Other congressmen erred in maintaining that reasonableness of rates depends on cost alone. This is obviously impossible

where the relation between cost and value is not certain.28 The argument which would have had it that the railway rate was a tax on production is faulty in not taking into consideration the fact that the transportation charge is a factor in the supply of the commodity. The price of grain at New York, it is true, was determined by the action and reaction of the forces of demand and supply; but the cost of transporting the grain thither is an element in the price. Thus to argue-as for any considerable period-that the price is fixed at New York and then the railway levies its rate tax, gets the cart before the horse. With competition the supply price would equal an amount sufficient to cover expenses and usual profits in the production of grain for New York, which production would include creation of both form and place utilities, i. e., farming and transportation. With transportation monopolized, the supply price at New York might be greater according as the demand varied; but the surplus over costs would go to the monopoly holder, the railway. Only the farmer's ability to withhold his produce would enable him to share in such a surplus. Part of the railway rate, then, is a cost; part may be a monopoly gain; but no part is a tax on the production of grain.

The false distinction between "transportation" and "production" here as elsewhere works confusion.

The various underlying philosophies held by those dealing with railway problems may be analyzed into four groups. There are two short-sighted classes: one of these looks for the immediate public welfare in strict railway regulation, regarding railway corporations with hostility, and its tendency has always been more or less blindly toward government ownership; the other is primarily interested in defending railways from the former. The one emphasizes the public aspect of the railway as a public highway and common carrier, making demands. incompatible with efficient private ownership; the other dwells upon the private capital invested and the beneficence of its activity. A small third class stands for public ownership of transportation agencies, believing that only thus can their pub

lic functions be properly subserved. Lastly comes the dominant group which sees in the railway question the problem of combining public service and private ownership. The duty of railway corporations as common carriers and public highways are recognized; but also it is believed that the most efficient service is only to be obtained through private initiative, and hence private capital must receive adequate compensation to insure the maintenance and progress of the nation's railway system. This philosophy it was that won in 1887. It is markedly opportunist as an economic policy and is best fitted for a rapidly developing railway situation. Whether the time may come when the best interests of the nation demand some basis of operation which is hardly consistent with private profit is not known.

The spirit of the Interstate Commerce Act of 1887 is well expressed in the words of the Senate select committee, when, in 1886, it reported: "In undertaking the regulation of interstate commerce Congress is entering upon a new and untried field. Its legislation must be based upon theory instead of experience, and human wisdom is incapable of accurately forecasting its effect upon the vast and varied interests to be affected. ''29

29 F. 214.

CHAPTER XXIV

THE DEVELOPMENT OF REGULATION FOR SAFETY

One factor working in common with abuse of livestock, discrimination in rates, and other railway evils toward the enactment of government regulation, was the great loss of life in connection with railway transportation. As the railway net spread and traffic grew accidents increased in number, until the demand for government intervention was finally met in 1893, shortly after the end of our period.

Three distinct phases of this factor may be recognized: passengers, railway employees, mail clerks and the mail service. The interests of all were to a considerable extent identical, but differed somewhat in the extent and method of the remedy. This preliminary generalization will be illustrated by the sketch of propositions for safety regulation which follows.

SAFETY OF PASSENGERS: 1866-1882

The first measure looking toward safety in railway travel was a bill introduced by Mr. Lawrence (O.) in 1866. Its object was to punish for throwing trains from railway tracks. It was referred to the committee on the judiciary and not reported.

Two years later the real history of this subject began. In 1868 a long agitation for safety of railway passengers was opened by Mr. Moorhead (Pa.) with this pioneer resolution: "Whereas, The late loss of life and injury to persons by railroad accidents and the destruction of the cars by fire call loudly for a remedy; Therefore, Resolved, That the Committee on Commerce be requested to inquire into the power and authority of Congress to make regulations in relation thereto, and if such power exists, then the propriety of having a Government inspec

tion of the rails and other materials used in the construction of railroads and of substituting iron for wood in the construction of all cars used for carrying passengers and mails."'1 The resolution was submitted with unanimous consent, and was agreed to; but, whether the committee doubted Congress' power in the premises, or whatever the reason, it made no report.

The singleness of Mr. Moorhead's motive is open to question as the profits of Pennsylvania's iron masters may well have figured along with the safety of the travelling public. The Camden and Amboy disaster of March, 1865, however, was fresh in men's minds. Then the Washington train plunged into the rear end of a passenger train, killing ten and wounding forty, fire adding its horrors.

Other accidents followed, such as that at Carr's Rock on the Erie in 1867, when, as a result of a broken rail, twenty-four lives were lost and eighty persons were injured; and the New Hamburg collision in 1871, when fire made it impossible to identify the dead. It was estimated that in Pennsylvania alone 3,181 were killed and 4,361 injured in railway accidents between 1866 and 1871.

In the latter year the Senate passed resolutions looking toward a law for the regulation of railways so as to prevent loss of human life and promote the safety of passengers ;2 and in 1872 the House agreed to a resolution instructing the judiciary committee to inquire and report on the power of Congress to secure uninterrupted transit and safety of travellers on railroads.* Neither resolution brought forth a report.

These early proposals are evidently quite tentative. They evince doubt as to the constitutionality of the action sought, both in their wording and in the committee of reference.

But in 1873 a bill was introduced by Mr. King (Mo.) which shows no such doubt. It was merely referred to the House committee on commerce; but a speech by Mr. King was printed in the Globe which is, perhaps, the most interesting and important

matter bearing on the subject to be found in congressional material.

Briefly, the bill provided that all passenger cars should be equipped with a power-brake to be operated from the locomotive. For violation heavy fines were imposed and the carrier made liable to double damages. All railways were to make an annual report setting forth statistics of passenger traffic, accidents, etc.

Mr. King recounted the horrors of various wrecks and asserted that one-third of such accidents ought to be prevented by an efficient power-brake. He referred to signals, car construction, heating and lighting, the third annual report of the Massachusetts railway commission being referred to, but centered attention upon the brake. Data were presented which showed considerable progress in invention and application of brakes operated by springs, steam, air, electricity, and water.

He held that the protection of life and person was a paramount duty of Congress. It could not be left to the states: some were in control of the railways, while in none was the remedy adequate. Congress had not left it to the states to require that steamboats have life-saving apparatus, and there was no reason for doing so in the case of steam railways.

The next bill introduced is typical of a certain group of thinkers. It proposed to revise the law concerning the right of action in case of death due to the carrier's negligence, the idea being to make the common-law remedy more adequate. This conservative method of progress was also proposed as a remedy for all interstate commerce ills.

Then there were bills to regulate the transportation of explosives and dangerous materials; to abolish the use of stoves in passenger cars (1877); and to establish a commission to examine into the causes of railway accidents (1877). This last bill was drafted by no less a person than Charles Francis Adams, who himself remarked concerning it, "This is simply a seed. If anything comes of it, it can be easily developed in any way which practical experience shall show to be necessary or expedient."

In 1876, and again in 1878, James A. Garfield introduced a