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with the best results. The mere collecting of antique newspaperclippings is, beyond the passing amusement of the hour, of very small utility, and very trifling exemplary value, and certainly of not the slightest assistance whatever in solving the problem of the American railway.
Just as Mr. Hudson everywhere treats the pool as a cornering of transportation facilities, and as an act of hostility to the public; so he treats the feature of over capitalization which is sometimes necessary to obtain funds for the building of trunk lines to open barren territory to civilization (the American policy, by the way, which has added hundreds of millions of dollars to the wealth and dignity of the nation) as “stock-watering.” The power of this nation among her sister nations lies in her wealth. Her annual surplus is a better coast defense than all the forts that could be built-than all the torpedoes which could be sunk, than all the iron-clads which could be floated. Doubtless Mr. Hudson himself, dragon of public virtue as he poses himself, would ask the temptation of more than a cent for cent investment to build a railway through a howling wilderness, and to wait for settlers to open it up, to wait patiently through the pioneer-period—the outskirt-period—the development period—for the returns that only compacted improvement brings.
Over capitalization has been a purely American device for civilizing, at once, vast areas which, under old systems, it would have required centuries to bring out of barbarism and uselessness, so that time could be saved by the century and the wealth of the nation reduplicated by the hundreds of millions. It does not occur to Mr. Hudson, the scope of his vision is not large enough to include the idea that it may be patriotism as well as private acquisitiveness which dictates the investment of private capital in that which can only make returns to one's children. Somebody said lately to De Lesseps. “Chevalier, this Panama Canal is costing immense amounts of money. What do you suppose it will ultimately cost.” “Who cares how much it will cost,” replied the grand old man. “It is for eternity!” And so we have the Railways of the United States. They are built and will not be
abandoned. They are for eternity, and so far as we have gotten along, they have added to the power, wealth and dignity of the nation.
OF EMINENT DOMAIN AND WHAT IT ENTAILS.
ANOTHER of Mr. Hudson's specifications against railway companies, and one in which he finds not by any means the least danger to this Republic, is that railway companies usually possess by virtue of their charters, the power or duty of exercising in certain precise cases, the power or facility of eminent domain; that is to say,—that modicum of the power of the state by acceptance of a grant of which a railroad company is understood to accept the burden of certain fixed public obligations.
Mr. Hudson's definition of this facility of railroad companies is as follows : “ To take away the property of A and give it to B for the latter's private use and behoof, provided always that B is a railway corporation” (page 114). Now, actually and practically, the above is a remarkably comprehensive and exact definition, not of eminent domain but of what eminent domain is not, and of what it never can be under any circumstances. Mr. Hudson himself has inadvertently told us what it really is : “ Experience shows that no railroad twenty-five miles in length can be built without the resort to the power of the State, for there are always some proprietors who demand an exorbitant price, or altogether refuse to let the railway pass over their property. ... No railroad of greater importance than a mere switch ever has been or ever can be built without invoking the sovereignty of the Government in its behalf” (page 111). Under such circumstances, where a man's neighbors have decided that they want a railway, the law—so far from taking anything from anybody-simply steps in and applies the well-known maxims
that a man must use his own so as not to injure his neighbors ; and that, in civilized communities, every citizen yields a fraction of his rights for the general good and society of all. To enable the railway to enforce the general consent, it is convenient to apply these maxims against the recalcitrant citizen by the fiction that the Government endows the railroad company-for the emergency and for the emergency only-with a portion of its own (the Government's). right to take the property of its subjects in cases of necessity (as for the public good in times of peace, or the public defense in time of war, etc.). This force is applied, however, not at the expense of the Government, nor even at the expense of the recalcitrant and unpleasant citizen who will not accord with his neighbors, but at the sole expense of the railway company. The result is that, instead of the citizen suffering for his obduracy and obstinacy, he is actually rewarded-since he ultimately receives a greater value for his land, without being mulcted in any of the expenses of the taking. So far as he is concerned he has lost nothing by his contumacy; whereas the railway, by his contumacy and without fault on its part, has been put to the costliest plan of acquiring the land. For the purchase of any strip of land, at almost any price, is invariably cheaper than the process of condemnation by private “ view," which, both in time and money, is by all odds the very costliest known method of obtaining a railroad's right of way. These “ views” are, by statutory requirement, made by persons of the vicinage, who, in estimating their neighbor's land, estimate their own; as individuals it can be readily imagined they are not over-solicitous to save the corporation expense, nor to estimate at all without liberal compensation to themselves for their own services: and the result can be readily computed. The laws of eminent domain, as appertaining to railway companies, and their operation in cases of land condemnation, are too technical to be elaborated here. But it may be said, as a matter of fact, that their application ceases with the single act of the acquirement of land. Nor is the power of the Government over the citizen ever, except in this solitary instance, exercised by the railway company from the beginning to
the fine and term of its career; and, moreover, the grant itself is not only not against public policy and interest, but is directly in favor of the public: being positively granted to the railways as against themselves rather than in their favor, so far as a possible question between the railways and the public can possibly arise.
What is known as the police power of railways, which is derived from and determined by the local police power of each separate community, although sometimes granted by proclamation from the State Executive, since Mr. Hudson has not assailed it, I will not defend. In the granting of railway passes I confess my inability to discover a crime against the State. Wherein they differ from the orders that a manager issues to seats in a theatre—especially since his theatrical privileges come from the people by special license-I am unable to perceive. 66 Passes" are the small currency of the railway company, payable for favors not estimated in, or convertible to, money; and are used just as the small trader bestows an apple or a toy upon the juvenile carrier between his small customer and himself. The company's rule is to issue passes only for services; but the rule is construed liberally to apply to prospective as well as actual services, and to count presumed influence—or, perhaps an assumed or expected favorable mention of the particular corporation issuing them—as a service. But, even if issued for no service, real or prospective, I know of no human being, institution, or concern, public or private, that is not allowed to perform acts complimentary in their nature, or even entirely gratuitous. In the course of many years' experience I have seen fully as many acts of public charity as of private compliment performed by railway companies. A friendless and penniless woman, whose husband has been left behind or has deserted her, en route she knows not whither, can be transported to a desired destination, if not in the discretion of the conductor at least by telegraphing for permission to the proper department. And there is not a railway in the country where such gratuitous services are not constant, and as unchronicled and unheralded as they are constant. Nevertheless, while I frankly say that, for one, I can not see where the granting either of charities or of
passes militates against the public character imposed by Legislatures upon railroads, or is forbidden by the fact that to facilitate its construction the railway company once enjoyed a parcel of the State's power of eminent domain-I must admit that (except as to employés) the system has always been a nuisance to the railway companies and one which they have constantly labored to abolish. It is impossible to forecast what quantum of credit Mr. Hudson and his kind may take unto themselves for the Interstate Commerce Act, which has at last promised the railways a' grateful relief from the pass-beggar. But if that act shall abolish both pools and passes, public sympathy will be with the honest shipper who must pay increased tariffs, rather than with the local Solon who wakes to find that—while screaming at “ discriminations" and " long and short hauls”—he has actually been emptying his own pockets of the passes with which he has insisted that they be lined.
The power of the Government over the citizen, then, except in this solitary instance of land condemnation, being never exercised by a corporation : being bestowed invariably and always for the benefit and in the interest of the people, and not of the railway company; taking always the shape of a duty and never the shape always the shape of a duty and never the shape of a privilegegranted that railroads are quasi-public corporations, it would appear to follow—since they are only quasi-public, that they have still some elements of private proprietorship; and (since it is their private and not their public character which continues) that it is by this private character they must be continually judged. Granted that they must carry freights for the public in such a way as not to injure either the public or the freight in the carrying, most emphatically (it seems to me) it does not follow that they must add to the value of the freights they carry by charging only such rates as the public, or the owners of the freight, insist on. Mr. Hudson, as a member of society, has a presumptive right to light and air; to life, liberty, and the pursuit of happiness. Supposing that society should pass one law affirmatively compelling Mr. Hudson to recognize his neighbor's rights to life, liberty, and the