Par. VII. The General Assembly shall en force the provisions of this article by appropriate legislation." Under these sections, the regulation by law became not only a legislative right, but a legislative duty. The Constitution on this point is not simply permissive, but mandatory. It might, therefore, suffice to refer to these provisions, as already settling the whole matter by the same broad authority as that under which the General Assembly itself holds its sessions, and under which it exercises any legislative authority whatsoever. But there is no need to rest the right upon mere authority. Powerful and discriminating views of the just grounds upon principle, on which the legislative right rests, form THE BEST BASIS OF LEGISLATIVE ACTION in the premises. These grounds will grow rest. Georgia, moreover, in this matter, is in good company. The same conclusions with hers as to the right, and the mode of its exercise, have been reached by many of the most advanced states of the Union, and the most enlightened countries of Europe. The laws enacted on the subject have likewise been tested by the judicial tribunals, and sustained by them thoroughly-both abroad and at home, in the State and Feberal Courts; so that no right of legal regulation is now more thoroughly recognized than the right in question, that of regulating railroad corporations by law. ours, as the regulation of roads, bridges, ferries and turnpikes-of common carriers, inn-keepers and the like-nearly all of these subjects relating, it will be observed, to 'transportation" We give a rapid summary of the classes of cases in which legislative control has been for ages exercised as a mere matter of course, and without question. 1. CORPORATIONS, being dependent for their very existence on legislation, are subject to whatever conditions the Legislature may originally impose, either expressly or implied. Here we would observe, however, by way of proper caution, that, while as a mere creature of Legislature, it is so subject to conditions, the action of the creative body should never be capricious or arbitrary, but the conditious and regulations imposed should be themselves well considered, reasonable and just. 2. FRANCHISES carry with them the right of regulation, unless exceptions are granted; of such exceptions more will be said hereafter. 3. SPECIAL PRIVILEGES, for a yet higher reason, carry the same right; for instance, the right of way through private grounds, in which the right of eminent domain is brought into play, not for mere private use, but for the public use, so as necessarily to involve the right of protection against abuse. 4. REASONABLE FACILITIES, under such circumstances, are to be secured to the public, and the failure to provide for them is a failure to fulfill the legislative duty. 5. Again, MONOPOLIES are subject to regulation by law. Such a monopoly exists in the case Yet, there are intelligent and thoughtful of railroads-often by law, always in fact. The men, possibly members of the General Assem- reasons are well worthy of close consideration. bly, as well as private citizens, who, not having Almost any one of the railroads in Georgia given special study to this subject, have enter- could do fourfold the business it actually does, tained doubts upon it, and who will be really on its present track, without addition thereto. surprised at the mass of careful reasoning by No new road could afford, therefore, to set up which the right is sustained. With such minds, a rivalry, as it would ruin both roads. Again, while authority may command respectful con- the ruin would be unavoidable, for a railroad sideration, it is always best so to deal with their is immovable. A rival steamship can be transdoubts, that they shall rather be convinced sat-ferred to some other route, but a railroad is an isfactorily by argument, than silenced by mere absolute fixture. Even if the rival roads comauthority. In addressing this class of thinking bined they could but share a business of which men, it is to be remarked that there are prin- either is capable of doing the whole, and much ciples as old as the civil law and the common more. More commonly they fight one another, law, which, rightly applied, govern the whole and the work of both is done in the dark, with matter. These principles pertained to the sub- a scramble for business, and a system of rebates, ject matter, known in their days, as well as in by which unjust discrimination is introduced. Finally, as to monopoly; if competition ex-|ment and the carrier are all special. The owner, ists anywhere, it is limited to terminal points; there is no practical competition along the line. Between terminal points it ends either in combination, or in absorption; which is the most complete form of combination. too, is special, no longer the general public. The conditions of competition are, in a large measure, displaced. The private methods scarcely amount to competition at all. It is a stupendous and absolute revolution, still difficult to appreciate; but at length the facts are COMMON CARRIERS. 6. The right of regulating TURNPIKES, bridges and ferries has always been conceded and ex-forcing themselves on our attention. ercised. In general, and as covering the whole principle, when two parties deal upon wholly unequal terms the law protects the weak, as in the case of minors, femme coverts, and of the insane or imbecile. It protects the weak, making them the wards of the State, and providing Ordinaries, etc., to see tc their rights and guard them against imposition. Not to be tedious, upon any one of the foregoing grounds, the right of regulation can safely rest. Each has supplied the actual, practical ground of legislation for ages. Any student will find, perhaps somewhat to his surprise, that in the case of railroads the right rests not on any one of them singly, but upon them all combined. In a word, that the regulation of railroads by law is better fortified by principle, as well as by authority, than that of any other single subject of legal control. Corporations, as such, being a legal entity dependent on legislation for their very existence; franchises, special privileges, monopolies, turnpikes, bridges, ferries, common carriersthese are each and all of them subject to legal control. The railroad is ALL OF THESE IN ONE. It is a corporation, endowed with franchises and with special privileges; a monopoly, a common carrier, and it takes the place of ordinary roads for all considerable distances superseding them entirely. Nor is this, by any means, all. In each case the need of regulation of railroads, as compared with the old methods, is INTENSIFIED, both on public and economical grounds. The argument is highly cumulative, combining all the grounds in one, in a way seldom paralleled, and each ground far stronger than in the original analogous case. The old analogies have grown, some of them to be false and all of them feeble. On the public highways, before the days of railroads, between important places there were always several common carriers, between whom you could choose, or else use the highways yourself on equal terms with the public carrier. There was real competition and protection here, and yet for the public convenience the government regulated even the old common carrier, so subject to competition. RAILROADS COMPARED WITH OTHER MONOPO LIES. But the railroad is not thus free from competing carriers, or for the customer's own use. When first introduced, it was indeed regarded as simply a new kind of road-bed, which customers could hire by paying toll. But soon it was evident that the railroad company must of necessity itself run the road. Other carriers, or the customers themselves could not provide the new and expensive rolling stock, engines and cars. In like manner experienced enginemen were necessary. Almost any one could drive a wagon; not so an engine. In a word, the monopoly was greatly intensified by the needful specialization of machinery and workmen. Rapidly the railway became for large sections the only road available. The monopoly of this special way is now usually the monopoly of all available transportation. already seen, the rival road, if built, would ensure the ruin of both roads and be a waste of capital, since either could do all the business which offers, and much more, nor could either withdraw from the competition. As The roads so shut up are condemned (unless they combine and exact double rates to pay interest on a double capital) to a bloody duel. It is a war to the knife, as though both were shut up in a dark room, with doors locked and no escape for either; for a railroad, if once built in the wrong place, cannot be moved. It must fight it out on that line. To illustrate by the functions of a railroad as a common carrier: It has in great measure displaced the highway; it has displaced the equipment of the same; it has displaced the Common carriers having always been reguold common carrier. Thus the road, the equip-lated by law, this particular common carrier needs regulation tenfold more than any other | elephant can handle things with his trunk, but ever did, and for a hundredfold more business. The public highways of old were common to all. This particular sort of road-bed, so splendid in the improvement it presents, needs regulation more than ever did any other road, bridge or ferry. even the powerful horse (except under human control) cannot adapt himself to such work. Man alone transports. His natural means of locomotion are not superior to those of numerous animals, but by artificial means he cannot only change his own location, but can transport what he needs for comfort, or enjoyment, or exchange. EXCHANGE. The chief end to which his immensely enlarged powers conduce is that of exchange, which is the great instrument of civilization, being also the necessary foundation for the The railroad being thus a monopoly of a peculiar character, entirely too powerful for private competition, who shall fix the rates? Not the monopolist, the railroad, on the one hand; not the shipper, also a party interested, on the other hand; but THE LAW, by some method capable of properly and impartially fixing them, and from time to time adapting them to varying circumstances. The object on the one hand is to save the public from force, fraud, secrecy, extortion and unjust discrimination. Any fail-imals made paths for themselves. So, probably, ure to do this is a deprivation to a large extent of one of the most important privileges of the citizen. On the other hand, however, in the protection of the citizen, every just right of the monopolist is to be protected with like impartiality. We have dealt thus far chiefly on the law and the practice of governments. But the right rests on a deeper foundation, viz.: on the strong BASIS OF NATURAL LAW. At the hazard of some repetition, or even tediousness, we propose rapidly to trace to their foundations the origin of this right, beginning very far back, and showing what seem to us to be the bottom truths and principles on which it rests. It is imbedded in the whole constitution of nature. In the gradual rise in the scale of being, the most obvious distinction, even between plants and animals, is the animal's power of LOCOMOTION. The plant can get its sustenance, all that is necessary to its living, in one spot, without moving about from place to place, while the animal must necessarily roam for its food. To this rule man is no exception; on the contrary, in getting his support, he moves over larger surfaces than any other living creature. Nature furnishes both the need and means of locomotion. But man is distinguished also from the lower animals by another power-that of TRANSPORTATION. This power exists in the world of lower animals in but a small degree-a few of them can drag their prey, seizing it with their teeth; the DIVISION OF LABOR, ITS PRECURSOR. man begun by clearing a path for conveniently making his own way. Then he improved as his needs increased, by adapting his paths to each stage of progress. He first learned to make use of the lower animals, by riding them, by packing burdens upon them, then by teaching them to drag a brush or sled, and after no short while he reached, at length, the great improvement of a cart on wheels, thus immensely reducing friction. Every new device being fruitful of other improvement, afterwards came wagons, coaches, carriages upon springs, and other vehicles; and, to suit the improved vehicles, came also cleared roads, turnpikes, graded roads and the like; and, at the last, railroads, really but another device for removing friction. LAND AT FIRST FREE TO ALL. To his right of locomotion and transportation, in the savage state, man found no bounds nor limits, except such as were imposed by his enemies. The obstruction of this right of locomotion, indeed, is the loss of liberty itself; its loss is equivalent to prison or jail bonds. PUBLIC ROADS. When the right of property in land began to be exercised, it became necessary for government to provide adequately for this same universal and natural right of locomotion; therefore, public roads were laid out at public expense. And when the exigency did not require a public road, the right of needful private roads over a neighbor's land was made an exception to the general right of private property in land. Even in the government of the United States (a government of specified and limited powers), | counties to divide expenses of bridges, etc., so one of the powers distinctly conferred is that that the payment shall be by the parties most of laying off post roads; and by implication, interested. Again, government authorizes a a second power-that of making military corporation or an individual to build a bridge roads. Each State likewise either provides or to provide a turnpike, or a causeway: reguroads or allows the counties to do so, and makes provision also for bridges, ferries, etc. Every statute book contains numerous provisions relating to roads, bridges, ferries, turnpikes and the like. TRANSFER TO PRIVATE PERSONS. Instead of a road built and maintained at public expense, under some circumstances the right to build and maintain such a road is transferred to a county, a corporation or an individual. But the government can rightfully do this only on conditions which secure the public properly against loss of the right of use, upon payment of just and reasonable rates. The road must be open to all. A FERRY will illustrate this principle: The public convenience requires that some one should keep the ferry, with so that when the traveler reaches the obstruc- GRADUATED PAYMENTS. lating, however, the charges to be made. It being the province of government to provide roads, it is only upon condition of security to the public in the use of the needful roads that it can rightfully transfer this right; otherwise it abdicates an important part of its functions, and leaves the people unprotected. From these little beginnings, many of them still the best methods known among savage nations, arose our present grand system of common carriage on land and sea. improvement the With every IMPORTANCE OF TRANSPORTATION has had a corresponding increase. Its prodigious growth, even in our own day-greater by far than in any preceding age-may be illustrated by such facts as these: within the mem ory of a man, a merchant has carried a load of cotton by wagon from Middle Georgia to Philadelphia, and returned with a wagon load of goods-camping out by the way, occupying three months in the journey, and making his will as a proper preliminary to such an expedition. Now not a week is needed to go and return. This remark, read in the conference of the Commission over the present report, elicited other facts of the same sort. The father of one Commissioner rode on horseback from Savannah to New York and back. A second member of the Commission had a similar fact to relate: his father having driven a six-horse wagon from East Tennessee to Philadelphia, loaded with furs and skins, and returned with a load of goods, meeting with no detention by the way, except that he was arrested in Pennsylvania for driving his wagon on Sunday. So, too, in regard to the spread of information. Less than one hundred years ago, in Observe that in these cases the burdens and framing the Constitution of the United States, benefits are rightly distributed, more exactly the difficulty of getting the returns to the seat even than in the ordinary case of a road or of government was urged as a serious objection bridge kept up entirely by the public. They to frequent elections of President. In the Fedpay the expenses, who specifically get the use. eral Debates (5 Elliott, p. 339), we read: “Mr. Government, instead of itself maintaining Butler was against the frequency of elections. roads, as well as bridges, frequently transfers Georgia and South Carolina were too distant the right or the duty, generally requiring each to send electors often." Mr. Williamson recounty to maintain its own, and adjoining marked; "The expense will be considerable and ought not to be unnecessarily repeated. If the elections are too frequent, the best men will not undertake the service." Now the returns from California are read the next morning after the election, at the breakfast tables of the citizens of remote villages. The day after the assassination of the Czar of Russia, two pages of the New York Herald were filled with the particulars, and with the details of his history. Is it wonderful that changes so huge should need some corresponding changes in the means of regulation? WITH THE GROWTH OF FACILITIES AN ABSOLUTE REVOLUTION, perhaps the most momentous in the material progress of mankind. Yet for a long time its magnitude was not appreciated. Men looked with wonder on the imposing appliances of the magnificent engine and its long loaded train ; but the imagination was even more excited than the business faculty, and they failed to perceive that its utility surpassed even its astonishing display of power and speed. If the old methods of common carriage needed regulation by law, how incomparably more important is such regulation now, with the immensely increased volume of business, the growth of business has kept pace; train with the absolute impossibility of private comloads taking the place of wagon loads; and petition or self-help, and with the complexity this is a growth which will not cease while civ- of the management such that not even the ownilization extends in range and depth. How ers and shareholders can at all understand the much more important is the question of trans-business, except as reported to them by the portation to the white man than to the Indian, managers. How much more is the public at to the civilized man than to the barbarian? In the mercy of the railroad management, with some advanced countries it is ever held that our present huge commerce, than it was in the the railroad is no exception; but that the gov-power of the old common carrier with his small ernment is itself under obligations to build and and comparatively insignificant little barter? operate railroads as the best known means of Slowly mankind has been adjusting itself to the transportation. Another reason urged is, that problem-revolutionary in fact-estimated to they fall under that class of cases which present be very great, but not estimated at a tithe of its to the community collateral advantages greater real greatness. than the direct advantages to the stockholders. Accordingly, the whole history of legislation, among civilized people, shows such provisions for protecting the great rights of locomotion and transportation, on which fseedom and prosperity are founded. For many ages the turnpike or macademized roads were the best known, and legislation was adapted to them; while these still exist, their use is confined to short distances, or to thinly settled regions. quences. TRANSPORTATION IS KING. He who controls it controls everything else. He can set up one business man and put down another. He can set up one whole community and put down another. Government itself has not greater powers; indeed, governments are among the things controlled. We have seen the foundation of the right of regulation in the common law as well as the civil, and also in the deeper seated law of nature. Not less necessary in this right is its POLITICAL BEARINGS than in its legal and economical aspects. Only a half century ago the railroad was introduced, and with it a huge train of conseThe graded road-bed and parallel iron rails being a new device as a road; a new power also accompanied it, in an equal degree We begin to see the answer to the question: superior to the old. To these were adapted new "How is the railroad distinguished from the cars, holding many tons. And in place of the plantation, or the store, or from its yet closer old wagon-driver a much more highly trained analogues-the factory, the mine, or the rolling expert controlled the new power on the new mill, and the like properties?" Because it is road, with these immensely increased loads, a monopoly, and cannot well be otherwise; bewhile a separate conductor discharged the duty cause its powers are immense, and of a public of the common carrier as to receiving and de-character, so in fact and so held by law and livering, and the care of the goods. The change legal decisions. It is important and instructive to study these distinctions, which are real and was |