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An act of 1868, for instance, required the same privileges for all railways; but this act makes the significant regulatory exception that if any railway should refuse to check baggage or commute” fares with all railways north or south,—the bridge crossed the Potomac at Georgetown,--the right to the bridge should be denied it.14


The Wheeling bridge cases mentioned above were decided at. a time when to most men commerce meant navigation. And in Hatch vs. Williamette Bridge Co. the court based the power of Congress to authorize bridges upon its control over navigable waters. But in Hughes vs. Northern Pacific (1883) a circuit court observed of this decision that it did not deny the right of Congress to bridge or authorize the bridging of navigable waters under its constitutional power to establish post roads or provide for the common defense; and in the last year of our period, a case was settled which involved the regulation of railways. On April 6, 1886, New Jersey, knowing that a bridge

. was to be constructed across Staten Island Sound, passed an act prohibiting the erection of bridges over any navigable or tidal water which separated it from other states, without permission from the New Jersey legislature. On June 16, of the same year, Congress enacted that it should be lawful for the Staten Island Rapid Transit Company and the Baltimore and New York Railroad Company to build and maintain a bridge across Staten Island Sound for the passage of railway trains.15 The bridge was to be a lawful structure and a post route; the rates for transporting mails, troops, etc., not to exceed those on railways and roads leading to the bridge. Litigation involving the bridge was to be taken to the circuit court of the United States.

The Staten Island Company proceeded to build the bridge without getting New Jersey's authorization, and suit was brought against it. The case hung upon the power of Congress to authorize the construction of a bridge, the chief contention of the opposition being that private property was being takenin the shape of land for the piers—without due compensation. The court, however, held that the power of Congress was ample and exclusive, being independent of the consent of the state; and it cited the taking of land for post offices as a precedent in point. Its opinion was concluded in these words: “We think that the power to regulate commerce between the States extends, not only to the control of the navigable waters of the country, and the lands under them, for the purpose of navigation, but for the purpose of erecting piers, bridges, and all other instrumentalities of commerce which, in the judgment of Congress, may be necessary or expedient."'16

See above in chapter

14 Statutes at Large, 40 Cong.. 2 Sess., ch. 26, S. 4. on Territories and District of Columbia.

15 Statutes at Large, 24: 78.

Here then Congress authorized the construction of a railway bridge in spite of a state's prohibition, and its authorization was upheld as being constitutional under the power to regulate interstate commerce.


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A few years later Congress went further and incorporated a bridge company. An act of 1890 chartered the North River Bridge Company, authorizing it to build a bridge across the Hudson river between New York and New Jersey and to lay tracks thereon to connect with railways “in order to facilitate interstate commerce. The company was further empowered to enter and condemn property according as such rights were enjoyed by railway and bridge companies in New York and New Jersey. Other provisions were that the transportation of mails over the bridge should be free, the interstate commerce commission was to regulate tolls on the basis of the actual cost of the structure, and any litigation was to be taken to a United States circuit court.

In the case of Luxton vs. North River Bridge Company, decided in 1894, the validity of the act was upheld by the courts, the decision declaring that Congress under the commerce clause may create corporations to build bridges across navigable waters between two states, and take private lands therefor, making due compensation.18

16 Stockton v. Balt. and N. Y. R. R. Co., et al., 32 Fed. Rep., 9 (1887). 17 Statutes at Large, 26 : 268.


The conclusions to be drawn from the history of federal regulation of bridges for railways are clear. Congress, in the interest of water transportation, regulated bridge construction, both locating and prescribing its manner. Regulation was called for to prevent the obstruction of interstate commerce by unreasonable and discriminatory practices. And acts authorizing bridges contained provisions concerning reasonable rates over the same, the basis for such regulation by the interstate commerce commission being provided in a late statute. A railway company's bridges are part and parcel of its line, and this interference was a regulation of railways, doubly so, in that railway companies were both the builders and the users of the bridges.

Under its power to regulate interstate commerce by land Congress has authorized the construction of bridges over navigable waters within states, empowering them to take by eminent domain the land needed for piers; and in at least one case a national charter of incorporation has been granted. The fact that Congress in establishing the Pacific railways empowered them to construct bridges might also have been mentioned.

As to the place of these measures in the general history of interstate commerce regulation it should be remembered that only toward the close of the period does there seem to have been any clear recognition by Congress of the connection between them and the regulation of commerce by land. No question of interstaté versus intrastate commerce seems to have been raised and but little debate over the commerce clause is found in this connection. The courts are clear on the subject, however. In the frequent acts declaring bridges post-routes the operation of the post office and post-roads clause is seen, and the importance of bridges in this connection contributed to their regulation. But, judging from congressional debates and legislation, this regulation seems to have been based on a broad interpretation of neither of these constitutional provisions, but to have rested on the preservation of the commerce of waterways and the better promotion of the public trade and welfare in general. Some of the acts in a sort of preamble state the ground for their passage to be “a more perfect connection of

18 153 U, S., 523.

, any railroads that are or shall be constructed to the said river."




During the eight years succeeding the war, industrial development in general and railway construction in particular were very rapid. Just how similar conditions would have been had the war not occurred is, perhaps, impossible to say; but certainly one of the most important factors was the inflation of the currency which resulted from war financiering,-like an over-supply of oxygen it lent an unnatural vivacity. Farmers borrowed money to buy lands, towns and counties issued bonds to aid railways, and railways did likewise to construct the desired lines. Both farmers and railways pushed forward too rapidly. Especially in the upper Mississippi valley were railway subsidies carried to a reckless extreme, it being estimated that between 1865 and 1871 some $500,000,000 were sunk in western railways. Finally, as must be after an over-supply of that oxygen of trade, credit, the reaction came in the panic of 1873.

The farmers—and the railways, ultimately-depended upon the profitable marketing of their wheat and corn crops, and during the war and for some time after its close the prices of agricultural products were high. But with currency contraction and increased production came lower prices, while rates did not fall in proportion and were fluctuating. Then the farmers came to realize bitterly their dependence upon eastern markets for the sale of their grain, upon eastern railways for transportation, and upon eastern capitalists for their lands; and the complaints against absenteeism and monopoly became violent. So vital and commanding was the transportation factor that it was given most prominence, and, indeed, the railway methods

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