Shall the State Regulate the Railroads
or the Railroads Control the State
SPEECH
OF
Hon. J. D. KILPATRICK
IN THE
Senate of Georgia, on December i^, 1896.
AND
SENATE BILL No. 26,
To Enlarge the Powers of the Railroad Commission of Georgia.
ATLANTA, GA.:
The Franklin Printing and Publishing Co.
(Geo. W. Harrison, State Printer, Manager.)
1897.
U.
SPEECH
OF
HON. J. D. KILPATRICK.
IN THE
SENATE OF GEORGIA, DECEMBER 15, 1896.
The Senate having under consideration Senate Bill No.
26 to Enlarge the Powers of the Railroad Commission of
Georgia :
Mr. KilPatrick said:
Mr. President, I am not in favor of the bill as discussed
by the Senator who has just taken his seat. I do not
recognize that measure at all. I did not know that such
a bill as the one that he has been discussing was before
this body. As the Chairman of the Railroad Committee, I
did not know that we had considered such a bill as that—
the one he has discussed.
I am, Mr. President, and fellow members, in favor of the
bill as introduced and reported by the Railroad Committee.
Now, I do not mean to insinuate or say that the honorable
Senator has wilfully mistated the terms of this bill. I
ahall not transcend the rules of the Senate nor the custom
observed in all parliamentary bodies; nor shall I even do
him the unkindness to say what he has said concerning
Senators who favor this bill ; for in terms he did say, and I
took his words down, that this bill was socialism and the
taking of private property for nothing. In other words, in
plain English, it was robbery.
I state, I will not even insinuate that the Senator in dis-
2
cussing the bill, has wilfully misconstrued its terms. If
the bill really was what he would have you think it is, then,,
in that event, I myself would be against it. He would have
the Senators to believe, judging from his argument, that
the measure under consideration, is something new and
untried. His argument is based upon the theory that we
are about to inaugurate some drastic legislation in Georgia.
PKESENT LAW OF THE STATE.
All of the Senators have Codes, I presume, upon their-
desks. I respectfully request them to turn to Section 719
(q) of the Code of 1882, and read that section and then read
this bill now under discussion.
This Section, 719 (q) of the Code, which was a codification,
of the law of 1874, was amended by the act of 1883, and is-
almost identical in.terms with the bill now under consid¬
eration. We simply seek, Mr. President, to add a new
penalty for the violation of that section of the Code, and
to place the power of enforcing this section, under the new
and additional penalty, in the hands of the Railroad Com¬
mission. That section of the Code, as amended by the
act of 1888, gives to the owner or consignee, whoever may
sue first, a right of action, the penalty being not less thau
10 per cent, and not more than 25 per cent, on the value of
the goods shipped.
CHANGES PROPOSED BY THIS BILL.
This bill, if it becomes a law, will, in addition to the-
present penalty, with the right to sue therefor left in the-
hands of the owner or consignee of goods, put the penalty
of 15,000.00 upon the railroads violating the law, and the
enforcement of this provision will be in the hands of the
Railroad Commission. In other words, under this bill, the
' Railroad Commission will have the right to regulate the in-
' terchange of freight and to guard the interest of the people
as a whole, while we leave the right in the hands of the
private party aggrieved to sue for damages besides; be¬
cause the bill in terms says that this remedy shall be cumu-
3
lative and not exclusive of the statutes already upon the-
hooks covering this question. Therefore we are not trying
any new experiment ; therefore it is not the initiation of any
drastic measure that we now seek.
But let us go further, Mr. President, and consider this
matter without reference to the old statute. Even though
it has been a law for twenty-two years, and even though we
do not now seek to change a law of twenty-two years stand¬
ing except as to the penalty, let us be fair and consider this;
measure upon its merits just as if that law did not now
stand upon the statute books.
Is the law of 1874, which we seek merely to amend, a
wise and just law, and is it socialism or anarchy or robbery
to enforce it?
Senator Battle: "I would like to inquire if the Senator
would permit me to ask him one question?"
Senator Kilpatrick: Certainly.
Senator Battle: "Does the gentleman say, and does he
mean to be understood that this bill now before the Senate
seeks merely to amend the section of the Code he has just
referred to?"
Senator Kilpatrick : I said the effect would be that of an
amendment to that section by changing the penalty, or, if
you please, making an additional penalty and providing an
additional means for enforcing this statute.
IS IT SOCIALISM?
The Senator who has just taken his seat said that to take
firivate property without compensation, to take private
property even with compensation, contrary to the owner's
will, was unjust and that he, for one, would be forever
against it. Let us take this thought, and we thank him
for having suggested it, and carry it to its logical con¬
clusion. If that thought had been carried to its logical
conclusion, no railroad would exist in Georgia to-day; not
one; because forsooth, were it not for the fact that the
private property of the landowners along its route was
condemned under the delegated right of eminent domain, no
4
right-of-way could have been procured in the State of
Georgia for a single railroad therein. In other words, Mr.
President, I take this position, that in reasoning about rail¬
roads, the same rules of logic do not hold good as do hold
good in speaking about the property, the personal and
private property of individuals. They do hold good, both
morally and otherwise, with certain modifications, but as
an abstract and unconditional proposition this cannot, in
the nature of things, be true.
ßAILEOADS EXERCISE PUBLIC FUNCTIONS.
Railroads are really private corporations charged with
the performance of certain public functions. That is one
definition. Another definition, and a better one, in my
opinion, is that they are public corporations charged with
the payment to private parties, who have placed their funds
therein, of reasonable dividends upon their investments.
And the railroads themselves, Mr. President, recognize the
justness of this latter definition when in the course of con¬
struction; when they survey their right-of-way, and the ob¬
jection is raised that they are about to confiscate private
property; that they are about to exercise this right of
eminent domain ; this right under the constitution vested in
the State alone, the reply is, we know we take your private
property contrary to your will and over your objection, but
we do it for the public good ; private rights must be subor-,
dinated to the good of the public as a whole. We are not
building private corporations for the purpose of acquiring
wealth solely; we are not building the railroads simply for
the purpose of putting dollars in our own pockets; we are
building it for the good of the community and of the cit¬
izens that live along the line as well.
That is the argument and the only justification they
have, Mr. President, when they are building their lines,
but when they are built, when they have confiscated our
private property, when they have "robbed us," to use the
expression of the senator who has just taken his seat, they
then cease to be longer public corporations, but become
5
private corporations, exercising public functions only as
they see fit, and become money getters solely, and all laws
seeking to control them, the senator would have us believe,
are unconstitutional and void.
Are they public corporations? Are they charged with
public functions? As a mater of fact they are, and it is
proper to regulate and control them. The proposition
cannot be denied. The Constitution of this State recognizes
the right to control them. The Constitution of this State,
Article 4, Section 2, Paragraph 1, says: "That the power
and authority of regulating railroad freights, passenger
tariffs, and so on, and prevent unjust discriminations, shall
be vested in the General Assembly. " The paragraph imme¬
diately following this expressly provides that the power of
the State shall never be so construed as to permit corpora¬
tions to conduct their business in such manner as to infringe
the equal rights of individuals, or the general well-being of
the State
In'^pursuance of that section of the Constitution, the Rail¬
road Commission of Georgia has been organized. The act
creating that commission, and the acts amendatory thereof,
give them certain powers, and they were thought to give
those found in Rule 32 of the Railroad Commission. You
will find that rule, senators, on page 51 of the Railroad Com¬
mission's report. Rule 32 is this bill pure and simple. In
other words, the Railroad Commission has been enforcing
Rule 32 for years under the supposition that they had the
right to adopt such a rule. Now, I regret very much that
by the argument of senators in opposition, this question is
narrowed down to the technical consideration of the powers
of the Commission as interpreted in the decisions of the
Supreme Court, or as construed by the Commission.
If we were before the proper tribunal, and in the proper
forum, we would have no desire to avoid the issue, but the
members of the senate are not all lawyers, and they who
are not lawyers may be caught by the ingenious argument
to which we have listened.
6
NECESSITY FOR THE BILL.
Now, why do we need this bill? In 1893 in a case be¬
tween Mr. Comer as Receiver of the Central Railroad of
Georgia, represented by his attorneys, Lawton & Cunning¬
ham, and brought by some gentlemen represented by Mr.
Boykin Wright, in a fight before the Railroad" Commission
of Georgia, the right to adopt and enforce Rule 32 was
questioned. Why, gentlemen. Rule 32 is this bill. Now
the Railroad Commission, as matter of law, can adopt no
rule, can exercise no power, can perform no functions that
are not given the commission under the act creating it, and
the amendments thereto. A majority of the present Rail¬
road Commission, as constituted, then decided, and I have
their opinion now before me, and the brief of counsel in that
case, that the act creating the commission was not broad
enough to allow them to adopt this rule. The justness of
the rule was not fought by Mr. Comer, but it was fought on
the sole ground that the Railroad Commission was the
creature of the law, and must exercise its law functions and
powers strictly under the law creating it. A majority of
the commission said, "We have transcended our powers;
we have adopted as a rule of the commission a rule that
we had no right to adopt, laboring under the misapprehen¬
sion that the act of 1874 was intended to be applied to the
act creating the commission and embodied in it. Now, as
matter of fact, the act of 1874, embodied in Code, section
719(q), was passed before the Commission Act, and, there¬
fore, as matter of law, it conferred on the Railroad Com¬
mission of Georgia no powers. "
WHAT IS THE DECISION OF THE COMMISSION?
All that the commission has decided is, that the Railroad
Commission had not those rights. That is, it decided that
the commission has not that power now. But, Mr. Presi¬
dent, because the commission has said that it has no rights
as the law now stands, would the gentlemen even insinuate
upon this floor, that we have not the right to pass this law
that would give it these rights? In other words, suppose
7
•that the Supreme Court to-day should decide that, by some
inadvertency, the law on the subject of murder had been
repealed; suppose that it was decided to-day that there
was no law in Georgia on the subject of homicide. The
argument of the Honorable Senator carried to its logical
"Conclusion would be this, that while we have no law on the
subject now, it would follow as a necessary sequence, that
we had no right to enact legislation on this subject. But
the Senator from the 2áth (Mr Battle) has read a decision
■from the Supreme Court (86 Ga., 251) construing the act of
1874.
The decision that he has just read does say, that you have
no right to collect this penalty under the act of 1874. The
Supreme Court did not undertake to say, and did not have
the audacity to say, that we could not pass the law on that
subject, giving the right to enforce that act to the Railroad
•Commission, under proper penalies. So much for that
phase of it.
DECISIONS COMPARED.
And now I propre to appeal from Philip drunk to
Philip sober. I propose to take the decisions of the Su¬
preme Court, itself, and turn them against the Supreme
Court. I say that decision did not mean, and was not in¬
tended to mean, such as is alleged by the gentleman who
■argued that side of this question ; and to sustain my position
I appeal fromPhilip drunk to Philip sober, and I respectfully
■call the attention of this honorable body to the decision
found in 74 Georgia Reports, beginning on page 684. That
decision was rendered by Chief Justice Jackson. It was a
-decision construing the act of 1874, the act that we now, in
fact, seek to amend by changing the penalty and manner of
enforcing the same.
In that decision he used this expression, and I will read
the first head-note:
"Where the Central Railroad Company, whose road runs
"from Savannah to Macon, and thence by itself and its
""branches, or roads controlled by it, to other points, passed
8
"a rule that, on and after date, no shipment of salt or other-
" merchandise from Brunswick, in competition with Savan-
"nah, will be received for local stations on this line, or
"passing over the Southwestern Railroad Division for
"points beyond, unless charges are prepaid and shipments
"delivered at warehouse by drays as local business, when
"regular local tariff rates from Macon will be assessed on
"same,' such rule was contrary to the act of 1874 to pro-
"hibit monopolies and for damages resulting from its
"enforcement as to salt shipped from Brunswick over the
"East Tennessee, Virginia & Georgia Railroad to Macon,
"and to be carried beyond that point by the Central Rail-
"road, a right of action accrued."
In the body of this decision. Chief Justice Jackson, at that
time presiding, laid down certain propositions; the proposi¬
tions which I have been seeking, in a feeble way, to impress-
upon this body, in order to impress the importance of the
adoption of this bill, to-wit: That railroads were created
for the benefit of the public, that they were charged with
the performance of certain public functions; that the Con¬
stitution of the State required that they be controlled; that
in pursuance of the Constitution of the State the Legisla¬
ture had passed centain acts, among which the act of 1874!
was one, to control these railroads; that it was honest,,
legitimate and just that these laws be enforced; that if they
were not enforced, competition would be crushed out, and
that if crushed out, the people would suffer; that in the
event railroads were allowed to combine, they could destroy
weaker railroads, and so on, and so on. That decision I
quote from brieñy:
DECISION IN 74 GEORGIA HAS NEVER BEEN RE¬
VERSED.
I want to call the attention of Senators to this fact,,
especially members of the law profession in the Senate,,
that this decision in the 74th Georgia, afiirmed in 77th
Georgia, has never been reversed, and to-day, right now, 1»
as much the law of Georgia as the decision the honoredi
g
Senator has recently read to this body. It is the law now.
And one peculiar fact to which I want to call his attention
is this: that the Chief Justice whom he has eulogized so
highly, and from whose merits I would not detract, hap¬
pened to be the presiding Judge in the City of Macon who
tried this case reported in the 74th Georgia, and whose
judgment was brought to the Supreme Court for review,
and when brought there he himself was reversed by the
Supreme Court in terms; and I want to call the attention of
Senators to this other significant fact, that after he was
transplanted to the Supreme Court, after he was elevated
to the Supreme bench, the question wherein he had been
reversed was brought here to the Supreme Court, and
after he was made a member of the highest tribunal in the
State, he adhered to his former Circuit Court decision
which had been reversed, but he did not and dared not
review this decision of Judge Jackson and attempt to re¬
verse it in terms; he did not refer to that decision and the
Court did not refer to that decision and attempt to reverse
it in terms, and the lawyer members of this body know that
until a decision is reversed in terms, it is the law of this
State. That decision never having been reversed in terms
is still the law of this State. So you see the difference in
Philip drunk and Philip sober.
At this point the Senator yielded to a motion to adjourn
until 7:30 P. M. this date, which motion prevailed.
The Senate convened at 7:30 P. M., December 15th, 1896,
pursuant to adjournment.
Senator Kilpatrick, continuing, said :
Mr. President, I will attempt to take up the thread of my
discourse where I was interrupted when the Senate ad¬
journed.
THE LAW OP 1874 UPHELD.
I had reached that point, Mr. President, where I had re¬
ferred to certain decisions of our own State courts touching
10
1 hl! HUI 11(1- ;it iss>u'. The decision referred to was a well-
considered opinion of a very learned Court. It distinctly
and in terms upheld the constitntionality and justness of
the law of 1874. Now the law of 1874, to which I have re¬
ferred, has been embodied in the Code, Section 719 (q), and
sections immediately following. That section of the Code
has been amended by an act passed in 1883. The amend¬
ment to the law does not raise any new question as to its
'constitutionality; it merely broadens the terms of the law.
It does not change the principle. The case to which I have
referred decided this law to be a valid and binding law
and was considered a second time, a report of which will be
found in the 77th Georgia Keports, beginning on page 804,
and which I desire to have read by the Secretary for the
information of the Senate. That decision, fellow Senators,
in the 74th Georgia was considered in this later opinion in
77 Georgia and the doctrines therein affirmed.
NO NEW rRINCTPLES INVOLVED IN THIS BILL.
The principles that we are seeking to engraft on and
enforce by this bill are by no means new. They are not
new in this State, the statutes having been upon onr own
statute books of the State for at least twenty-two years,
and as I have said before and repeat, that the objectionable
parts of this bill, the parts against which arguments have
been made, have been affirmed by the Courts. It is not a
new doctrine in other states. Upon investigation, I find
that several other states have similar provisions. And I
find further that the courts of these respective states have
sustained them. The law, it strikes me, is not only one
that is constitutional and just, but that it could not be af¬
fected by the decision read by the Senator in opposition,
and it further strikes me that it is founded upon reason,
justness and common sense.
As I said before, it would not do to apply the same rea¬
soning to these coi'i)orations that are apjilied to the use
of a man's horse or buggy because, forsooth, they do not
sland u])on the same footing. I grant that all personal
11
property, uuder the law and the right of use of such prop¬
erty, is vested solely in the owner, and that he can use
it as he sees fit, and with only one proviso—that by its use
he injures no other. But when we go to deal with public
corporations like railroads, this well founded theory, this
ancient theory, is not strictly applicable, because they, Mr.
I'resident and Senators, are created for the use and benefit
of the public.
I grant the bill, as it stands, requires one road to furnish
rolling-stock to another road that connects with it. I
grant that is true and am here to defend that proposition,
but while it is true, and it should be true, the real bone of
contention with reference to this bill is not covered by that
objection. The real trouble does not arise from objections
of the initial road to take freight and furnish cars for
another, but it arises from this state of facts: The inter¬
mediate road, unless given the long haul, refuses to receive
another road's cars and haul them over its road. But be¬
fore I get to that, I desire to comment some on the decision
read in opposition.
WHAT DOES THAT OPINION DECIDE?
Remember this, that it is opposed by two other decisions
of equal binding force and authority. It decided, and care¬
ful reading of that decision will show, that I interpret it
correctly; that it would be wrong to compel one road to
furnish cars for another road and transport them without
pay. The objection ur^ed by the honorable Senator, to this
bill, is that we seek to compel them to furnish these cars
M ithout pay. But the true facts in the case, Mr. President,
are these: That the Railroad Commission, long years ago,
some eight or ten years at least, really removed the objec¬
tion in that decision by adopting a rule providing for
mileage of cars used, and that rule of the Commission is a
part of the railroad law of the State to-day. They had the
right, under the acts creating the Commission, to adopt it
and make it part of the laws of this State.
12
REAL OBJECTION TO THE BILL.
That rule provides for compensation for those cars when
shipped in the manner indicated. But I say this is not the
real objection to the bill on the part of those who take the
opposite view. The real objection is, that the road refuses
to haul the rolling-stock of the other, and I have right now
in my pocket a statement of a shipment of sale, shipped
only recently from Port Royal over the Port Royal & Au¬
gusta Railway to Augusta, and from Augusta to Macon over
the Geoi'gia Road, in Louisville & Nashville car No. 10617,
and which car rests now in Macon at this very moment
while I am speaking, which the Central Railroad neglects to
forward to its destination. We do not ask in that instance
that the Central Railroad furnish us cars; that is not the
proposition, but we ask it merely to forward cars furnished
by the Louisville & Nashville Railroad through the Augusta
& Port Royal Railroad, and which it refuses to do, and that,
Mr. President, is the trouble under which we now labor. I
can better illustrate this point by citing instances in point
along my own road, because I am more familiar with those.
At Monticello we have the Macon & Northern Road, at
Machen, Ga., it makes connection with the M. G. & A! it
gives us connection by Milledgeville to Augusta; by Mill-
edgeville to Savannah; by Covington to Atlanta, and to the
various marts of trade throughout this country., It also in;
tersects the Georgia Road at Madison and gives us connec¬
tion to Port Royal, Augusta, Charleston, and so on. Going
further north, it meets the Seaboard Air Line at Athens, Ga.
Going south, it reaches Macon and there connects with the
various roads at that point. Under the present régime no
bill of lading will be issued for cotton to any port save the
port of Savannah. If this bill becomes a law we can say to
the railroad authorities that under a penalty of five thou¬
sand dollars you shall not discriminate against the M. G. &
A, and Georgia, and Seaboard Air Line in favor of the Cen¬
tral system through the port of Savannah, but you shall
give us bills of lading to any port that we may desire to ship
pur cotton to,
13
Another instance, Mr. President, that came within my
own personal knowledge is this: last spring a firm in my
town had a car of freight shipped to them from the east
over the Seaboard Air Line Eoad, and when the car came
down to Athens, the Macon & Northern Road absolutely
,and unconditionally refused to, receive those goods and
transport them to their destination. The ,Macon & North¬
ern Road and the Seaboard Air Line have physical connec¬
tions at that point, and in fact, have had two or three
wrecks there, if I am not misinformed, by the train of one
road running into the other, and yet their depots are some¬
thing like a mile apart, and before those goods could be
transported to their final destination, the consignee had to
take drays and transfer the freight from one depot to the
other.
Last spring a consignment of guano was made from Port
Royal to my town, coming by way of Augusta to Macon,
over the Georgia Road. The Central refused to forward
this car to its destination because it was not given the haul
from Augusta to Macon.
Is that just? Is it right to so treat patrons along the line
of the road In this manner? Is it communistic and anar¬
chistic for shippers to call for protection in the shipment of
goods when so grievous wrongs have been done patrons of
the road?
THREE PROPOSITIONS.
The question has been reduced to one of three proposi¬
tions; it is a three-horned dilemma. I grant this bill may
sometimes work hardship. No universal rule of law can
be enforced without, at times, working hardship, but the
three propositions are these: shall we adopt the new notions
of our Populist friends, and have government ownership of
railroads; or shall we entirely surrender and let the rail¬
roads own us; or shall we adhere to the good old doctrine
laid down by our fathers, of controlling the railroads under
just and proper and wise regulations?
I desire further to comment somewhat upon that decision
read in opposition to this bill. That doctrine of the com-
14
mon law rule of carriers of passenfjers. and the common law
rule as to the rij^hts of carriers of frei<ïhts, to their destina¬
tion, or only to the end of their line, was discussed in that
decision.
In one sense, the raih'oads are an exception to the com-
nion law in the very nature of things. The common law
rule will not a])ply, because in the days of the common law,
the invention of Stei)henson was still unknown, and no man
dreamt of such institutions.The common law was older
Than the railroads. There has been no common law since.
There is no common law originating since the days of the
statute law. The reasoning on the common law is inapx)li-
cable in this; a carrier under the common law uses his own
property; he paid for his own stage coaches; he bought his
own hoi'ses, and furnished his own drivers, and went over
the roads dedicated to the use of the jTublic. They did not
go into private lu'operty of the men along their lines and
condemn it for ])ublic uses." We have outgrown the com¬
mon la«' doctrine on this of necessity. You had just as
well undertake to make api)licable the theory and invention
of electrical machines to the ideas of old, at the time of the
common la«', as to try to turn back the hands of progress
and go back to the common law rule as to railroads. If «'O
go back to the common la«' rule of necessity, we must go
back to the common la«' vehicles of transportation. The
bill does not say, and I state this emi)hatically, that you
shall issue through bills of lading against your «'ill.
MAY OK MAY NOT I8SUE BILES OF LADING.
M'e recognize this princi])le as being sound; that the rail¬
roads may not, contrary to their will, be compelled to make
a contract to transi)ort goods beyond their destination;
beyond their terminus, I mean; that if their destination is
beyond Iheir ferminus, it would be imi)ro])er for them to b(i
compelled to make a contract contrary to their wishes. AVe
recognize (hat as being sound law, modified only by this:
Unit the Consfifution to «Inch I have I'cferred, and to
which I again refer, provides that the General Assembly
15
shall adopt siu-li adoqnato, wise and cousei-vative rules as
will prevent one railroad from discriminating as against
another or against one patron in favor of another.
WHAT THE BILL DOES SAY.
We say to the roads in this bill, and we mean just what
we say, that you may issue or refuse to issue through bills
of lading if you wish; you may issue your own bills of lading
only to 30ur own terminus if you see fit; but we do say, if
you issue through bills of lading to one road, if you do fur¬
nish the customary facilities of traffic to one road, you must
furnish like facilities to another. We claim the right in
law to do this under the Constitution, because the Constitu
tion says that competition must be preserved.
Let me illustrate for a moment how competition may be
killed if this bill does not become a law. It is not a mere
matter of illustration, but I state it as a fact that is in ex¬
istence rigbt now, that the Southern Railway system which
either owns or controls about all the railroads except the
Seaboard Air Line, is crippling and killing competition by
issuing bills of lading over certain connections and refusing
to issue them over the Seaboard Air Line. I say this is
in contravention of the Constitution. B3' this means they
force parties to route goods, not as the consignee or con¬
signor would have it, but as railroads would dictate; by
making you dray at intermediate points when there is no
necessity for draying, and where there is actual physical
connections, and doing other things of like character they
thus discriminate against one road in favor of others.
RIGHTS UNDER THE CONSTITUTION.
We sa^- that under the Constitution we have the right
to prevent this discrimination. We have the right to say
v'ou must treat all alike. If jmu see fit to exercise your
lawful right to issue bills of lading only to your terminus
3 ou can do so, but you cannot combine and confederate
with another for the purpose of preventing competition and
ill the end destroying 3'our competitor. Is this an unrea-
le
sonable rule? I gather from the acts of Congress and the
rules of the Interstate Commerce Commission that it is
not; for Congress has already done the same thing, and I
am told that the party who violates this law is liable for
indictment before the Federal Courts as for a misdemeanor.
NO INTERFERENCE WITH INTERSTATE COM-
MEpCE.
But there is something else in this bill. It his been ob¬
jected to on the ground that it will interfere with inter¬
state commerce, and for that reason will be unconstitu¬
tional. I have before me an exhaustive brief on this par¬
ticular question. The authorities will be stated if desired,
and if need be, produced. The courts have repeatedly held
that the States cannot interfere with interstate commerce
by exacting penalties, by requiring license, by doing any¬
thing that will hinder, obstruct and delay or prevent the
rapid interchange of traffic between the States.
Now for every rule there is a reason. Why was this ever
I>ut into the Constitution? It was intended by the framers
of this government that the relatioqs of these several
States forming this union should not be the relations of
foreign governments, but should be the relations of mem¬
bers of one and the same family. It was intended that
there should be absolute freedom of commerce as between
the States; it was intended that no tariffs or excise duties
should be collected on account of passing between States in
the line of commerce; it was intended that the transporta¬
tion of products which enter into interstate commerce
should be unfettered and unbound, in order that they
should reach their destination with the utmost dispatch
and ease. And in carrying out that paragraph of the Con¬
stitution that commerce should not be obstructed or de¬
layed, legislation has been adopted and the Supreme Court
has passed upon that legislation beginning in the days of
Chief Justice Marshall, and coming on down even to the
present; because the Supreme Court of the United States
has recently rendered an opinion covering this question.
17
There is a well established and defined line of opinions
from the Supreme Court found in the 75, 79, 82,110,116 and
124th United States Reports, and on down later, upholding
this doctrine, that each State in this Union has the right to
adopt such police rules and regulations governing its own
internal affairs, although incidentally they may affect inter¬
state commerce, as may be necessary for its protection.
They have the right to put such restrictions upon inter¬
state commerce as fall within their police power, and
supporting that I refer to the famous Mississippi case
where the question of furnishing separate cars for white
and colored was adjudicated in favor of the statute. They
have gone further and said that any statute which does not
hinder, does not delay, does not obstruct, but which was in¬
tended and which in fact facilitates and promotes and
urges forward interstate commerce, although in one sense
a regulation of the same, is not obnoxious to the Constitu¬
tion. Therefore the test of this bill is this: "Would the
bill, if it becomes a law, hinder, obstruct or delay inter¬
state commerce; or would it, on the other hand, aid and
facilitate and promote the rapid interchange of traffic? If
the former, of course the bill would be unconstitutional.
If the latter, then it is strictly within the power of the
State Legislature to pass it.
Now, as a reasonable man, and I have tried to state the
law fairly and fully. Senators, can you say if this bill be¬
came a law it would obstruct commerce? As reasonable
men, can you say it would delay; as reasonable men, can
you say it would interfere with interstate commerce and
prevent the rapid and easy interchange of traffic? On the
contrary, is it true that if this bill became a law it would
facilitate and aid interstate commerce? If so, I appeal to
the highest authority in the land, the United States Su¬
preme Court, that this bill is constitutional and proper.
THROUGH BILLS OF LADINQ.
But further in connection with the idea that we would
demand through bills of lading; that seems to be the objec-
18
tion to the bill mainly, when in fact no such provision is
^ made in the bill. Yet it is the custom, fellow senators,
■of which all of you are aware, that even now all the roads
do give through bills of lading except in occasional in¬
stances. Now, the objection is made, that if they give
through bills of lading they are responsible for all the
damages occurring throughout the entire line of transpor¬
tation. Fellow Senators, that is not the law; it never was
the law, and no authority can be found upholding that doc¬
trine. But suppose it was the law; couldn't it be changed
under this bill? We give the Railroad Commission, under
this bill, the right to adopt such just and proper and wise
regulations as seem to them fit. Could not the Railroad
Commission in framing its rules say that the liability of
the initial road would be terminated when it delivered the
freight to the connecting road? This is already the law;
but out of the abundance of caution amend the bill if it is
the real objection. I know of at least two roads in this
^tate to-day that give through bills of lading containing
the provision that they are not liable for the freight be¬
yond their own lines. They state, "Received of A. B.,
Jackson, Ga., 10 bales cotton to be shipped to Savannah,"
we will say, routing it over the Southern Railway to Ma¬
con, and from Macon over the Central to Savannah, with
this clause to it: "The liability of the Southern Railway
terminates at its depot in Macon and so soon as this freight
may be tendered to the connecting line for transportation."
Now, that is the custom among roads. There would be
no danger from receivers; there would be no danger from
insolvent roads; there would be no danger from damages.
But if that is the real objection and not a captious and
capricious one, amend the bill.
But, Mr. President, that is not the real objection to the
bill. The real objection to the bill is founded upon the idea
that railroads are incorporated and maintained for the
getting of private gain alone. It is founded on the idea
that they are the masters of their own franchises; it is
founded on the idea that they are supreme in their own af¬
fairs. The fact that they are but the creatures of the State,
19
born of tlie law of the Legislature, 'the fact that they do
lire but by the sufferance of the State; that they got their
rights in their charters from the Legislature formerly, and
now from the Secretary of State; that they are created for
the good of the people, and that they are not only charged
with the making of interest on funds invested therein, but
owe an additional duty to the people is entirely lost sight of.
I am here to maintain that these public corporations owe
something more to the people than the mere getting of pri¬
vate gain ; I am here to maintain that while they should be
treated justly, that while they should not be discriminated
against, they should not be left with the power to injure
the people; that they should be the servants of the people;
that they should be subordinate to the people; that the
creature should not be greater than the creator; that they
must subserve the ends for which they were incorporated,
and not that they may do that which they see fit according
to their own good will and pleasure.
ADVOCATES OF THE BILL NOT COMMUNISTS.
We who advocate this bill are not communists; we are
not anarchists; we do not hate the creator of wealth nor
men who possess it; we are not here to rise up and commit-
robbery upon any man or corporation; we are here to as¬
sert our rights in order that we be not robbed in the man¬
ner in which we have been robbed in years past and in
which we are now being robbed.
THE PASSAGE OF THE BILL NECESSAEY TO EN¬
FORCE THE CONSTITUTION AND PRE¬
SERVE COMPETITION.
If we are willing to enforce the provisions of the Con¬
stitution; if we are willing to protect the people from inor¬
dinate greed; if we want to save to the State competing
lines so that competition will not be entirely killed, then it
will be our duty to pass this measure; but if, on the other
hand, we are willing to tamely surrender to the demands
of the corporations, then let us surrender gracefully in
20
favor of the railroads and repeal that section of the Con¬
stitution which says that competition shall be preserved.
The Constitution is being violated hourly by these corpora¬
tions; let jis repeal that section of the Constitution or en¬
force it.
And with this, Mr. President, I am done, but I do hope
that before my time has been entirely consumed, the Secre¬
tary will read, for the information of the Senate, a decision
of the Supreme Court to which I recently alluded.
The Secretary of the Senate then read the decision re¬
ferred to, in 77 Georgia Reports, beginning on page 804.
21
SENATE BILL NO. 26.
introduced by senator hudson, of the thirteenth
district, on november 20, 1896.
A Bill to be entitled An Act to enlarge the powers of
the Railroad Commission of Georgia so as to require
railroads to receive, receipt for and deliver cars and
freights, and to prevent discriminations, and for other
purposes.
Section I. Be it enacted by the GenerabAssembly of
the State of Georgia, and it is hereby enacted by the
authority of the same. That from and after the passage
of this Act the Railroad Commission of the State of
Georgia shall have power and authority under penalties
as prescribed in section 719(1) of the Code of Georgia re¬
vised in 1882, to require the railroads in this State, with¬
out delay, to switch off and deliver to any connecting rail-
roadof the same gauge all the cars consigned topointson or
beyond the line of such connecting road, and to require
said railroads at the terminus or any intermediate connect¬
ing point, without obstruction or delay, to receive from
connecting roads of the same gauge, when offered, all
cars or shipments of freights consigned to points on or
beyond the lines of such connecting roads, to which the
same are offered, and to transport the same to their desti¬
nation with diligence. And said Commission shall have
power to prevent the railroads in this State from un¬
justly discriminating in their rates or tariffs of freights in
favor of any line or route connected with it, as against
any other line or route, and to require said railroads to
route all cars and shipments without discrimination
against any railroad or shipper, and to require said rail¬
roads to afford the usual and like customary facilities for
the interchange of freight to patrons of each and all lines
alike. And said Commission shall have power and au-
22
thority to require the railroads of this State to receive
and receipt for shipments without delay, and to require
them to issue duplicate freight receipts to shippers, show¬
ing the classes of freight shipped and the rates charged,
by the joad issuing such receipt, and showing so far
as practicable the rates charged by the other roads over
which said shipment will pass, and to require the rail¬
roads to deliver said shipments upon the payment of the
lawful rate upon the same, upon presentation of said re¬
ceipt.
Sec. II. And be it further enacted by the authority
aforesaid. That said Railroad Commission shall have
power and authority to require the railroads in this State,
without delay, to deliver to any connecting railroad,
whether of the same or of different gauge, all freight in
quantities less than car-load lots, or all freight not in cars,
consigned to points on or beyond the line of such con¬
necting road, and to require said railroads at the termi¬
nus or any intermediate connecting point, without ob¬
struction or delay, to receive from such connecting roads,
when offered, all freight of the description in this section
treated of and to transport the same to its destination
with diligence. That the penalty for the violation of the
rules adopted in conformity with this section shall be as
is prescribed in section one of this Act.
Sec. III. Be it further enacted by the authority afore¬
said, That the provisions of this Act shall be cumulative
and not exclusive of the provisions of the Acts now of
force on this subject, unless said last mentioned acts are,
in terms, in conffict herewith.
Sec. IV. Be it further enacted. That all laws and parts
of laws in conflict with the provisions of this Act be, and
the same are, hereby repealed.