BRIEF 
 
 A 
 
 OF 
 
 E, P, ALEXANDER 
 
 ON CHARTER OF 
 
 CINCINNATI & GA. R. R. CO 
 
 BEFORE 
 
 Senate Committee on Railroads, 
 
 GEORGIA LEGISLATURE, AUGUST 17, 1881. 
 
 1881 . 
 
 CONSTITUTION PUBLISHING COMPANY. 
 
 ATLANTA, GA. 
 
A 
 
 ,t>’: * 
 
Gentlemen of the Committee: 
 
 I beg leave to ask at your bands certain modifica¬ 
 tions of the charter of the Cincinnati and Georgia Hail- 
 road Company, recently passed by the House of Rep¬ 
 resentatives, and now in the hands of your body for 
 consideration. 
 
 Before proceeding, however, to point out the modi¬ 
 fications which I feel myself bound to ask, in justice 
 to the Georgia Railroad, I wish to state as positively 
 and emphatically as possible that I am making no ob¬ 
 jection whatever to the granting of a charter to that 
 company, and as liberal a charter as any in existence 
 in this State. 
 
 I have seen through the public press, that objection 
 has been made by some to granting it any charter at 
 all; and it has been stated that the Louisvile and 
 Nashville interests were instigating that objection. 
 This I beg leave to contradict and deny most positively. 
 For myself, I will say that I am opposed to the State 
 protection of any interest whatever. I believe in free- 
 trade and free competition on all sides. 
 
 My creed is, that no railroad, no city, no town, no 
 trade, no manufacture, and no individual business has 
 any right, divine or human, to be protected ; or to pro¬ 
 tect against the existence or growth of any rival rail¬ 
 road, city, town, trade, manufacture, or competition of 
 any kind which is able to gain a foothold and make 
 its way in the world. Let the struggle go on, and the 
 fittest will survive. 
 
 For the Louisville and Nashville Railroad, I beg 
 leave to say that it expects to hold its own business 
 by the facilities and accommodations it is able to give 
 its patrons. It well knows that triumph gained in any 
 other waj^ would be delusive and short-lived ; and it 
 
 588186 
 
2 
 
 is working not for temporary success, but for a perma¬ 
 nency. But it lias become fashionable in Georgia 
 within the past year, when it was desired to excite 
 prejudice against anything before the people, to cry 
 out that the Louisville and Nashville Railroad was at 
 the bottom of it. Perhaps some of you may remember 
 
 how much of this was heard in the last election for 
 
 * 
 
 Governor. 
 
 The fact was, that that company, not owning a foot 
 of railroad in Georgia, had no more interest in the 
 State contest than if it had been in Oregon ; and when 
 the cry was raised some weeks ago that the L. & N. 
 was opposing the granting of a charter to the Cincin¬ 
 nati and Georgia Railroad, I was only amused by it, 
 and never for a moment imagined that our interest in 
 the question of this charter would ever be any more 
 than it had been in the election of Governor. 
 
 Bear with me for a moment, while I endeavor to ex¬ 
 plain that the building of the proposed road from 
 Rome to Atlanta will not be an injury to the Louisville 
 and Nashville Railroad. The principal business of 
 the L. & N. Road in Georgia lies in bringing to it the 
 products of the West. Our rails stop at Chattanooga. 
 The State Road, free to all, cannot discriminate against 
 or refuse to receive our freights and bring them to At¬ 
 lanta for distribution on equal terms. So long as that 
 is the case, we are entirely satisfied with the situation. 
 But, in a little more than eight years, the situation will 
 be changed by the expiration of the lease of the road. 
 When that time arrives, it must be clear to every one 
 that it will be to our interest that there should be two 
 roads in existence. 
 
 Should we desire to purchase the State Road, the 
 price will be materially less ; and should we not desire 
 to purchase it, we can still be assured, with our large 
 business, of securing fair treatment from one or the 
 
 Southern Pamphlets 
 Hare Book Collection 
 UNC-Chapel Hill 
 
3 
 
 other. So that, looking into the future, we have al¬ 
 ways desired that, by the end of the lease, a competing 
 line should exist in some shape. 
 
 There is nothing but common sense in this ; and it 
 bears out the sincerity of my declaration that the L. & 
 IT. Road makes no objection whatever to the granting 
 of a charter, and as liberal a charter as is possessed by 
 any other road in the State. 
 
 But the charter which is proposed, only came under 
 my observation day before yesterday, and to my sur¬ 
 prise I found in it a provision which has brought me 
 before you. It is a provision which has never been 
 granted to any other road in this State ; nor, so far as 
 I know, in any other State ; a provision which has no 
 foundation whatever, injustice or right, and which I 
 consider is in effect no better than a proposition to rob 
 the Georgia Railroad, and possibly other roads in the 
 State, including the State’s own property, the Western 
 and Atlantic Railroad ; a provision, moreover, which, 
 as a railroad manager, and with some experience in 
 these matters, I believe to be entirely impracticable to 
 be carried out, without constant accidents to property, 
 and danger to the lives and limbs of all who travel 
 upon, and are employed by the railroads. 
 
 Bearing in mind, therefore, that I am making no ob¬ 
 jection whatever to the issuance of the charter itself, I 
 proceed to point out the provision in the charter, to 
 which I do object, and the reasons for m}^ objection. 
 
 The provisiou is found in the tenth and eleventh sec¬ 
 tions of the charter, as it has passed the House ; and it 
 provides, that the Cincinnati and Georgia Railroad 
 Company shall have the power of condemning three 
 miles of the right-of-way and three miles of the track 
 of any one railroad company where it desires to enter 
 any city, upon payment of such damages as may be 
 assessed by a board of assessors. 
 
4 
 
 The novelty of this proposition to me is so great, that 
 I can hardly believe that it originated with any one of 
 railroad experience and knowledge; and its coolness 
 certainly suggests a higher latitude than this as its 
 birth-place. 
 
 Under this privilege, the Cincinnati and Georgia 
 Road can acquire three miles of track in Rome, six 
 miles in Atlanta, six in Macon, and perhaps three in 
 Brunswick, and three in Savannah at a very small cost. 
 In fact, its terminal facilities, for which most roads 
 have to pay heavily, are to be practically presented to 
 it by the neighbors, 
 
 I say practically presented to it, because, under the 
 rule laid down in the charter, it will only have to pay 
 what is assessed by a board of assessors, as actual 
 “ damage done’’ by the “ use” of the track condemned. 
 
 Now, as the original company has to layout the in¬ 
 vestment for all of the land, grading, cross ties and iron 
 anyhow, the actual “damage done” will only be the 
 wear of the track by the passage of the engines and 
 cars of the Cincinnati and Georgia Company. The 
 latter company will, therefore, have the benefit of all 
 the permanent investments of the companies whose 
 property it condemns ; and the only excuse or justifi¬ 
 cation which it can offer for its modest demands is that 
 it desires to have these facilities at a less price than it 
 will cost to buy and build them for itself. It is ab¬ 
 surd to say that they cannot be had in any other way. 
 
 Gentlemen representing this company have had a 
 great deal said in the papers about the millions of 
 money they are bringing to Georgia. If they can get 
 the Legislature to give them the right to use other 
 people’s property, they will be able to take the greater 
 part of it back. But if they have the money to spend, 
 there is no trouble whatever in their readily obtaining, 
 not only equal, but greatly superior facilities to any 
 
5 
 
 that now exist in any city in Georgia, and if they have 
 not got the money to spend, they are not entitled to 
 have them. 
 
 The Pennsylvania R. R., which I believe has no 
 more, if as much, capital as this company is providing 
 for, are now establishing themselves in the very heart 
 ot Philadelphia, a mile beyond their present depots ; 
 in a city compactly built, and where property is ten 
 times more valuable than in any city in Georgia ; and 
 they are doing this, T am informed, without any con¬ 
 demnation, but by purchase in open market. 
 
 I dont believe the courts will sustain such a feature 
 as this, in a charter as Constitutional. 
 
 If I owned a house, the State may condemn it for a 
 fort or a powder magazine, or for any public necessity. 
 But it cannot condemn it simply to make me let some 
 other person come and live in it with me. It cannot 
 condemn it simply to be applied by another party to 
 the same use to which I am applying it. If it has the 
 right to condemn three miles, it will have the equal 
 right to condemn thirty miles or three hundred. And 
 if the Cincinnati and Georgia R. R. Co. have this right 
 at all, I am very much obliged to them for their 
 modest}^ in not asking a charter at once to condemn 
 the whole Georgia R. R. 
 
 The Louisville and Nashville R. R., as the Commit¬ 
 tee are probably aware, is a rival and competitor for 
 business with the Cincinnati Southern; and the L. & N. 
 has recently bought the L., C. & L. R. R , which ter¬ 
 minates on the south bank of the Ohio river, and de¬ 
 pends upon a lease and contract with the Pittsburg, 
 Cincinnati and St. Louis Railway for its access to Cin¬ 
 cinnati by bridge and its terminal facilities in the city. 
 The Cincinnati Southern has a bridge of its own which 
 cost it perhaps a million dollars. How would it strike 
 this Committee to hear that the L. & N. road was 
 
6 
 
 seeking to condemn the Cincinnati Southern’s bridge 
 and its right of way into Cincinnati for its own use? 
 And, especially, how would it strike them to hear that 
 they proposed to pay for this use only the damage that 
 would be done to the bridge by our trains passing over 
 it? 
 
 Doubtless the Cincinnati and Georgia Railroad Com¬ 
 pany have an agent in Atlanta sometimes to look after 
 their interests. It would be exactly on a par with this 
 application if they should, to save themselves as much 
 expense as possible, apply to the Legislature to give 
 that agent the light to sleep in the same bed with any 
 railroad man in Atlanta on paying as damages what it 
 w T ould cost to wash the sheets. 
 
 As to the right to cross the Georgia Railroad or any 
 other railroad in the State, I have no objection to make. 
 But I would suggest to the Committee that, even in 
 crossing, they should be required to cross not at grade, 
 but either by overhead bridge or tunnel, as a measure 
 of public safety. All crossings are elements of danger. 
 There is not a crossing in the United States at which 
 accidents more or less serious are not of quite frequent 
 occurrence. 
 
 It is the law in England of late years, and I think is 
 being followed in new charters in many of the States 
 of the Union, to require all railroad crossings in future 
 to be above or below grade. The expense is not great, 
 being no more than crossing a stream twenty feet wide ; 
 and the safety of the public for all time is assured, 
 and the road itself receives compensation by the free¬ 
 dom from accidents and the saving of the expense of 
 crossing-frogs and the perpetual salary of day and 
 night watchmen and signal tenders. 
 
 But, referring again to the condemnation of track 
 for joint use, even if there were no considerations of 
 equity and fair dealing or constitutionality involved, 
 
I do not believe it would be practical to operate jointly 
 three miles of track into Atlanta under condemnation. 
 I am well aware that joint track is often successfully 
 used by two railroads, but such joint use can only be 
 by contract and agreement. Where it is a matter of 
 contract and agreement, the officers of one road have 
 the exclusive charge, making all rules and regulations 
 governing the movement of every train, an*d the em¬ 
 ployees of the foreign road are considered as the em¬ 
 ployees of the home road when on its branch. Under 
 no other circumstances would anyroad allow joint use 
 of its track by another. Again, contracts of this kind 
 are always only for a term of years, so that opportu¬ 
 nities are offered from time to time for revision and 
 change. The right by condemnation would be one in 
 perpetuity, and would prevent the older road from, 
 making the changes which the gradual development of 
 railroad business is forcing upon the country with suc¬ 
 ceeding years. 
 
 Suppose, for instance, the thing accomplished, and 
 the Cincinnati and Georgia Railroad Company to have 
 the joint right to its track with the Geergia Railroad 
 out of Atlanta, and the Georgia Railroad should desire 
 to increase its yard room by devoting that track to 
 other purposes, and building another one somewhere 
 else. 
 
 The rights acquired by the Cincinnati and Georgia 
 Road would enable it to object and throw obstacles in 
 in the way of the change. 
 
 Again, it is very probable that in a few years there 
 may be a change of gauge of some of the principal con¬ 
 nections of the Georgia Road, and it may desire to 
 change its guage to four feet and eight and a half inches 
 from the present five feet, in order to save transfers and 
 delays, and cheapen transportation. Here, again, the 
 new road could oppose and prevent it. 
 
8 
 
 To force such an arrangement upon a road by law 
 would be equivalent to forcing a citizen to receive an¬ 
 other into his house to live with him perpetually with 
 equal rights as to the control, or forcing one man to go 
 into a business partnership with another, and all for 
 no purpose but to save the new comer some expense. 
 
 It is no answer to my objections to say that railroad 
 property is no more sacred from condemnation than 
 the property of any other citizen. # That is very true, 
 and cheerfully admitted. It can be condemned to any 
 other public necessity, but not simply to be used by 
 another party or competitor in the same manner in 
 which I am already applying it. A’s cornfield cannot 
 be condemned for B to plant corn in, nor even for B to 
 plant peas in the rows between A’s corn. 
 
 The necessity of condemning private lands for right- 
 of-way to railroads arises from the fact that there are 
 no other lands but private lands. They comprise the 
 whole country, and a railroad could not advance a foot 
 or drive its first peg without acquiring such a right. 
 But the approaches to a city are as numerous as the 
 points of the compass. Some are cheaper perhaps than 
 others, and first comers to a town, like early birds, get 
 the advantage of them. The later comers can take their 
 choice, as they arrive, of what is left, and it only needs 
 a little money, more or less, to make almost any of 
 them available. There is not a city in the United States 
 where there is not always room for a few more. Even 
 in Chicago they do not pretend to condemn the first 
 comers for the benefit of the later ones, and if Atlanta 
 desires to rival Chicago she should insist on a complete 
 and independent line. 
 
 Again, when a farmer’s land is condemned, he is 
 paid enough to buy as many acres of as good land ad¬ 
 joining, and still carry on his farming operations as 
 before, and unmolested. But if a new road condemns 
 
9 
 
 a part of an old one to its joint use, and brings on col¬ 
 lisions, accidents, quarrels of rival sets of employees, 
 and generally a state of affairs which would make life 
 a burden, must the old road be forced, in self-defence, 
 to go and hunt a new approach ? Yet even that would 
 be preferable to an enforced joint use. 
 
 And now I wish to go a step further and say, that if 
 the Georgia Railroad is to be forced to deal with any¬ 
 body, it should at least be allowed to deal only with 
 corporations which present a reasonable certainty of 
 remaining solvent, unless the State is prepared to 
 guarantee their solvency. 
 
 Now I most respectfully submit that there are some 
 peculiar features in their charter which would make 
 me extremely reluctant to become its perpetual partner 
 in the joint use of a track, or in any relation in which 
 it may have bills to pay. 
 
 In the first place, its capital stock is fixed at the enor¬ 
 mous amount of $16,000,000, with the privilege of in¬ 
 creasing it to $25,000,000, and its power to issue bonds 
 is unlimited. This amount of stock is in itself an evi¬ 
 dence that it is not to Repaid up. No fluid but water 
 is used with such extreme liberality. But, even if 
 there were any doubt upon this point, it is removed by 
 another provision in the charter. 
 
 Usually there is some risk in subscribing to ficticious 
 stock. If the company afterward gets in debt, and 
 the creditors can prove that the stock subscriptions 
 have not been fully paid in cash, they can sue the 
 stockholders for the unpaid portion with, some prospect 
 of success But section 5 provides that these subscrip¬ 
 tions may ncvev bo pciid, and yet no liability attached 
 to the stockholders. It says such subscription shall 
 be paid in cash, or that which the five corporators 
 named, in first section sJiaTL doom its equivalent. 
 The books are to be opened, not publicly, but at such 
 
10 
 
 time and place as the corporators select, of which no 
 one else need have any notice. 
 
 What is to prevent their meeting in some back parlor 
 at night and subscribing the whole $16,000,000, and 
 then receiving 16 bushels of chips and 16 pecks of whet¬ 
 stones, or 16 acres of wild land, and passing a resolution 
 that these things “ shall be deemed equivalent to cash” 
 for their purposes, and the stock declared fully paid up, 
 and the stockholders relieved from any liability to future 
 creditors of the company % And then the company may 
 claim in the papers that it has invested $16,000,000 in 
 Georgia. 
 
 I do not assert that such will be its action ; but it 
 has at any rate very carefully provided the power of 
 going as far in that direction as it suits its purposes to 
 go.) 
 
 It is none of my business, unless I am to be forced 
 to become an unwilling partner with it in the opera¬ 
 tion of a piece of joint property. But if I am to be, 
 I earnestly beg the Committee to so modify this pro¬ 
 posed charter, that the stockholders may be liable for 
 the debts of the company to the amount of stock sub¬ 
 scribed and not fully paid up in hard cash , and not 
 afterwards redivided, but actually expended upon the 
 road before the placing of any bond or mortgage 
 whatever on the property ; for, as the charter now 
 stands, its freedom to issue mortgages and bonds is per¬ 
 fectly unlimited; being in that respect, as well as in 
 many others, an exception to every other charter in 
 the State, so far as I know. It is now in its power to 
 so cover the property with mortgages that no creditor 
 can ever find property subject to levy. 
 
 I therefore object and protest with the utmost 
 earnestness on the part of the Georgia R. R., first, that 
 no person or corporation should be allowed the joint 
 use of our property. Railroad property is of that 
 
11 
 
 character that it cannot be used in common except 
 under conditions of joint consent , and even then, ex¬ 
 perience has proved that such joint use is attended 
 with more than ordinary risks. To compel me to share 
 it with any one is practically to confiscate it. I would 
 rather have it condemned utterly and taken away for 
 good, paying me reasonable compensation and giving 
 me at tne same time the right to move off to myself and 
 be unmolested in the future. 
 
 And next, I protest that if I am forced to deal 
 with anyone I want at least to deal with a corpo¬ 
 ration constructed on a less watery foundation, for 
 there would be constant expenses and accidents of 
 which I have grave fears I would be compelled to liqui¬ 
 date the whole outlay. 
 
 All of the considerations and objections which I have 
 named too, apply with a double force, where the prop¬ 
 erty proposed to be condemned is that, affording access 
 to a city and the terminus of a road, where its trains 
 are made up. It is on that portion of the track that an 
 enormous and constant amount of shifting of trains goes 
 on by day and by night. It would be bad enough and 
 dangerous enough way out upon the main line where 
 only regular trains pass Even there, I wouldprefer to 
 build a double track and make it a present to another 
 road rather than hare them use it jointly with me ex¬ 
 cept on my own terms and conditions. 
 
 But coming into the City of Atlanta, I have no room to 
 build a double track; and if I am compelled to provide the 
 means for the Cincinnati and Georgia Bailroad to get into 
 Atlanta, I would rather make the contribution in money to 
 whatever extent the Legislature may see fit, tor no money 
 could compensate for the risk and annoyance and loss of 
 having them there. 
 
 And to avoid any possible misapprehension, I wish to close 
 as I bcg£ n with the assertion that I am making no objection 
 
12 
 
 whatever to this road’s having a charter, and one unrestrict¬ 
 ed, so far as its power to build roads and branches is con¬ 
 cerned. But I do object to its being allowed to confiscate 
 other people’s roads, or to my being forced to become its 
 partner. 
 
 Charter it only in such a way that the public will be safe 
 in dealing with it, and then turn it loose to go as it pleases. 
 If it has any merit it will make its own way. If it has none 
 the sooner that is made to appear the better. 
 
 Yery .Respectfully, 
 
 E. P. ALEXANDER.