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RAILWAYS IN THE UNITED STATES.
TEXT OF THE REPORT.
NOTE OF INTRODUCTION.
One of the chief embarrassments in the exercise of adequate governmental control over the organization, the construction, and the administration of railways in the United States is found in the many sources of statutory authority recognized by our form of government. The Federal Constitution provides for uniformity in statutory control, so far as interstate commerce is concerned, but it does not touch commerce within the States, nor, as at present interpreted, does it cover the organization of railroad corporations or the construction of railroad properties. These matters, as well as the larger part of that class of activities included under the police jurisdiction, are left to the States. Such being the case, the development of an harmonious and uniform railroad system must be attained, if at all, by one of two methods. The States must relinquish to the Federal Government their reserved rights over internal commerce, or, having first agreed upon fundamental principles, they must, through comity and convention, work out an harmonious system of statutory regulation.
It is no part of this report to discuss the relative merits of these two methods of attaining effective governmental control over railroads. It undertakes, rather, to make a tabular exhibit of statutory law as it existed in 1890 and after the adjournment of the State legislatures in 1902. It also includes a statement of all acts which repealed, amended, or in any way modified State railway laws during the past twelve years, thus indicating the most recent tendencies in State statutory regulations. The number of items which this report subjected to classification exceeded 13,000, every feature of statutory regulation being covered, with the single exception of the law of State taxation of railways and other transportation agencies.
EXPLANATION OF THE TABLES.
In order to make intelligent use of so large a mass of facts as is gathered together in this report, it seems proper to explain somewhat in detail the principle of classification and the form of presentation. The abbreviations observed throughout the tables are the following:
The first table which follows this text is in the nature of a key to all subsequent tables. It submits, first, a general characterization of the regulation of railways undertaken by each State. In it is also found a statement of the particular compilation of statutes or laws to which reference by sections, chapters, or pages is made in subsequent tables. It not only gives the authority for the statements found throughout the report, but serves as an index to the particular statutes now in force, thus enabling any one who may so desire to refer easily to the details of a statute relative to any particular phase of railway legislation in any particular State.
The scheme of classification adopted divides the whole body of railroad law into two parts: the first including those statutes which pertain especially to State railroad commissions, while the second embraces all other statutes by which the organization, administration, or operation of railroads are directly affected. The statutory character of State railroad commissions is presented under three headings:
Organization of railroad commissions.
Powers of railroad commissions. The classification of facts included in the second part of this report pertains to the following topics:
Conditions of railroad incorporation.
Statutory provisions concerning penalties. From the above titles, each of which is the title of a separate table, one may learn the general scope of this report. The further classification of items may be read from the boxing in the tables themselves, or, more conveniently, from the - Table of Contents of Tables" preceding this text..
It is further the design of this report to present the general facts relative to statutory regulation of railways in such form that the laws of the several States may easily be compared, and also that the general trend of railroad regulation during the past twelve years may be seen at a glance. With these objects in view the tables have been arranged in accordance with the following plan: The boxing contains the classification already mentioned, under which, in their appropriate places, appear the various items of law which occur in the statutes. On the left hand side of each table are the names of the States, followed by a column giving the years in which legislation took place relative to any phase of the general subject covered by the table. The years 1890 and 1902 are always given, but intermediate dates appear only when legislation was enacted within that period. The condition of the law in 1890 is indicated by the insertion in the table, of tigures, or of explanations, words and figures. Such an insertion indicates that the item of law appearing at the head of that column was in force in 1890. No insertion means an absence of legislation on that subject. “Do." (ditto) under the insertion indicates that the law remained in force through 1902 and this word is always put after 1902, unless the law had been repealed before that time. The figures appearing in the tables are the references to the sections, pages, cha) ters in the statute books from which the facts asserted were taken. When they accompany an explanatory statement, they are in parentheses. As already remarked, the purpose of giving these references is twofold. They not only serve as the authority for the statements made, but they inform the reader as to the exact place where he may tind the text of the law on any given subject. This will no doubt often be found desirable, as the items appearing in the boxing are necessarily brief epitomes of frequently lengthy sections.
In a few cases, as, for example, on the subject of the power of commissions in regard to proceedings, it has seemed advisable to abandon the practice of presenting the law in the form of items in the boxing. In these cases, the general subject announced in the boxing is treated after the name of each State in one or more concise sentences, accompanied by references in parentheses.
There are a number of statutes which have been enacted by so few States, that their treatment in separate colunins would unduly expand the tables. These have been gathered in several places under the general heading of “Statutes Peculiar to a Few States.” One such column appears at the end of Tables II, III, IV, V, VI, and X, and at the end of each major division of Table XI.
It will be noticed that the exhibit of Oklahoma's laws is an exception to the general rule in that it covers only a period of ten years, beginning in 1893 when the first compilation of statutes was published. The exhibit for Indian Territory is for 1900 only. The District of Columbia is included in the tables, but Hawaii and the other insular possessions of the United States are omitted.
GENERAL CHARACTERIZATION OF RAILROAD STATUTORY LAW.
Before proceeding to particular analysis of the several tables, it may be appropriate to make a few statements as to the character of State railroad statute law as a whole. The first thing to be noticed is the incompleteness of the laws affecting railroads. Even a cursory glance at the various tables can not but impress one with the very large number of vacancies as compared with entries on almost every page. If the railroad statutes of a State were approximately complete, covering all phases of railroad incorporation, management, and control, there would be an entry after the name of that State in almost every column in the tables. Even after making due allowance for State policy, which might be inclined to relieve railroads of public control except in the most essential particulars, the fact yet remains that a very large number of subjects have never been touched by the legislatures of many States. One can not say that the statutes are not sufficiently voluminous; the difficulty is that repetitions, redundancies, elaborations, and conflicting passages account in large measure for their volume. They almost uniformly disclose a lack of logical or even orderly arrangement, and it is not surprising that many subjects have been neglected, while others, perhaps, have been overtreated. The few topics which have received anything like uniform treatment will be mentioned in their appropriate places, in the study of the separate tables.
A few of the more important tendencies in railroad legislation, as indicated by the character of the laws enacted since 1890, are worthy of mention in this connection.
Among statutes relating to the incorporation of railroads the following may be observed: Four States-Delaware, Kentucky, South Carolina, and Virginia-have abandoned the policy of incorporation by special act of the legislature, and have adopted general laws for the incorporation of railroads, while there have been no changes in the opposite direction. The change in Virginia, however, will not be effective until April, 1903, unless laws are enacted before that time to put into effect the new constitution of the State. There seems to be something of a tendency to abandon the form of general law which provides for the incorporation of railroads only, in favor of laws which are partly applicable to corporations other than railroads. No doubt the most marked tendency, however, among incorporation laws has been the extension of the power of railroad corporations to consolidate or merge with other railroads; to lease, purchase, or operate other railroads, or to hold the securities of other corporations. A study of the statutes discloses a decided movement in this direction.
Among the statutes relating to the public control of railroads four important tendencies present themselves. The first is a tendency to relinquish control over rates through the enactment of maximum rates, or similar laws, and the substitution therefor of control by commissions. Closely related to this is the tendency to extend the commission system, and especially to increase the powers of commissions over rates. All new commissions have, with one exception, been authorized to make rates; and several older boards have been granted that authority, or their powers in that regard have been increased during the period.
No more conspicuous tendency, however, may be found in the whole range of railroad statutory law, than that which aims to control technical matters-such as construction, maintenance, and operation. The session laws of almost every State give evidence of this fact. Acts were passed during the period, which modified or extended the laws on this subject in nearly five hundred particulars. The phase of the subject which received most special attention is that of
crossings, both railroad and highway. Here legislation aimed especially at the establishment of interlocking devices and the separation of grades.
Another tendency, sufficiently important to receive mention in this place, has to do with the regulation of railroads through certain special public agencies, created in place of, or in addition to commissions. Such are the Michigan - Railroad and Street Crossing Board," the Kansas “Charter Board” and “ Court of Visitation," and the North Carolina “ Corporation Commission." Eight of these agencies have been created since 1890, including the Virginia Corporation Commission, which will not be appointed until 1903. Only one has been abolished, though another, the Kansas “Court of Visitation," ceased to exist on account of a decision of the Supreme Court of Kansas, declaring the act creating it to be void.
The comparatively few broad generalizations that can be drawn from a survey of State statutory laws relative to railroads, do not indicate that the States have hesitated to legislate upon this subject; on the contrary, the difficulty of generalization arises on account of the great mass of enactments touching the organization, operation, and control of railroads to be found among the statutes. It may add something to the appreciation of the situation to pass rapidly in review the information contained in the tables to be found in the body of the report.
STATUTORY PROVISIONS PERTAINING TO RAILROAD COMMISSIONS.
Tables II, III, and IV, in the body of this report present the facts of statutory law, so far as they pertain to the organization, the duties, and the powers of State Railroad Commissions. A study of these tables discloses the following significant facts:
Number and Nature of Commissions.— In 1890 there were twenty-eight State boards, while in 1902 the number had increased to thirty. The changes during the intermediate years are summarized in the following statements. Commissions were established as follows:
In 1891, Arizona, North Carolina, and Texas.
Commissions were abolished as follows:
In 1891, Florida.
These facts may be restated in the following form:
Six States, which in 1890 were without commissions, established them during the period, of which States two subsequently abolished their commissions. Four States which had commissions in 1890 abolished them, but in two instances subsequently reestablished them. Thus eight boards in all were created and six abolished, leaving a net gain of two for the period.
It is proper to remark in this connection that in two States the abolition of the commission did not indicate a disposition on the part of the State to relieve the railroads from public control. In Kansas the step was taken in order to make room for the Court of Visitation, an experiment in railroad control, and when the act creating that Court was declared void by the Supreme Court of Kansas, the legislature reestablished the commission. In North Carolina, also, the commission simply gave place to the Corporation Commission, a body with practically the same authority over railroads that the earlier board possessed. The Court of Visitation and the Corporation Commission are more fully described in another place.
The next subject considered is the important question as to whether the commission is granted authority over rates. A study of the column devoted to this question discloses a well-marked tendency toward the “strong" commission, that is, a board with the rate-making power, at the expense of the “ weak” commission, that is, a board which has no such power. A few facts will serve to substantiate this statement. Of the twenty-eight commissions in existence in 1890, fifteen were strong and thirteen were weak; but of the thirty commissions existing in 1902, twenty were strong and ten were weak. Of the eight commissions established during the period, all but one, Arizona, were strong. Of the six commissions abolished during the same period, five, it is true, were strong, but there were compensating circumstances in three of these cases.
That is, Kansas and North Carolina created other agencies to take the place of their commissions, while Florida subsequently reestablished its commission and endowed it with greater powers over rates than were possessed by the old commission. Another fact indicative of the tendency mentioned is that weak commissions were changed to strong in three cases, Oregon in 1891, South Dakota in 1897, and Kentucky in 1900. On the other hand, in no State was a commission deprived by statutory enactment of its power over rates.
A study of the geographical distribution of railroad commissions shows that the main stronghold of the weak commissions is in the Northeast, stretching to the West through Ohio, Michigan, and Wisconsin; while the strong commissions are to be found principally in the middle West and in the South.
In the facts contained in the next column a tendency may be observed in the disposition of State legislatures to intrust to their railroad commissions authority over corporations other than railroads. The statistics on this subject are here given in tabular form. It will be seen that in no case has the supervision been withdrawn, the few deductions being due to the abolition of commissions.
NUMBER OF CASES IN Which CORPORATIONS, ETC., OTHER THAN RAILROADS, CAME UNDER THE SUPERVISION OF
STATE RAILROAD COMMISSIONS, 1890-1902.
1 Deduction due to abolition of Oregon Commission. ? Deduction due to abolition of Kansas Commission. 3 Deduction due to abolition of North Carolina Commission. This supervision, however, was conferred upon Corporation Commission. + Deduction due to abolition of Nebraska Board of Transportation.