate commerce among the states,—to that time the most extensive use made with regard to the regulation of railway transportation. The importance of the long debates over the power of Congress under the commerce clause" of the constitution as an introduction to the regulation of interstate commerce is plain.

The prominence of the post roads clause is also noticeable.

The regulation resulting from the need of breaking state monopolies was entirely negative in character, that is, it did not positively, and in a substantive way, regulate interstate commerce; but merely broke down and forbade barriers to such commerce on existing railways. There were predictions of a more extended use of the power over interstate commerce, and the act of 1865 was referred to as a precedent along this line, but the act itself was negative.

The general occasion for the passage of this act may be said to have been the breaking up of the old, narrow state policies as to commerce. A report made in 1829 by the Pennsylvania senate on granting the right to a foreign railway to extend into the state is illustrative of the early conditions. It argued that, “The State of Pennsylvania has projected and is now carrying into execution an enlarged and comprehensive system of internal improvement, designed to furnish to its citizens the advantage of a cheap transportation and an easy access to market; and to make its own city that market;

and this great work, involving an immense expenditure, is to be constructed at the expense of the State; and it is asked of the legislature to give a rival city the privilege of intersecting these great improvements at a point within its own territory, for the purpose of conducting the trade from Philadelphia to Baltimore, to enable that city to reap the benefits of the system of internal improvements executed at the expense of this State, and to deprive the State of the revenue derived from the trade of its own commer

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cial city, and of the large amount of tolls which it is confidently anticipated will be derived from the great line of communication from Middletown to the city of Philadelphia.

The war with its nationalizing influences, the development of an eastbound traffic in the West, the general railway expansion and accompanying commercial development-all these factors united at about this time to break down the narrow state policy. The growth of the railway mail service, too, might be mentioned in this connection.

The interests or sections which most strenuously opposed state obstructions were the post office and the war departments, the commercial interests of New England and New York, the agricultural sections of the West, and travellers to and from Washington city. The war brought longstanding trouble between New Jersey and Maryland railways and government departments to a head. New York merchants had long complained of the obstruction presented by New Jersey to their commerce with the South and West,36 and New England was interested for similar reasons, as well as from her growing dependence upon the West for her food-stuffs.

Following the war there was a widespread reaction against corporations, monopolies, etc., which was turned toward railways in particular, a writer in the North American Review for 1867 dwelling upon the "monopolizing tendency" in the carrying trade, and holding it to constitute a problem on a par with that of southern reconstruction.87 The shameless use of political power by the railways was also the frequent subject of comment.

* Ringwalt, Trans. Systs. in the U. 8., p. 148. 26 See Bul. of U. of W., Econ, and Pol. Sci. Series, 3: 244. 37 P. 429.

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