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It will not be maintained, however, that the government of the United States cannot take any action, which is necessary to main tain or save itself, hence in times of emergency, as of the exist ence of war, there certainly does exist an implied power that the government may construct, own and control any lines of transporta tion by land or by sea, which are deemed necessary for its preservation and perpetuation.

This, however, involves a different principle, or rather does not include the question of government owning the lines of trans portation, which are used for the transportation of passengers and for the transportation of all our productions and commodities, which make up our commerce.

There are no expressed powers in the National Constitution authorizing Congress to own these transportation lines of commerce. And if we are to assume that implied powers exist, we go beyond the limitations indicated by the decisions of our courts as to iuplied powers, for implied powers, alleged to exist, ought not to be accepted as existing unless there is in the instrument enumerating the powers delegated, that which will give assurance that the states intended to confer the power, which though not expressed, could easily be implied.

Whatever may be developed in the future regarding the powers of Congress in relation to the ownership of transportation compan ies, it must be admitted that at this time, doubts of a very serious character exist, as to the power of Congress to acquire and own lines of transportation.

Beyond the question of constitutional law, we may enter the domain of propriety as to such ownership of transportation companies engaged in the hauling of interstate commerce.

There are features of transportation that would undoubtedly be bettered by government ownership. All species of discrimination could then be eliminated. Remote communities could be reached a reasonable rates, and their people supplied with articles of com merce at a rate cheaper than railroads can be reasonably required to transport them now under existing conditions.

No doubt there are those who claim that transportation under government ownership, could be made to serve the interests of all under much more equitable conditions than now exist, and that there could be an approach to the methods that are employed by the United States Government in the transportation of mails.

It is exceedingly doubtful whether any such ideal can ever be attained in the transportation of persons and commodities.

Other improvements could undoubtedly be effected in government ownership, which do not now obtain, but these advantages are all

swept aside in the disadvantages which would surely follow government ownership, as for instance the transferring to the pay rolls of the United States the millions of railway officials, managers, clerks and employees, who constitute such an overwhelming army and make up so considerable a fraction of the population of the United States.

These employees would to a more or less extent be subject to the changed conditions which occur in political successions and in the changes which come through the elections in both State and Nation.

This objection alone is sufficient to overwhelm every favorable condition of transportation, which could be brought about by government ownership of railways.

The favorable conditions, which it is claimed could be brought about by government ownership, could be accomplished with as much ease under government control as by government ownership, for the nation and these states in their proper spheres, can exercise any reasonable supervision which will inure to the benefit of passenger and shipper, having of course proper regard for the rights which fairness would accord to those who have invested their funds in lines of transportation throughout the country.

The time time has gone by when railroad managers, political economists, legislators, or statesmen will deny the right of the government of the United States, or the states of the Union to control the affairs of common carrier corporations in the discharge of the public functions for which they were given existence.

English and American jurisprudence uniformally sustain this posi tion. There are few wavers all along the line of decisions on this subject, all or practically all, pointing to the right of government to control, even to the extent of fixing rates of transportation.

Does not therefore, the government, whether National or State, accomplish everything that is desirable by control? And does it not also escape the harmful things which would come from govern ment ownership?

In some cases English and American courts may have limited the extent of control in the adjudications made, but in general the extent of control has been sustained to that degree necessary for accomplishing those things which are desirable and essential in compelling railroads to furnish at reasonable rates, good facilities, conveniences and instrumentalities in transportation.

At first many railway managers assumed that the railroad corporations were a law unto themselves, that there should be an ab

solute right conceded to them of freedom of action in construction, maintenance and operation of railways.

Gradually the interests of the public are being recognized, and there are few conservative and thoughtful railroad managers in this country who will deny the right of government control and supervision within reasonable limitations.

The absolute or natural freedom of man seems to have been with out restriction or limitations, except so far as he might be controlled by conscience.

The civil freedom of man is his absolute or natural freedom restricted so far as is necessary to protect persons and property.

So with railroad corporations, their powers in all that pertains to construction, maintenance, and operation, must be so far restricted, controlled and supervised as will insure fairness to the public and reasonableness in rates for the transportation of passenger and commodities.

When that right to supervise, regulate and control has been exer cised to such extent as will insure fairness and reasonable condi tions, then is not the mission, the duty, the responsibility, of the State and of the Nation fully performed? And should not the men who have invested their earnings, their savings and their fortunes in transportation companies, be at liberty to control their property as their interests may seem to demand.

The line of demarkation, in national or goverment control is located at the point at which the government shall arrive when it has secured fair, reasonable and uniform rates, the best facilities and instrumentalities in the transportation affairs of our country.

If the government shall go beyond this line of demarkation, it will pass into the domain of unreasonable control; encroach upon the rights of investors, disregard its obligation to those American citizens who have been instrumental through promoting railroad companies, in developing our material and industrial interests, and where it might destroy the very facilities and instruments which have made the nation great.

Fairness, justice and equity will justify the Nation and the State in going to the reasonable extent indicated, but if we discern the voice of reason, justice and equity, they seem to say "thus far shalt thou go and no farther."

The complaints of the demagogue should never lead to doubtful or harsh legislative enactment or the exercise of administrative powers, for he is a public enemy who would encourage dissension and create antagonism.

He who destroys railways or would cripple them in the perform ance of their public functions, imperils the interests of all.

In a republic the people are omniscient, yet justice demands the establishment of limitations beyond which government cannot justly go without inviting destruction.

It should be remembered, that while the government's right to control is conceded, yet that right is based upon, and cannot exist in equity, except by virtue of the reciprocal relations which must exist between the government, the State and the common carrier.

Under government control to the fullest extent necessary, as we have indicated, who would fear consolidations, mergers, communities of interest, or the pooling of freights? Assuredly these things if permitted by law, under proper restriction, would inure to the benefit of passenger and shipper.

And it is certain that the railroad corporations can never arise to the full measure of possibilities in conducting transportation, until they are given the right to merge, to consolidate, to create communities of interest and to pool the transportation of freights, all this of course to be done under public supervision, to the end that fairness and uniformity may be secured. In the accomplishment of these things the railroads can afford to transact their business and transport the commodities of commerce at a less rate than they possibly can under so many different managements and under the prohibitions which now exist.

The sooner the lines are well defined as to the extent of gov ernment supervision, the better it will be for this Nation and its commerce. The uncertainties that exist as to the extent the govern ment will go in supervision has certainly intimidated capital.

On the lines of railroads engaged in transportation, it is almost impossible to secure rapidity in marketing the productions of the land. The great trunk lines are crowded and freight cannot find its way to market, for the capacity of the roads are taxed far beyond their limits.

The transportation of freight has increased most wonderfully in the last few years. A single year marks an advance in millions and millions of tons of the productions of the forests, of agriculture, of mines and of manufacturers. So, too, has there been a marvelous increase in the receipts for transportation of commodities. The percentage of increase is surprising, both as to the tonnage and as to the earnings from operations.

Has there been a proportionate increase in the mileage of newly constructed railroads in the United States? If not, why not?

In 1900 the total mileage of the United States was 192,556 miles; in 1905, 214,477; in 1906, 220,000 or about that figure.

E-9-1906

These figures denote a percentage of increase in newly constructed railroads very much below the percentage of increase in commodities transported.

James J. Hill, one of the brightest of men, a promotor of railroads, who scarcely has his equal in this or any other land, alleges that the country needs more than 100,000 miles of railroad to be constructed as quickly as possible, in order to care for the increased demands for transportation.

Who is there who does not feel some timidity about investing his earnings, or his fortune, in securities of new railroad enterprises. in view of the uncertainties which exist regarding the extent to which the government may go in the public supervision, regulation and control of such proposed railways?

We have advocated for twenty years a reasonable control over transportation companies, to that extent, and that extent alone, which is necessary to insure reasonable and uniform rates, the best facilities and conveniences that are possible to be furnished by railroad management. And having made a careful and somewhat extended investigation of this most important public question, we feel that the government may have reached its limitations of con trol when these things shall have been permanently secured.

THE CONSTITUTION AND A RAILROAD COMMISSION IN PENNSYLVANIA.

Can a railroad commission be legally created independent of the Department of Internal Affairs?

Declarations have been made during the year covered by this re port by all political parties, favoring the establishment of a railroad commission in Pennsylvania, to be charged with the duty of super vising the affairs of transportation corporations.

Whatever necessities exist now with reference to a closer supervision and control of transportation affairs existed in a more intensified form years ago. Indeed, the demands for regulation and for the prohibition of abuses twenty years ago were heard on every side and went unheeded. With the limited powers given the Department of Internal Affairs in the Constitution and the several acts of Assembly relating to railway supervision, together with reforms introduced by railway managers themselves, it is found that the abuses which existed years ago have been largely abated. The truth of this statement with reference to improved conditions will not be disputed by any one who is conversant with the subject

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