Additional Burdens upon Street 
 Railway Companies. 
 
 ARGUrvIENT 
 
 OF 
 
 Thotv^ms p. Prooxor, 
 
 In Opposition to allowing Cities and Towns to impose Taxes for 
 the Use of Streets by Private Corporations, 
 
 MADE BEFORE THE 
 
 Committee on Cities and the Committee on Taxation, 
 
 Of the Massachusetts Legislatui;^, sitting jc;i,ntjy, 
 
 BOSTON: 
 PRESS OF SAMUEL USHER, 
 
 171 Devonshire Street. 
 1891.
 
 
 5?5
 
 COMMITTEE OH CITIES. 
 
 ^ 
 
 JP 
 y 
 
 WILLIAM S. McNARY, of Suffolk, 
 jO AKTHUR B. BREED, of Essex, 
 
 ^ WILLIAM H. WEST, of Suffolk, 
 
 ^ Of the Sbnatb. 
 
 o 
 
 FRANCIS W. KITTREDGE, of Boston,. 
 WILLIAM E. MEADE, of Salem, 
 EDWARD W. PRESHO, of Boston, 
 JOSIAH QUINCY, of Quincy, 
 WILLIAM P. BUCKLEY, of Holyoke, 
 WILLIAM POWER WILSON, of Boston, 
 GEORGE S. CLOUGH, of Worcester, 
 ISAAC ROSNOSKY, of Boston, 
 Of the House. 
 
 COMMITTEE ON TAXATION. 
 
 MORGAN ROTCH, of Bristol, 
 WILLIAM S. McNARY, of Suffolk, 
 
 Of the Senate. 
 
 FRANK P. BENNETT, of Everett, 
 
 NATHAN EDSON, of Barnstable, 
 
 )^ HENRY C. WHEATON, of Worcester, 
 
 > AARON O. WILDER, of Leominster, 
 
 o 
 "Z^ MYRON L. CORBETT, of Bernardston . 
 
 »3 JAMES H. CARTER, of Wakefield, 
 
 ' CHARLES A. KELLEY, of Boston, 
 
 cP 
 2^ Of the House. 
 
 ^av^ii
 
 AROUMENT OK 
 ThOTVTMS R. RrOCTOR, Esq. 
 
 Mr. Chairman and Gentlemen: — 
 
 There have been a great many bills presented here, some 
 ten or fifteen petitions and four or five different bills ; and as 
 I am expected to substantially close for the remonstrants it 
 will become necessary for me to refer to all the bills, for 
 I have no knowledge which one approbates itself to you. 
 Hence, I must speak upoli the question broadly. 
 
 The old Commonwealth shows no partiality. It treats all 
 its children alike, whether natural or created. John A. 
 Andrew said to me the night before I went to the conven- 
 tion for his first nomination as governor, " You know I have 
 very extreme views on various subjects, but if I am nomi- 
 nated for governor, and elected, I shall be governor of the 
 whole Commonwealth and treat the conservatives as well 
 as the radicals and hold my extreme views in check." But 
 if there are any on this Committee or among the petition- 
 ers who have extreme views on this subject and so very 
 extreme that they ask the Legislature to take money from 
 the horse railroads and put it into the treasury of the city, 
 however illegally, however much against a breach of faith, 
 however much against public policy, however much against 
 the harmony of the communities in which the companies 
 exist, and to their detriment, then I say to such extreme 
 men, " You stand in your own darkness ; and my prayer is, 
 that I may give you a little light." 
 
 Matthew Arnold told the defects of the Americans, but 
 he said the defects of the Americans were not the greatest 
 trouble — they did not know what their .defects were, and 
 from the fact that they did not know them they could not
 
 6 
 
 correct them. But I hope that anybody who has any defects 
 or extreme ideas on this subject will seek light and seek to 
 correct them. 
 
 The only source of all this trouble is the yawning maw of 
 the city of Boston. The Legislature, in its wisdom, has seen 
 fit to limit the power of the city to tax its citizens. It 
 could not trust the city government to tax the citizens 
 unlimitedly ; and consequently certain persons look about to 
 see ho\v they can get some money, to see how they can cease 
 to tax the taxpayer and through the horse railroads tax the 
 passengers. They must bleed somebody and they choose to 
 bleed the horse railroads to supply the vacancy in the 
 yawning maw, and bleeding the horse railroads they bleed 
 the passengers who ride upon their cars. It has been asked 
 by one of your Committee not now present, " Will it make 
 any change with the passengers if an additional charge is 
 put upon the horse railroads ? " I am amazed that such a 
 question should be asked. Everybody knows that one half 
 of the corporations are bankrupt to-day or paying no divi- 
 dends, and if they are earning just enough to pay their 
 expenses without- enough to pay any dividends and they are 
 paying, call it for form's sake, a hundred dollars, and you 
 put on a charge of ten dollars more, where is the ten dollars 
 coming from except out of the wages of the laborer or 
 increased fares or lessened service or non-extensions or a 
 saving from some source to pay that extra ten dollars? 
 Does anybody on this Committee hesitate for one moment 
 upon the question, that if you put on an additional charge 
 it has got to come out of one of those five sources ? You 
 cannot turn a pint into a quart — not by the present laws of 
 science. 
 
 Now, gentlemen, here is an attempt to bleed the corpora- 
 tions for various motives, and the first one is, the capitalist 
 with his millions (who does not want to reside in Nahant) 
 wants to keep his taxes low, and so he says, take what more 
 is necessary out of some corporation where he does not 
 happen to hold any stock. There may be another motive 
 for this movement. It may be that a gentleman seeking
 
 political preferment wishes to hold his sail and catch the 
 breeze that will move him into power, and hence he is will- 
 ing to come here and ask you to put this thing through and 
 associate himself with the movement, with the idea of catch- 
 ing votes from the public ; but I tell you that any man who 
 does that will find that he has waked up the operatives of 
 the horse railroad companies (who can hardly pay them 
 their wages now) and he will wake up the passengers that 
 ride on the horse-cars if you do anything that is going to 
 result in affecting them, and he will wake up a storm which 
 will turn the wind from this quarter into the other, and you 
 will find these men who are seeking political preferment 
 running from this movement like rats from a sinking ship. 
 There may be other motives ; there may be a man who 
 thinks he has perfected a great invention and it seems to 
 him like a delightful baby which he must nurse ; he wants 
 to push it in here (notwithstanding the policy of the old 
 Commonwealth, that the system we have to-day is the best 
 one, and the very one the city of London has), he wants 
 to push it in here and revolutionize our whole system for 
 the sake of having his invention tried, for the sake of having 
 his nostrum put into practice, and it will turn out like 
 Brown-S^quard's elixir, which lasted a few months and 
 then disappeared, and the lymph of Dr. Koch. These theo- 
 ries that come up here are nine tenths of them like nos- 
 trums of that kind. Give them leave to go away and not 
 trouble this body nor harass the communities where horse 
 railroads exist. 
 
 Now, gentlemen, the stock in trade of this whole move- 
 ment is based on three untruths. I cannot be complained of 
 for calling them untruths, and I will not say the harder word 
 because the advocates thereof may be honest in what they 
 say, although I cannot understand it myself. We are told, 
 in the first place, in this celebrated document. City Docu- 
 ment 144, — and I wish more of its authors were here, — we 
 are told that the corporations pay nothing for their right to 
 lay the tracks in the streets. Now, gentlemen, I submit 
 that nothing is farther from the truth than that. We have
 
 8 
 
 from the Legislature corporate existence and" we have author- 
 ity to go to the board of aldermen for a location and then 
 and there they grant it on a condition. What is it ? That 
 we shall plant our capital in the street, to remain forever, 
 and in sixteen years, even if it succeeds, that capital is 
 turned to dust, and there is not a corporation, a railroad 
 corporation in the Commonwealth of Massachusetts that has 
 not sunk its first capital that it put in for the rights which 
 were given to them at the time, once, and sometimes twice 
 and thrice. Tell me that burying the capital in the street as 
 the consideration for a right is not paying anything I It is 
 just as much as if it had been paid into the treasury of the 
 Commonwealth ; it is put into the street for the public good. 
 The public has had the benefit of it, of every dollar in case 
 of those corporations which have paid no dividends (which 
 is nearly half of them), and the companies have changed 
 their fare and reduced it to five cents. 
 
 There is no question about this ; it is as plain as two and two 
 is four. The money is paid out and gone forever from every 
 corporation that is running to-day, and it is put where the 
 Commonwealth told us to put it; it is gone, and it is a 
 consideration, and a tremendous big one too. Then they 
 mortgage their franchise and their road to get enough to 
 equip it and to run their cars. 
 
 Now here is paid out say $100,000 for the right to lay 
 iron in the street, and, gentlemen, it may surprise you, but 
 it is the truth, that the iron and sleepers in a street a month 
 after they are laid will hardly pay the expense of taking 
 them up. After they have been there a little while, certainly 
 it will not, without the right — mark you the distinction — 
 without the right to keep them there and run the road, that 
 iron and those sleepers are not worth the money it costs to 
 take them up. You put down $100,000 in iron and sleepers 
 to-day, and it is gone forever, and these gentlemen come 
 in here and say we have no franchise right they are bound 
 to respect, and if we have no right, we have nothing at all. 
 The iron and rails without the i-ight are valueless, although 
 they cost $100,000. If we have no right, then we have sunk
 
 9 
 
 $100,000 for nothing. At all events there is the considera- 
 tion for the right that was given to us — we say legally 
 given to us for a valid consideration ; they say not. 
 
 Now, gentlemen, the second question ; and I want you to 
 bear this in mind carefully, because if I meet any child in 
 the street, and I ask him : " Here is a horse railroad going 
 through tlie streets which has never paid anything for the 
 right of going through the streets ; horse railroad^ in other 
 countries are paying for it ; they are all of them able to pay 
 for it, — why should n't this company do it ? " the child will 
 say, " Yes ; if these three things that are stated are true." If 
 they were true, I would agree with him, but they are all 
 false. I have just showed you how we pay our capital for 
 the right to lay the tracks in the streets, and it is all gone 
 and the public have the benefit of it — do not forget that, 
 because it is the only argument and all they have to rely on 
 in an equitable point of view. Now I say secondly, they 
 say we do not pay as much as they do in other countries. I 
 say that is equally untrue, and I propose to show it from the 
 document itself. I hardly need to do it, for Mr. Whitney 
 has demolished it as to foreign countries. 
 
 Representative Kittredge. Before you leave your first 
 point, I want to ask you a question. I understood you to 
 say that you pay $100,000 for the right to lay your tracks 
 upon the streets. What is the explanation of that state- 
 ment? 
 
 Mr. Proctor. I pay it as a consideration for the right 
 to lay them. I agree to plant so much money in the street 
 if the Legislature grants me a charter and the board of 
 aldermen will give me a right, and I would not give one cent 
 for the right if it is not a permanent right. That capital 
 buried in the streets, whether it be one sum or another; 
 whatever they bury in the streets the public get the benefit 
 of, and when we accept a location we agree to do that, and 
 that is the consideration we pay for the grant that is given us. 
 
 The Chairman. That I understand ; but you do not pay 
 it for the right. 
 
 Mr. Proctor. I pay it for the grant of a location. I
 
 10 
 
 call that payment for the right. I get a right ; I give the 
 money. It is a contract. 
 
 I was just saying, Mr. Quincy, before you came in, that 
 the Document 144 does not state what is true, namely, that 
 we pay nothing for our right. • I say every horse railroad 
 that pays for putting down its track and its sleepers in the 
 street in pursuance of the agreement, which it makes when 
 it accepts its location, buries so much money which is gone 
 forever, and is the consideration for the right to put them 
 there. That is the contract. They say, you are located 
 there if you ^vill put in money enough to make a track, and 
 the public gets the benefit of it by your running your cars. 
 That is the consideration. That money is gone forever ; it 
 never returns to anybody ; however successful the corpora- 
 tion may be it is turned to dust in sixteen years, and in the 
 case of more than half the corporations it is not only buried 
 once but sometimes twice and thrice to keep the cars 
 running. 
 
 Secondly, I say that this document does not represent the 
 truth when it says that we do not pay as much as com- 
 panies in other places. 
 
 Representative Quincy. What is this document that you 
 speak of? 
 
 Mr. Proctor. City Document 144. The city of Buffalo 
 is an illustration of what I was saying, but as to the impol- 
 icy of selling off anything of that kind at auction, first, they 
 bid them off at thirty-six per cent, and they have, accord- 
 ing to this report here, got but one payment, of $340, and 
 the next time it was sold it was bid off at eleven and three- 
 quarters per cent, of the gross receipts and not a cent has 
 been received for it. But it is universally the case that 
 where this business is done in the streets there is an antago- 
 nism, — get all you can out of the people, on the one hand, 
 and the people, all they can out of the horse railroad, on the 
 other, and there is never a healthy, harmonious cooperation. 
 It is best to have something like a happy cooperation or 
 partnership. 
 
 Again, Chicago charges -foO a car. Take 200 cars on a
 
 11 
 
 road which runs through a sparsely settled district here, and 
 that where they only make $10,000, and we pay (in a tax, 
 that the city of Chicago does not charge at all) $10,000 for 
 our road, which is no comparison to the roads in the city of 
 Chicago. They do not begin to pay as much as we do. 
 
 Then again, Cincinnati charges $4 a linear foot of the car, 
 and they do not begin to pay as much as we do for the 
 same rights which we get. 
 
 Representative Quincy. What do you mean by that? 
 Don't they pay the local tax ? 
 
 Mr. Proctor. No, sir. 
 
 The Chairman. Do you mean not as much as you do, or 
 don't they pay a franchise tax ? 
 
 Mr. Proctor. There is n't a franchise tax like that in 
 Massachusetts in the world. The only thing that comes 
 anywhere near it is in New York, and it is one and a half 
 mills on the par value ; on $500,000 it would be $750 for 
 the year, which is not a tenth part as much as we pay. I 
 asked George Fred Williams if there was any other tax like 
 it, and he said no, and here is Brother Harding, with a zeal 
 that does credit to his energy at least, could only find this 
 New York tax ; so I think you can rely upon that statement 
 of facts as correct. 
 
 Cleveland, Ohio, charges $10 a car, which is not a 
 quarter of what we pay on our little road. Detroit charges 
 nothing of any kind. Jersey City charges nothing — no 
 revenue received; Kansas City the same; Milwaukee $15 
 a car ; 200 cars would be $3,000 ; that is n't half as much as 
 our franchise tax. Newark, N. J., on the same rate, would 
 pay $12,500, and that would not be nearly as much as we 
 pay, taking in the things which are left out in New Jersey. 
 
 I asked Mr. Meyer when he was here commenting upon 
 this document, and he said he had made no comparison 
 between our roads here and these roads, taking all the 
 elements into consideration ; he had made no comparison 
 on that basis. His statement is utterly worthless. Nobody's 
 statement is of any value unless you take into consideration 
 all these elements, and the strongest element is the short- 
 ness of the line and the compactness of the city on that line.
 
 12 
 
 Then I come to the State of New York, and there is no 
 comparison between that and Boston, considering the com- 
 pactness of the city and the shortness of the line. They 
 give them a line from the North River to the East River 
 right through the thickly settled part of New York, and it 
 is not a third of the distance we carry people paying five 
 cents. The cost of running a horse railroad runs up to 
 three quarters of all that is received. You take off some of 
 those expenses and you magnify the profit immensely and 
 of course you can pay a large income out of that, but with 
 us the most of our roads are bankrupt and only four pay 
 above 8 per cent. 
 
 The Chairman. You say you take away the permanence 
 of that right from the railroads and they could not pay their 
 debts. As I have understood it here, the claim on the part 
 of the horse railroad men and representatives, and as I read 
 the charters, they have n't any permanence of right. 
 
 Mr. Proctor. Who have n't any permanence of right ? 
 
 The Chairman. The horse railroads, as I understand it. 
 I understand that has been the burden of the complaint, 
 that they have not any permanence of right, and you 
 want it. 
 
 Mr. Proctor. The petitioners have put it that way, and I 
 am taking them on their position. If their position be true, 
 to wit, that we have not any permanent right, then the iron 
 may be forced up at any minute ; and if they order them to 
 be taken up, the iron and sleepers would not pay for the 
 cost of taking them up and fixing the streets ; and if you 
 take that out, the rest of the property will not pay the debts 
 of any corporation. West End or any other. 
 
 The Chairman. Do I understand that you are going to 
 put your rights on the ground that you have a permanent 
 right ? 
 
 Mr. Proctor. Of course I am ; but before I get to the 
 law I want to nail these three untruths, and show that we 
 pay largely for the rights that are given us, and show that 
 we are now paying all that the roads in other places pay.
 
 13 
 
 when taking all the elements into consideration, short lines 
 and thickly settled cities as against long lines and sparsely 
 settled towns and all the questions of taxation that come in. 
 K you could sit long enough to get all the facts, you would 
 find that we are paying as much as anybody else ; that the 
 policy of forty years in old Massachusetts, when you will 
 sift the matter to the bottom, is the best policy, and it is 
 revolutionary, injurious, destructive revolution to change it ; 
 and thirdly, when they say that we are able to pay more, when 
 they flippantly say here with a kind of cheerful assurance 
 that they know all about it, that we can pay, they simply 
 know no more about it than they do about watchmaking. 
 They have not taken the trouble to look at the returns to 
 the railroad commissioners, which show that more than half 
 of them are totally unable, and I tell you from my knowl- 
 edge of them — and I have had a hard knowledge for 
 twenty-five years, and I ought to know something about it 
 — I know they are not able to bear any more burdens than 
 they are bearing to-day. They are giving the public, the 
 people, enough, and I shall refer to it more particularly as to 
 our road later. 
 
 Now, gentlemen, I come to another subject, and it is a 
 little delicate. What do we find here ? Gentlemen, excel- 
 lent gentlemen, come up here and ask — what ? These gentle- 
 men come up here and ask the Legislature to put power into 
 the city to take the money out of one corporation and put it 
 into another. They ask that the city should be the judge in 
 its own case. A city may have given to it power to regulate 
 the use of a street. That is what has existed here before 
 without limit or control, but never before in my experience 
 or within my knowledge has anybody had the audacity to 
 approach a Legislature in any State and ask to have a man 
 or a city or a corporation given the power to determine how 
 much money he shall take out of somebody else's pocket 
 and put it into his own. Monstrous in the very simple 
 statement of it, but how much more monstrous does it 
 become when the very man who comes up here and asks to 
 be one of the factors, with his associates, to take the money,
 
 14 
 
 comes up here and says to you : " I want the power to take 
 that money, and I am going to take all I can get, and I am 
 going to deal with them just as I would with a tenant, and 
 screw them up to the highest pitch." 
 
 I say that to make the city a judge is the most monstrous 
 proposition I ever heard of, and how much more monstrous 
 does it become when a man, manifesting the spirit which the 
 leader of that body of the city government did manifest, 
 comes and asks to have himself with his associates made 
 the judge. Good heavens ! on what times have we fallen ? 
 Have we lost the first principles of honesty, the first prin- 
 ciples of propriety, the first principles of having any judge, 
 whoever he may be — 
 
 Representative Rosnosky. Mr. Chairman, do I understand 
 the gentleman to be alluding to the city document. 
 
 Mr. Proctor. Not at all : I am not alluding to that. I 
 am alluding to the impropriety of making the city its own 
 judge of how much it should take out of anybody's pocket 
 and put into its own treasury, and then I state beyond that 
 that it is improper to give the power to any board of aldermen 
 who have manifested a prejudgment already. Still greater 
 is the reason for caution and delay in crossing the lines 
 which have been established from the time King John gave 
 the Magna Charta to the people of the world. I have said 
 nothing, remember, Mr. Chairman and gentlemen, in any 
 way reflecting on any gentleman connected with any docu- 
 ment. I commend their zeal as far as it went. The mis- 
 fortune of it is that it went only so short a distance and 
 produced a result which did not give the truth and the whole 
 truth, so that it would not mislead. My criticism of it was 
 simply that it has caused many people to believe that the 
 three propositions were true, to wit, that we paid nothing 
 whatever for our rights, that other people paid more, and 
 that we were able to pay more, neither of which propositions 
 is correct. 
 
 Now, gentlemen, I have called your attention to the ques- 
 tion of making a man his own judge, and, as the next subject 
 alluded to, I come to the question that most of the bills
 
 15 
 
 that have been put in here have been put in without any 
 appeal from that judgment, which only aggravates the mon- 
 strous proposition. And then, gentlemen, still another point 
 — not only is there no appeal, but there is no limit to the 
 spirit which may induce any body of the city to take as 
 much money as they have a mind to, when it is necessary 
 to build any new streets or carry through any new enterprise 
 they want to, to say nothing of a junket. 
 
 Representative . Mr. Chairman, Mr. Proctor thinks, 
 
 then, that a bill which gave a right of appeal to some 
 board, as, for instance, the railroad commissioners, which 
 limited the amount to be charged by the city, with a 
 guaranty to the stockholders of the corporation that they 
 would receive their just due, — you think that would not 
 be objectionable. 
 
 Mr. Proctor. I would not answer your question quite 
 yes, but I would say that that proposition would be very 
 many times better than those that have been presented, and 
 I thank you for asking the question ; and, gentlemen, there 
 is still another most terrible proposition in here in this con- 
 nection, that can only be known to a horse-railroad man, 
 and it was drawn out by my questions to Mr. Harding. He 
 says when this is passed, Mr. Whitney, for illustration, will 
 be called up and asked, How much are you going to give for 
 Washington Street ? and the thing would all be done, — that 
 is the practical way it would be done. He did not tell you, 
 because he did not know, that right on that hangs the life 
 or death of the West End road. Let any man charged with 
 the power to put money in his own pocket, as I have said 
 here, say to the West End Railroad, Give me $100,000 for 
 the use of the streets from the northern depots to the south- 
 ern depots on Washington Street, or I cancel the whole of 
 your locations, and do the same on Tremont Street, for a 
 mile long on each, and West End has got to do whatever 
 the government or the party having the power says, or be 
 kiUed. 
 
 You might as well cut a man's throat and tell him he is 
 alive as to cut a mile out of Tremont and Washington
 
 16 
 
 streets, and take up the tracks of the railroad if it does not 
 pay for it, because without it you cannot get from one end 
 to the other. There is no communication between the two. 
 Give a man that power and he can make that same proposi- 
 tion, and the company has got to pay just what the man says 
 or it is dead ; and is that the kind of power, gentlemen, you 
 think it is safe to leave in the hands of anybody, of any man 
 who is interested in behalf of the treasury into which he is 
 going to pay the money ? 
 
 Where you see a fire break out you know there is trouble 
 there, but that is only one instance, when there are a dozen 
 where the trouble does not break out, and you know, with 
 your experience of life and city government, that there are 
 ten or a hundred troubles of that kind, where money is 
 undoubtedly used, that never come to the surface. It is 
 only the exception that bursts out, and I say, take your St. 
 Louis case, where there has been this $210,000 misused, or 
 improperly used, and before your ears have ceased to hear 
 that, then comes Elmira up to the same kind of thing ; and 
 our own Boston has its five-hundred-dollar troubles. All 
 these things every man knows, and it seems to me that every 
 man must appreciate the folly of putting the subject of 
 money into the hands of the city government or any branch 
 of it ; but if this revolutionary process is to go on at all, give 
 it to some disinterested judicial body that the community 
 can respect and the corporations can respect, and all would 
 go infinitely better than it would if it were managed in the 
 manner that is proposed. But the whole thing is wrong, as 
 I shall show you. 
 
 Now, gentlemen, I have one other subject in this connec- 
 tion. I tell you this is but the entering wedge ; this attempt 
 to put into the hands of the city government the power to 
 take money is all wrong, but it is only the entering wedge. 
 It is started on the street railways ; it will very soon start 
 on steam railways. Why, gentlemen, there is a steam rail- 
 way in the city of Boston that crosses the Chelsea bridge, 
 and on the twenty-eighth of February it shut down its gates 
 four hours out of eleven, and on an average it is shut
 
 17 
 
 between two and three hours. Talk about horse-railroad 
 cars, that are serving the public all the time, obstructing 
 the streets. Steam railroads do it still more, where the 
 public service of carrying freight requires it, and all you 
 have got to do is to simply push this thing one step farther 
 and you have extended it to all the corporations in the Com- 
 monwealth, and the impolicy of it is sure to drive all the 
 capital out of the Commonwealth. 
 
 Now, gentlemen, we have been told here that the city 
 should charge rent. The city has nothing whatever to rent. 
 The abutters own the fee, the public own the use of the 
 streets, and the municipal corporation, as such, has nothing 
 whatever to rent. A lease made by the city would not be 
 worth the paper that it was written on, for it has nothing to 
 give. It cannot lease. 
 
 Representative* Kittredge. What do you mean by the 
 public? 
 
 Mr. Proctor. The people, every one in the Common- 
 wealth, and the people in the West as well as the people 
 in the East. 
 
 I will quote now, for your pleasure, Hampshire v. Frank- 
 lin, 16 Mass. 84, where it is said, " It is not in the power of 
 the Legislature to create a debt from one person to another, 
 or from one corporation to another, without the consent, 
 express or implied, of the party to be charged." 
 
 Gentlemen, I dismiss the subject of rent because it is, to 
 my mind, too silly to be thought of. The only thing that the 
 Legislature has power to do is to charge a consideration for 
 the grant that it gives to the corporation. It first creates 
 the corporation, and then from time to time the board of 
 aldermen, representing the State, gives the location. They 
 can charge then what the State requires them to, and that is 
 the consideration for the grant. The only thing left for the 
 Legislature where they can take anything out of the cor- 
 poration is to tax it. They can, first, tax its property ; and 
 they can, second, tax its franchise. 
 
 Jtepresentative Quincy. Then, as I understand your posi- 
 tion, it is that the board of aldermen are acting as the
 
 18 
 
 agents of the Commonwealth and not as the representatives 
 of the city in granting the location. 
 
 Mr. Proctor. They make a contract. There are two 
 parties present. There is the horse railroad, on one hand ; 
 there is the State represented by the board of aldermen, on 
 the other. The railroad asks for a location, the city grants 
 it, the horse railroad accepts it, and that acceptance is an 
 agreement that they will build the track — in other words, as 
 I call it, bury their capital in the streets — and run their cars. 
 That is a contract, and that contract must not be confused 
 with the corporation contract which is made for its existence. 
 When the Legislature grants a charter it gives existence to 
 an artificial creature. That is one contract, you may call it. 
 From day to day locations are granted, and every time a 
 location is granted a contract is made ; and you must not 
 confuse the two. 
 
 Representative Quincy. But you say it will be a breach 
 of contract to revoke the locations ? 
 
 Mr. Proctor. I will give you the law on that : — 
 
 1. Neither the board of aldermen, when acting solely as 
 municipal officers, nor the cities, have now any power to 
 grant any street railway location or to require money to be 
 paid into the city treasury for any street railway location. 
 And I wish to read very briefly from the case of Cambridge 
 V. the Cambridge Railroad, 10 Allen, 57. That was a case 
 where Cambridge undertook to interfere with a horse rail- 
 road. 
 
 " Certainly no right or authority to exercise any super- 
 vision or control over the defendants, or to require them to 
 conduct the operations of their road in any manner other 
 than is deemed expedient or proper by the defendants, or to 
 enforce any supposed agreement or condition, is vested in 
 the mayor and aldermen, under the general powers and 
 duties devolved on them by law as o: :.cers acting for the 
 city. Nor is there any such right or authority vested in 
 them by the acts incorporating the defendants. So far as 
 they are instructed with any power in relation to the 
 location and construction of the road, and other matters
 
 19 
 
 connected with its use, these duties are specifically enumer- 
 ated and defined, and they are to be performed by them, not 
 as officers acting for or representing the city, but as a body 
 of men on whom certain duties of a ministerial or quasi- 
 judicial nature are by law devolved. These duties have no 
 necessary or essential connection with those which they are 
 called on to perform in their official capacity as a branch of 
 the city government. They might have been imposed as 
 well on any other body of men, if the Legislature had seen 
 fit, although it was doubtless wise as a matter of convenience 
 and expediency that they should be performed by those who, 
 in their official connection with the city, would be more 
 likely to discharge them without difficulty and to the 
 advantage of the public. But we look in vain for any 
 provision of law which authorizes them to act in behalf of 
 the city, either in making any contracts with the defendants, 
 or in enforcing, in their names. or in their official capacity, any 
 contract created by law, with the city or the public, under 
 the acts incorporating the defendants. If the conditions on 
 which the location of the road or any part of it was granted 
 
 to the defendants can be properly regarded as a contract 
 
 a point not necessary now to determine — it was not one to 
 which the mayor and aldermen were a party, or which they 
 are capable of enforcing. They were merely agents in 
 prescribing the terms of such location, with specific and 
 limited powers, and possessing no power or authority beyond 
 those enumerated, among which is not included that of 
 maintaining an action to compel the defendants to comply 
 either with the terms of their charter or the conditions on 
 which they were jjermitted to construct their tracks through 
 the streets of a city." 
 
 That states the position of the board of aldermen exactly 
 and there can be no f^uestion about it. And that law 
 remains the same to-day. I will read a short extract now 
 from Brimmer v. Boston, 102 Mass. 22. 
 
 " In laying out ways within the city of Boston, the board 
 of aldermen have similar powers, and perform like duties, as 
 are exercised and performed by the county commissioners
 
 20 
 
 in the other counties of the State. General Statutes, chapter 
 43, section 77. In the exercise of these powers and perform- 
 ance of these duties, they act, not as officers or agents of the 
 city, but as public officers, vested with quasi-judicial functions, 
 and deriving their power froin the sovereign authority. The 
 board of aldermen and common council, in laying out and 
 constructing ways, are not subject to the direction or con- 
 trol of the inhabitants of the city, but are an independent 
 board of public officers, vested by law with the control of all 
 matters within their jurisdiction, and performing duties 
 imposed by general laws." 
 
 There are other cases cited on my brief, which I shall give 
 you, establisliing what the law is, beyond all question. I 
 say: — 
 
 2. Neither the board of aldermen, when acting solely as 
 municipal officers, nor the cities, have the power to revoke 
 any street railway location merely for the purpose of making 
 a new location in the same street or requiring money to be 
 paid therefor into the city treasury. 
 
 3. The board of aldermen appointed by the Legislature 
 to make locations for street' railways (whether acting as 
 individuals, or as trustees, or in a quasi-judicial capacity) 
 have not now the power to require any money to be paid into 
 the city treasury for any street railway location. 
 
 4. The board of aldermen appointed by the Legislature to 
 designate street railway locations (whether acting in their 
 capacity as individuals, or as trustees, or in a quasi-judicial 
 capacity) have not the power to revoke a location merely for 
 the purpose of making a new location in the same street or 
 requiring money to be paid therefor into the city treasury. 
 
 5. The present power of the boapd of aldermen (in what- 
 ever capacity they act) to revoke a street railway location 
 is limited to the present statute provisions, stating in what 
 cases revocations may be made. They act under special 
 provisions, and that case that I read covers it ; but I shall 
 come to it farther on. 
 
 6. The words now" in the statute, " if, in their judgment, 
 the interests of the people so require " (Public Statutes,
 
 21 
 
 chapter 113, section 23), have been judicially defined to 
 mean that the officers are to exercise the power " as, in their 
 judgment, the weight of the public convenience in the use 
 of the streets may require " (Medford, etc., Railroad v. 
 Somerville, 111 Mass. 232, 235). You will see that their 
 power to make any revocation is limited to what they think 
 is for the public convenience in the use of the street, and 
 not in taking money out of somebody's pocket and putting it 
 in somebody else's pocket, or for any question of pecuniary 
 consideration. You will find it running through the whole 
 policy of the Commonwealth, — to leave the city to regu- 
 late the use, — the people concurrently using it, turning out, 
 and all that sort of thing ; but there is not an instance in the 
 history of the Commonwealth where they have ever crossed 
 that line and allowed the board of aldermen of a city to 
 touch the question of money. And this, therefore, becomes 
 very important in any bill you shall make here, that you 
 shall see exactly where the line is drawn as to the present 
 powers. The present power of revocation is hmited, and 
 the power is limited as to the use and the methods of use in 
 the streets. Certainly the Legislature has reserved no power 
 in this respect ; and the board of aldermen is in the same 
 position as a justice of the peace who has jurisdiction for 
 $100 ; and Brother Wilson — although he did not do it, and 
 would not do it — made a writ, setting the ad damnum at 
 $1,000. And somebody said, " Why, j^our Court has n't got 
 jurisdiction ; " and he went in to amend it, and the Court 
 said it had n't got jurisdiction enough to allow him to amend 
 it, because he had ruled himself out of Court by saying 
 11,000 instead of $100. Now if a board of aldermen should 
 undertake to come here and revoke a location, from any ca- 
 price it saw fit, it would be beyond its jurisdiction. Its juris- 
 diction is limited to the use of the street. It would be a 
 most preposterous position if it were left in any other 
 way. 
 
 Representative Wilson. You do not understand, do you, 
 that if they should assign as a cause, that public conven- 
 ience required it, no matter what their real intention was,
 
 22 
 
 that their judicial finding that public necessity required it 
 would be conclusive in the case ? 
 
 Mr. Proctor. Their decision would be good for nothing 
 unless, as a matter of fact, they kept within their juris- 
 diction ; and I am ready to say that no board of aldermen 
 can act on a question of this kind without my knowing on 
 what ground they act. The mere general statement will 
 not prevail. And I do not believe there is a board of 
 aldermen in Massachusetts that would be dishonest enough 
 to conceal its reason. Some of them certainly would state 
 the reason ; and the man who stated a reason outside of the 
 statute provisions to-day pertaining to the use of the street 
 would be an honest man, and that statement would anni- 
 hilate the judgment, if it were not within that line as to the 
 use of the street, if it were a mere caprice, or if it were that 
 I should pay f 100 into the city treasury. 
 
 (On motion of Mr. Kittredge, the hearing was then 
 adjourned to 2 p.m.) 
 
 The hearing was resumed at 2.40 p.m.. Senator West 
 presiding. 
 
 Mr. Proctor. On the subject which I was speaking upon, 
 namely, the use of the street, to which the powers of the 
 board of aldermen are confined in their revocations, I wish 
 to say that 2 Pick. 549 shows that public convenience, 
 as to whether a street shall be laid out, totally excludes 
 money. This decision finds that where a street was laid 
 out because some neighbor gave this town so many dollars 
 for doing it, a certiorari brought it up to the Supreme Court, 
 and the Supreme Court said it was illegally laid out because 
 it was laid out on account of money and not on account of 
 the public use of the street. The money element cannot 
 enter into the subject of the use of a street, and the two 
 things must be kept totally distinct. And that illustrates 
 and applies to this subject of revocations as to the use of 
 the street. 
 
 In the case of Mayor v. The Second Avenue Railway, 
 32 N. Y. 261, it was held that an ordinance imposing a 
 license duty upon city cars for revenue purposes only —
 
 23 
 
 that is, money in the treasury — is not an ordinance for 
 police and internal government ; that the imposition of a 
 tax by such corporation upon a railroad company in deroga- 
 tion of its rights — meaning its franchise rights — for pur- 
 poses of revenue merely is unlawful and void. And what 
 I claim is that any bill that might be passed by this Legisla- 
 ture in derogation of the vested rights of these companies, 
 for the sake of filling the treasury merely, would be illegal 
 and void. 
 
 Senator West. Do you mean to say that the West End 
 Railway could take up its tracks and put flat surface wheels 
 upon its cars and haul them about the streets of the city? 
 
 Mr. Proctor. I can draw any kind of a team through the 
 street if I do not obstruct it. A teamster who drives a team 
 through the city does it for hire. There is one broad rule 
 for the use of the street. There is no qualification of that. 
 The only difference between a horse railroad and a teamster 
 who carries for hire is simply the privilege of laying a 
 track. 
 
 Now I come to the main question in the case : if the 
 grant by the charter to the street railway, and the location 
 and its acceptance, and its burying its capital in the street, 
 never to return, amount to a contract or agreement or 
 understanding that the location is to be permanent if the 
 terms are complied with, then the Legislature cannot pass a 
 law to impair that contract, agreement, or understanding. 
 And while I am considering this I want you distinctly to 
 remember that the granting of a right to exist, made in 
 1859, is one thing ; a location made by a board of aldermen, 
 representing the State, yesterday, is another thing. And 
 when I am speaking of a contract right here, I am speaking 
 of a contract right which is made when the location is made, 
 between the corporation, preexisting, on the one part, and 
 the board of aldermen, representing the State, on the other. 
 It is that latter contract which is vested and which cannot 
 be interfered with. In Crease v. Babcock, 23 Pick. 234, 
 Morton, J., says, " That a charter of incorporation is a con- 
 tract l:)etween the government and the corporators is a prop-
 
 24 
 
 osition which seems to be fully supported by the highest 
 judicial authorities. That it is exempt from the ordinary 
 action of legislative power, beyond the reservations, express 
 or implied, contained in it, is equally well supported. In 
 other words, the government can rightfully do nothing 
 inconsistent with the fair meaning of the contract which it 
 has made." Then, also, in Commonwealth v. Essex Com- 
 pany, 13 Gray, 253, Shaw, J., says : — 
 
 " The power of repeal is limited and qualified, and was so 
 considered in the case of Crease v. Babcock, 23 Pick. 334. 
 
 " Does this come within the power of the Legislature to 
 amend or alter? It seems to us that this power must have 
 some limit, though it is difficult to define it. Suppose an 
 authority has been given by law to a railroad corporation to 
 purchase a lot of land for purposes connected with its busi- 
 ness, and they purchased such a lot from a third party, 
 could the Legislature prohibit the company from holding it? 
 If so, in whom should it vest? or could the Legislature 
 direct it to revest in the grantor, or escheat to the public, 
 or how otherwise ? 
 
 "Suppose a manufacturing company incorporated is 
 authorized to erect a dam and flow a tract of meadow, and 
 the owners claim gross damages, which are assessed and 
 paid. Can the Legislature afterwards alter the act of incor- 
 poration so as to give to such meadow owners future annual 
 damages ? " These corporatoi-s have put their money in and 
 have taken what was agreed to be given them for that 
 money. The rights cannot be changed. The Court goes on : 
 "Perhaps from these extreme cases — for extreme cases are 
 allowable to test a legal principle — the rule to be extracted 
 is this : That where, under power in a charter, rights have 
 been acquired and become vested, no amendment or altera- 
 tion of the charter can take away the property or rights 
 which have become vested under a legitimate exercise of 
 the powers granted." And the right that we claim here is 
 this : On the first day of this year, say, our corporation had 
 been existing thirty years. That corporation, so existing, 
 on that day made a contract with the board of aldermen.
 
 25 
 
 representing the State ; that contract provided that if we 
 ■accepted the location as they gave it, subject to the terms 
 which they required, and we put our money into the track 
 and sleepers and run our cars, we should have that right 
 permanently. That is what the contract says. That is what 
 everybody understands it means. And it is a vested right 
 which cannot be disturbed. 
 
 Representative Wihon. Do you mean to say by that, Mr. 
 Proctor, that, where a board of aldermen grants a location, 
 that location cannot be wiped out by a discontinuance of 
 the street? 
 
 Mr. Proctor. Thank you for coming to it. I have a 
 minute here to come to it later, but I will put it in now as 
 long as you have asked it. The Legislature, well knowing 
 that streets would sometimes have to be discontinued where 
 this right has become vested, has taken the precaution to put 
 into the statute under which we take the locations that if a 
 street is to be discontinued we shall not claim damages of 
 the city for doing it. What did the Legislature put that 
 into the statute for if they did not recognize our vested 
 rights and wish to prevent us from getting damages when 
 they did that? That is my answer to his question. 
 
 Representative Kittredge. Refer me to that section, will 
 you? 
 
 Mr. Proctor. It is Public Statutes, chapter 113, section 
 31. 
 
 Representative Kittredge. Did these votes or writings 
 which you define as a contract under these decisions, in the 
 case of your railroad, use the words "permanent location"? 
 
 Mr. Proctor. I do not know that the word "permanent" 
 exists anywhere except in the surrounding circumstances. 
 It is a rule of law that where a grant is made without any 
 limitation it is permanent. 
 
 Representative Kittredge. Then it is u[)on that construc- 
 tion in the case of a grant that you supply the word " per- 
 manent " ? 
 
 Mr. Proctor. Yes. exactly. The Legislature frequently 
 puts in a limitation of fifty or seventy years, but that is very
 
 26 
 
 rare in this Commonwealth, because it is not politic, it is not 
 in the best interests of the community. Stability, honors 
 and confidence between people bring the best result to the 
 community and to everybody. 
 
 Now, gentlemen, I will read you next the most celebrated 
 decision upon this subject within my knowledge, and, I 
 think, the most celebrated in existence. You all remember 
 the Broadway surface road and the boodle aldermen of New 
 York. In consequence of so much boodle, the Legislature 
 passed a law that the charter of that corporation should 
 be ended. And it was ended. And they went right along 
 and passed a law that the franchise which this Broadway 
 Surface Corporation had in its possession should be taken 
 and sold. And the people, by the attorney-general, brought 
 a bill in equity against the receiver of that corporation — 
 for, when a corporation is dead, there has to be a receiver 
 to represent it — to have the Court decide whether that 
 corporation, under the existing circumstances, had any 
 vested rights. And if there ever was a case where a Court 
 would decide that a corporation had not got a vested right, 
 it would be that one. And yet the Court decided that that 
 franchise belonged to the receiver, and that he should take 
 it and sell it and pay the money over to the creditors of the 
 corporation and, when they were paid, to the stockholders. 
 
 The Legislature tried, not only to annihilate the corpora- 
 tion, but to annihilate the right ; and the Court decided that 
 the Legislature was correct in annihilating the existence of 
 the corporation, but that the attempt to annihilate the right 
 which the corporation had was illegal and void, and that the 
 right remained with the receiver, to keep and sell. 
 
 Representative Kittredge. Because it had a vested right ? 
 
 Mr. Proctor. Because it had a vested right. 
 
 Representative Kittredge. Is that the Court of Appeals? 
 
 Mr. Proctor. Yes, sir ; it is 111 N. Y. 1. I have only 
 got a little of it here. It was a very long decision. The 
 Court says : " A review of the judgment brings up for con- 
 sideration propositions very grave in character, not only on 
 account of the extent of the private interests affected, but
 
 • 27 
 
 because their determination will afifect great public questions 
 arising out of the limitations imposed by the Constitution 
 upon the legislative power over the property of corpora- 
 tions lawfully acquired. 
 
 " The statutes, upon which the action is predicated, con- 
 fessedly assume the right and power of the Legislature to 
 wrest from the company its franchises ; to transfer them to 
 other persons, and bestow their value upon the donees of the 
 State. The statutes contemplate the absolute destruction of 
 the property of the corporation, and the loss of its value to 
 the creditors, who have made loans in good faith upon the 
 security of such property, and this action is avowedly pros- 
 ecuted to accomplish the purpose of the legislation. It is, 
 therefore, urgently contended by the attorney-general that 
 none of the franchises of the corporation survived its disso- 
 lution, and that the mortgages previously given thereon, as 
 well as all contracts made with connecting street railroads 
 for the mutual use of their respective roads, fell with the 
 repeal and could not be enforced. 
 
 " If it could be supposed for a moment that this claim was 
 reasonably supported by authority, or maintainable in logic 
 or reason, it would give grave cause for alarm to all holders 
 of corporate securities. 
 
 "■ The contention that securities representing a large part 
 of the world's wealth are beyond the reach of the protection 
 which the Constitution gives to property, and are subject to 
 the arbitrary will of successive Legislatures, to sanction or 
 destroy at their pleasure or discretion, is a proposition so 
 repugnant to reason and justice, as well as the traditions 
 of the Anglo-Saxon race, in respect to the security of rights 
 of property, that there is little reason to suppose that it 
 will ever receive the sanction of the judiciary, and we desire 
 in unqualified terms to express our disapprobation of such a 
 doctrine. Whatever might have been the intention of the 
 Legislature or even of the framers of our Constitution in 
 respect to the effect of the power of repeal reserved in acts 
 of incorporation, upon the property rights of a corporation, 
 such power must still be exercised in subjection to the 
 provisions of the Federal Constitution.
 
 28 
 
 " Considering the power which the State has to terminate 
 the life of corporations organized under its laws, and the 
 authority which its attorney-general has by suit to forfeit 
 its franchises for misuse or abuse, and to regulate and 
 restrain corporations in the exercise of their corporate 
 powers, there is little danger to be apprehended in the 
 future from the overgrowth of power, or the monopolistic 
 tendencies of such organizations ; but whatever that danger 
 may be, it is trivial in comparison with the widespread loss 
 and destruction which would follow a judicial determination, 
 that the property invested in corporate securities was beyond 
 the pale of the protection afforded by the fundamental law. 
 
 "It is not perhaps strange, in the great variety of cases 
 bearing upon the subject, and the manifold aspects in which 
 questions relating to corporate rights and property have been 
 presented to the courts, that dicta, couched in general lan- 
 guage, may be found giving color to the plaintiff's claim ; but 
 we think that there are no reported cases in which the judg- 
 ment of the Court has ever taken the franchises or property 
 of a corporation from its stockholders and creditors, through 
 the exercise of the reserved power of amendment and repeal, 
 or transferred it to other persons or corporations, without 
 provisions made for compensation. 
 
 " Judge Comstock, in Davis v. Mayor, etc., said, ' As the 
 consideration for the constructing the road, the ordinance 
 clearly contemplates that it is to become the private property 
 of the associates. They alone will be entitled to place their 
 cars upon it, and within a maximum limit they can charge 
 what they please for the carriage of passengers. These rights 
 are in effect granted in perpetuity' " (because there is nothing 
 to limit them). 
 
 "In the case of Mayor, etc., v. Second Avenue Railroad 
 Company (32 N. Y. 272), it was said, ' Assuming that the 
 common council had power to make the grant, then its accept- 
 ance by Pearsall and his associates, signified by the execution 
 of the agreement with the conditions annexed thereto, and the 
 duties and obligations^ resulting therefrom, invested the latter 
 with the right of property in the franchise which the common
 
 29 
 
 council could not take away or impair by any subsequent act 
 of its own.' 
 
 " When we consider the generality with which investments 
 have been made in securities based upon corporate franchises 
 throughout the whole country, the numerous laws adopted in 
 the several States providing for their security and enjoyment, 
 and the extent of litigation conducted in the various Courts, 
 State and Federal, in which they have been upheld and en- 
 forced, there is no question but that, in view of legislatures, 
 courts, and the public at large, certain corporate franchises 
 have been uniformly regarded as indestructible by legislative 
 authority, and as constituting property in the highest sense 
 of the term. 
 
 " It is, however, earnestly contended for the State that such 
 a franchise is a mere license or privilege enjoyable during 
 the life of a grantee only " (you will notice that Brother Rich- 
 ardson speaks of it as a license in his opinion) " and revocable 
 at the will of the State." (That is the position taken by the 
 petitioner here: that it is something revocable h^ tlwSta,te») 
 " We believe this proposition to be not only repugoaiit .i^ ., 
 justice and reason, but contrary to thei u^'ifofpi-cqursft' 
 of authority in this country. The laws oi thid>' State iate 
 made such interests taxable, inheritable, alienable; stibject to 
 levy and sale under execution, to condemnation ^tiniifcf^^^il^^i 
 exercise of the right of eminent domain, and invested them 
 with the attributes of property generally." (And I might 
 say here that our Legislature, in the Act of 1889, has expressly 
 provided that the "franchise" of these same corporations 
 should be mortgaged to secure loans, and similar authority 
 has existed before and franchises have been mortgaged.) 
 
 " In Mayor, etc., v. Second Avenue Railroad Company (32 
 N. Y. 261), Judge Brown said: 'The rights of municipal 
 corporations to property in lands and its usual incidents, and 
 to create ferries and railroad franchises, are quite distinct and 
 separate from their duties as legislatures having authority to 
 pass ordinances for the control and government of persons 
 and interests within the city limits. The latter are powers 
 held in trust, as all legislative powers are, to be used and
 
 30 
 
 exercised for the benefit and welfare of the whole community, 
 while the former are property in the ordinary sense, to be 
 acquired and conveyed in the same manner as natural persons 
 acquire and transfer property.' ♦ 
 
 " The same learned judge said in Brooklyn Central Rail- 
 road Company v. Brooklyn City Railroad Company, 32 Barb* 
 364" (I beg you, gentlemen, to notice this, because it is 
 exactly what I said here this morning) : " ' The grant to the 
 City Railroad Company and its acceptance on the conditions 
 annexed with the duties and obligations and large expendi- 
 tures resulting therefrom, would seem, therefore, upon the 
 principles I have endeavored to state, to invest the company 
 with the right of property in the franchise, of which it can- 
 not be deprived without its consent or against its will.' 
 
 "The case of N. O. S. F. & Lake R. R. Co. v. Delamore, 
 114 U. S. 501, is directly in point. There the franchise, as 
 here, was acquired by the corporation from the municipal 
 authorities of a city under general laws authorizing the for- 
 mation of" st-veet railroad corporations. It was held, ' where 
 tb^re ^ud been a judicial sale of railroad property under a 
 pjortgage," aul&ionzed by law, covering its franchises, it is 
 nGw ^ell'setjtled that the franchises necessary to the use and 
 enjoyment (>f' the railroad pass to the purchaser. It follows 
 '^hai if th'e franchises of a railroad corporation, essential to 
 the use of its road, and other tangible property, can by law 
 be mortgaged to secure its debts, the surrender of its prop- 
 erty upon the bankruptcy of the company carries the fran- 
 chises and they may be sold and pass to the purchaser at the 
 bankruptcy sale.' 
 
 " The power to repeal the charter of a corporation cannot, 
 upon any legal principle, include the power to repeal what is- 
 in its nature irrepealable, or to undo what has been lawfully 
 done under power lawfully conferred. Butler v. Palmer, 1 
 Hill, 335. " (So if powo' has been given to lay a track in a 
 street, at large expense, in pursuance of a contract between 
 two parties, the law recognizes the property in the right, and 
 it cannot be destroyed.) 
 
 " Since the decision of the celebrated Trustees Dartmouth
 
 31 
 
 College V. Woodward, 4 Wheat. 518, the doctrine that a 
 grant of corporate powers by the sovereign, to an association 
 of individuals, for public use, constitutes a contract, within 
 the meaning of the Federal Constitution, prohibiting State 
 Legislatures from passing laws impairing its obligations, has, 
 although sometimes criticized, been uniforml}- acquiesced in 
 by the Courts of the several States as the law of the land, 
 and may be regarded as too firmly established to admit of 
 question or dispute. 
 
 "If it is possible to conceive the idea of a repealable 
 grant" (notice this language) "certainly such a grant, 
 accompanied with power to convey or pledge the interest 
 granted, must, on the execution of the power, necessarily 
 preclude a resumption by the grantor of the subject of the 
 grant, or any right of property acquired under it." (Right 
 there, let me say, the moment that we comply with the terms 
 of our contract and put our money into the street and run 
 our cars, our property is as firmly fixed as any real estate we 
 own. The Judge continues) : " An express reservation by 
 the Legislature of power to take away or destroy property 
 lawfully acquired or created would necessarily violate the 
 fundamental law, and it is equally clear that any legislation 
 which authorizes such a result to be accomplished indirectly " 
 (I beg you to notice this) " would be equally ineffectual and 
 void." (The importance of this is that you cannot make a 
 bill here that is of any value — and I want a good one, a 
 square one, if any — unless you keep within the lines of what 
 is established law.) 
 
 " In Commonwealth v. Essex Co., 13 Gray, 239, Justice 
 Shaw said: 'When, under power in a charter, rights have 
 been acquired and become vested, no amendment or altera- 
 tion of the charter can take away the property or rights 
 which have become vested under a legitimate exercise of the 
 powers granted.' " (Now, if they want Massachusetts law, 
 let them take that.) 
 
 " Judge Cooley says " (you will all know who he is, now 
 head of the Inter-State Commerce Railroad Commission) : " ' It 
 cannot be necessary at this day to enter upon a discussion in
 
 32 
 
 denial of the right of the government to take from either 
 individuals or corporations any property which they may 
 rightfully have acquired. In the most arbitrary times such 
 an act was recognized as pure tyranny, and it has been for- 
 bidden in England ever since Magna Charta, and in this 
 country always.' " (And we will be proud of our country. 
 And the day when you disobey that rule you might well be 
 ashamed of your country.) 
 
 Representative Kittredge. If not of ourselves. 
 
 Mr. Proctor. The Court continues : " It is immaterial in 
 what way the property was lawfully acquired, whether by 
 labor in the ordinary avocations of life, by gift or descent, or 
 by making a profitable use of a franchise granted by the 
 State " (and the profitable use of it is to bury our capital in 
 the street and run cars as we agreed to), " it is enough that 
 it has become private property, and it is thus protected by 
 the law of the land. 
 
 "Judge Thompson said in Dash v. Van Vleeck, 7 John. 
 477 : ' It is repugnant to the first principles of justice, and 
 the equal and permanent security of rights, to take by law 
 the property of an individual without his consent and give 
 it to another.' 
 
 "In New York and Oswego Midland Railroad Company 
 V. Van Horn, 57 N. Y. 473, it was held that a legislative 
 intent to violate the Constitution will not be assumed, nor 
 will a law be so construed as to give it a retroactive effect 
 when it is capable of any other construction ; and that if all 
 of its language can be satisfied by giving it prospective 
 operation only that construction will be given to it." (Why, 
 I have heard one of the laymen on this Board here say — I 
 do not now remember who it was — that the day never 
 would come when he would vote to take away private prop- 
 erty without compensation for it. And that layman, in my 
 judgment, knows a great deal more law than a good many 
 that have appeared before this Committee.) 
 
 Representative Kittredge. That is sound law. 
 
 Representative Wilson. You are not alluding to the legal 
 profession on the Committee ?
 
 33 
 
 Mr. Proctor. Oh, no. I said "outside." The Court 
 continues : " In the case of Dash v. Van Vleeck (supra), it 
 was decided that it is a principle of universal jurisprudence 
 that laws, civil and criminal, must be prospective, and can- 
 not have a retroactive effect." (You see that is just what 
 is proposed here, to revoke a grant made a long time 
 ago, for the purpose of granting it over again and getting 
 some money. We might almost cry out, " Venal Rome ! ") 
 The Court says, in continuation : " And in Benton v. Wick- 
 wire, 54 N. y. 229. the Court declared that neither original 
 statutes nor amendments can have any retroactive effect. 
 
 " We, therefore, think this law is obnoxious to the objection, 
 that it assumes to take property without due process of law, 
 and impairs the obligation of contracts." 
 
 I consider this case, so recent and so comprehensive, con- 
 clusive upon this subject. And Massachusetts law is in 
 accord with it. 
 
 I am not going to read this ; I am Only going to call your 
 attention to a case (20 N. J. Equity, QQ^. It is to this 
 effect : " The municipal government has power to discharge 
 the company to whom permission to lay rails in the streets 
 was granted, from the condition contained in the contract, 
 and when once discharged, cannot again make the company 
 subject to the condition." They have granted a right, 
 subject to a condition. They have relieved the company of 
 the burden of the condition of letting another company run 
 over it ; and then they undertake to put it on again, and 
 the Court says, " No ; when you took it off, they had an 
 unconditional grant, and you cannot do anything to inter- 
 fere with their rights in that unconditional grant." 
 
 A case was referred to here (101 U. S. 528) in Mr. 
 Richardson's brief. He referred to it as one of the excep- 
 tions. Now, according to my view, it is no exception at all. 
 It was a question of taxation and had nothing to do with a 
 franchise grant; and, of course, the government have always 
 the right to tax as much as they please, subject to the con- 
 stitutional limitations. But the question of franchise grant 
 is a totally different subject.
 
 34 
 
 Now, if the Committee are not tired, I will read one page 
 from 1 Dillon's Municipal Corporations, section 68, a note 
 (p. 116, 4th ed.) : " The extent and limits of legislative 
 power over corporations and their rights and the rights of 
 their mortgagees and of persons having contracts with the 
 dissolved corporations underwent the most thorough and 
 deliberate consideration of the Court of Appeals of New 
 York in the Broadway Surface Railway case, People v. 
 O'Brien, Receiver, etc., Ill N. Y. 1 (1888)." . . . "The 
 Court held that the franchise of the corporation, under its 
 charter, and the grants from the municipal authorities to lay 
 down tracks and operate its railroad was a property right 
 which survived the dissolution of the corporation ; so were 
 the rights of the corporation under its contract with con- 
 necting railroads, and also the rights of the mortgagees to 
 the continued use of the street in connection with the 
 railroad, under the municipal consent to the use thereof for 
 railway purposes. The special provisions of the repealing 
 act as to winding up the affairs of the dissolved corporation 
 and disposing of and distributing its property were held to 
 be unconstitutional." 
 
 And this Mr. Dillon is one of the most eminent judges in 
 the United States Circuit Court. 
 
 In 2 Gray, 339, where a bridge charter was granted for a 
 bridge with draws thirty feet wide, and the Legislature 
 undertook to require them to be made sixty feet wide after- 
 wards, the Court held that the acceptance of the charter and 
 the construction of the bridge was a contract between the 
 corporation and the government, by the terms of which, as 
 contained in the charter, both parties were equally bound ; 
 and that the Act of 1851 was ineffectual to compel the 
 construction of a draw sixty feet wide. 
 
 Then a word from the case of the Coast Line Railway v. 
 the City of Savannah, 30 Federal Reports, 646. The city of 
 Savannah adopted an ordinance indicating a route for the 
 railroad, with many terms and conditions; and, among 
 others, the following clause : " In the event of the paving 
 by the city of the whole or any portion of the streets used
 
 35 
 
 by said railroad company, the portion of the track between 
 the rails shall be paved and kept in good order and repair by 
 the company at its own expense." And because the Legis- 
 lature afterwards passed an Act authorizing the City of 
 Savannah to require the railroad to pave not only between 
 its tracks but three feet on each side, this Act to increase 
 the width was held to be unconstitutional. 
 
 The fact is, we in Massachusetts have been so in the habit 
 of doing everything about the street that the good public 
 wanted to have us, that we have never raised any question 
 of law, and we never want to. We want to live in peace 
 with the people we have to deal with. 
 
 Representative Kittredge. You mean, if it takes the law 
 to compel you to do it ? 
 
 Mr. Proctor. Unless somebody comes up to the Legisla- 
 ture and wants to bleed us to death, and then we have to 
 give them the law. This Act that I have just referred to 
 was held to be unconstitutional by the United States Court, 
 as impairing the obligation of contracts. The Court said 
 that a reservation to the State of a right to withdraw the 
 franchise of a company affects only matters derived from 
 its act of incorporation : and the State cannot annihilate 
 contracts made by the company. 
 
 Jtepresentative Kittredye. Then, Mr. Proctor, as I under- 
 stand the legal position which you lay down as a guide for 
 this Committee, it is this, or in effect, this : that it would be 
 unnecessary for the Legislature to make any provision for 
 any greater permanency for the existing charters of the 
 horse railroads that you represent? 
 
 Mr. Proctor. I think it would be unnecessary to have 
 any farther legislation to secui-e our rights. But so many 
 wise young men have stated to the public in this room and 
 elsewhere that we have not vested rights, and the question 
 is so far raised already in the p' l)lic mind that it has affected 
 stocks and affected capital more or less already, and from 
 the fact that that sort of mischief is done (although the 
 legal position is all right) — from the fact that the poison has 
 gone forth into the public mind which impairs and greatly
 
 36 
 
 injures this property — if you make any legislation at all, 
 I shall ask you, in amendments which I have prepared to 
 the city bill, to put in such phrases as will leave no question 
 for the period of time named in the bill. I think it is no 
 more than just and fair that when a wrong, or what I call a 
 wrong, has been done, it should be corrected. And, there- 
 fore, I shall' ask for certain amendments in any bill that you 
 may make, if you make anj'-, which will put at an end that 
 question in the public mind, both as it affects capital and 
 other interests. 
 
 Representative Kittredge. Then, Mr. Proctor, on your 
 view of the law, it would be a dangerous admission for the 
 West End Railroad Company or the Boston & Lynn Rail- 
 road Company to accept any new charter or provision from 
 the Legislature looking to any greater permanency in their 
 charters or locations ? 
 
 Mr. Proctor. Not the slightest. The best title I could 
 have to any piece of land in Boston is not so good but that 
 if any neighbor comes and says he has got any kind of a 
 claim on it — although there is none at all — I should be 
 exceedingly glad to get a release from him. I believe in 
 quieting titles when there is no necessity for anything dif- 
 ferent ; and I believe the unquietness that has been created 
 should be corrected. 
 
 Mr. Harding cited two cases, 96 U. S. 499 and the 15th 
 Wallace, 454, neither of which cases has anything to do 
 with a franchise right in a street railway and only relates to 
 a question of taxes, and that section was in the original 
 charter which gave them their existence, and the question 
 came up, whether there was a right of repeal, the same as 
 there is in this State, and they did repeal the section or 
 they decided that they had a right to. But we do not claim 
 that in our original charter which gave us our existence the 
 Legislature has not the power to repeal it. We are willing 
 you should destroy us, but when you touch a contract that 
 we have made after we came into existence, with another 
 party. Commonwealth, mortgagee, lessee, contractee of any 
 kind, then we say. Do not dare to lay your hand on that
 
 37 
 
 contract, for it is a contract right ; it is property as much as 
 a horse bought and paid for. 
 
 I will read from these decisions that he cites. "Rights 
 acquired by third parties and which have become vested 
 under the charter in the legitimate exercise of its power 
 stand upon a different footing " ; and then again, in this, 
 " Rights and interests acquired by the company not con- 
 stituting a part of the contract of incorporation " — just 
 like all rights that have nothing to do with tlie acts of 
 incorporations, — rights acquired subsequently, — " stand 
 upon a different footing," but no such rights or interests 
 are involved in those cases ; therefore these decisions have 
 nothing to do with this case whatever. 
 
 I pass on to the next point. My next point is that the 
 bills proposed here — except the mayor's — by either im- 
 pliedly giving power to revoke locations, or by impliedly 
 saying that such power exists, do attempt to impair that 
 contract by giving power to require money to be paid into 
 the city treasury for a location which is only to take the 
 place of an old location, the terms of which have been fully 
 complied with by its possessor. 
 
 Under that I shall allude to the various bills very briefly. 
 The Maiden bill has the credit of being frank. It states 
 right out what it means. It has all the disadvantages which 
 I spoke of in opening — the disadvantage of interfering 
 with vested rights and the disadvantage of having no 
 appeal provided for. The city bill of last year which has 
 been presented here belongs in the same category and needs 
 no further comment. I think all I have said applies to it 
 and shows that it is one that ought not to be reported. 
 
 Now, gentlemen, I must hasten on. Germane to this 
 same question of the vested interest Mr. Richardson says 
 what is given for a franchise right is no tax, but a pay- 
 ment,— just what I told you this morning, and I exactly 
 agree with him. Whatever is given or agreed to be done, 
 such as building the track in the street, at the time the loca- 
 tion is made, is the consideration for the grant. It is a pay- 
 ment at that time, and it is not a tax. The tax comes in
 
 38 
 
 later. The tax comes in in such provisions as he has pro- 
 vided in his opinion. He speaks of three licenses and 
 rather implies that our franchise right is a license, but he 
 will not differ with me in the law that a license granted 
 may be revocable but a license granted and acted upon, with 
 money spent on the strength of it, becomes a grant. It is 
 no longer revocable. And then there is a license coupled 
 with an interest that cannot be revoked by the grantor, but 
 a license that is acted upon and a consideration paid and 
 work done, the contract carried out — that license becomes 
 a grant. Therefore it is totally immaterial whether you 
 call the thing a grant or a license, but it has been sought 
 to diminish the size of the riglit by calling it a license, 
 but it does not amount to anything ; whichever way you 
 look at it, license and grant is the same thing if it is acted 
 upon. 
 
 Another confusion that has crept in here a great many 
 times : The word " city " means several things.. One mean- 
 ing is territory, another meaning is the people in the terri- 
 tory, another meaning is the municipal corporation, and that 
 municipal corporation has two features in it. One is the 
 owner of property — it owns the city hall ; another is a legis- 
 lative body ; and the word " city " is used in these four 
 different senses, and sometimes they are all confused in the 
 bills. 
 
 Now, gentlemen, I want to come to a matter on those 
 vested rights that is pretty important. I say it is conclu- 
 sive, and so will you. Ai^sume, if you please, that every 
 street railroad in Massachusetts has made a mortgage and 
 has mortgaged its franchise to somebody and got the money 
 on it. Nobody doubts that that is a contract. The decision I 
 have just read covers it exactly. That is a contract between 
 the corporation and a third party, and even Mr. Harding's 
 decision expressly provides for that. Everybody who knows 
 any law knows that that is a separate contract and has no- 
 thing to do with the government, and the Legislature has 
 authorized these street railways to make the mortgages ; 
 they have sanctioned the mortgages ; and, what is more than
 
 39 
 
 that, gentlemen, let me read you what the Legislature says : 
 " Said bonds shall be secured by a mortgage of a part or the 
 whole of the railway property of such company and its 
 equipments, franchise, and other property, real and per- 
 sonal." And do you suppose the Legislature is going to, or 
 could, authorize its franchise to be mortgaged to a money- 
 lender and as soon as thej'^ have got the money turn round 
 and annihilate it? It is too absurd and preposterous to 
 think of for a moment. When a horse railroad has mort- 
 gaged its franchise with the assent of the Legislature, that 
 mortgage stands, and the mortgagee stands with control 
 over that franchise right beyond which the power of the 
 Legislature cannot go. I say you cannot proceed against 
 the vested right as against the stockholder, but as against 
 the mortgagees to whom the stockholders have sold the prop- 
 erty with the express approbation of the Legislature for 
 value received ; they have got a title there is no power on 
 Beacon Hill can disturb. 
 
 But, gentlemen, that is not all. Another subject : A 
 large part of the rights in this State are held by lessees, who 
 stand in a similar position to mortgagees, and those lessees 
 got their title to this property under that authority, special 
 authority and direction of the Legislature, of the Common- 
 wealth. We own all our railroad from Revere to Vine 
 Street in Charlestown by a lease, and that lease is made with 
 the special authority of the Legislature, the Commonwealth, 
 and we hold that title the same as the mortgagees hold 
 their title. It has been sold to us, and we have a right 
 to it. 
 
 I come to the next question, and that is that we own a 
 vested right in five miles over the Salem turnpike, from Vine 
 Street in Charlestown to Swampscott, that we bought of the 
 Salem turnpike and paid for, and we own it as any man 
 owns a right that he has bought and paid for. 
 
 Representative Q^dncy. Bought of the Salem turnpike 
 corporation ? 
 
 Mr. Proctor. Yes ; and the Legislature in our charter 
 specially authorized us to buy it, and we bought it and paid
 
 40 
 
 for it, and we own it, and no man will dare to question that 
 we own that as much as any man owns his house. 
 
 I will read this decision in Lynn & Boston Railroad Com- 
 pany V. Lowell Railroad Corporation, 114 Mass. 92. The 
 Court says: "The plaintiffs rely upon the proviso intro- 
 duced by the last-named act, which is as follows : ' Provided 
 that said highway shall be subject to all the leasehold and 
 chartered rights and liabilities of the Lynn & Boston and 
 the Boston & Chelsea railroad corporations.' " 
 
 We claimed that we had such a right in the street that 
 the Boston & Lowell Railroad could not get across Chelsea 
 Bridge, and what we were driving at was to prevent their 
 crossing there, but the Court said we could not, but we 
 bought and paid for a concurrent right with the public in 
 that street, and we own it as much as any man owns his 
 house, and there is no question about that; and you will 
 see the importance of this in another connection where 
 somebody — Brother Harding, I think it is — wants to make 
 a charge based on the gross income. Well, I should like to 
 see him make a charge on our income on the Salem turnpike 
 right. Whatever that five miles earns is ours, and there is 
 no power on earth can interfere with it ; but I cannot tell 
 how much of our earnings comes from that part of our road, 
 nor can anybody else, and if you are going to base — I do 
 not suppose you will, but I want you to see the folly of it — 
 if you are going to base any bill on the gross earnings, you 
 will have hard work to have it go through, and I think it 
 would be unconstitutional. 
 
 Now these gentlemen come up here and say, '' More 
 money, more money," and they say, " You have got no contract, 
 and we will have more money because you have no contract ; " 
 and when we tell them we will discontinue running through 
 the streets they say, " There is a contract. You have got to 
 run your cars." If we should stop running our cars, there 
 would be such a howl among the people that we could not 
 live. 
 
 Representative Kittredge. Why would not that be a good 
 way to test this whole question ?
 
 41 
 
 Mr. Proctor. We should not dare to. No ; in the din 
 that would be raised I would lose what little power of hear- 
 ing I have left now, and that is none too much. 
 
 Now, gentlemen, I come to the second point. I was very 
 glad to hear the mayor say that the board of aldermen of 
 this year never would be guilty of revoking a right for the 
 sake of getting some money. I want you all to remember 
 it. I do not believe any board of aldermen would do it. 
 
 Now I was saying to you that I had threshed this whole 
 subject over for ten years, but it never has come up with the 
 poison quite so virulent as it is this year. Last year we 
 brought up the taxpayers before the Committee, and we 
 brought up a strong petition from the Laborers' League and 
 a petition from the employees of our road, and we brought 
 these people all up here, and I should have brought them 
 before this Committee only we never would have got through 
 if we brought them this year ; but last year they were here, 
 and every one of them took the ground that they did not 
 want the bill, and the mayor of the city of Lynn was really 
 ashamed of it before he got through. That was a special 
 provision for the city of Lynn alone. 
 
 Now I will hasten on to what is the second point in this 
 brief. Irrespective of what the law is, all grants and loca- 
 tions and the acceptance of them, and burying capital in 
 the street, have been made upon the understanding that the 
 location was permanent, the terms thereof being complied 
 with. It is not right for the Commonwealth to induce her 
 children to pay their money for her grants by burying the 
 same in the street, when she knew they supposed that the 
 grant was permanent ; and then the next year, or at any time, 
 say to them, " I shall withdraw the grant unless you pay 
 more money to some city treasury." This proposition is not 
 honorable, and no State can afford to entertain it. 
 
 My second proposition, then, is that, whatever the law may 
 be, no Legislature, under the circumstances existing here, 
 with which you are all acquainted, can afford to put 
 itself in the position of committing a breach of faith. 
 As to new locations it is totally different. As to old ones
 
 42 
 
 we have done things upon an understanding and an agree- 
 ment, and the Legislature cannot afford to go back on it, as 
 the phrase is. If they wish to change their policy and in 
 the future make any change that they please, they have a 
 legal right to do it, and I make no complaint of that. I shall 
 hereafter, however, come to the question of public policy 
 even upon that. The history of our road, in brief, is that it 
 began in 1859 and it did not pay a dividend for years, unless 
 it was the first year, so that the men who built it could 
 shoulder the stock off on to somebody else, and for twenty 
 years thereafter it paid no dividend, and only the last third 
 of the time has it paid any. We earned some money there 
 during that twenty years and I have been working there for 
 the public, nothing else, for twenty-five years until recently, 
 and what we might have declared in a dividend we laid up. 
 Where ? Buried it where the public would get the benefit 
 of it, because we expected if we built up the road and 
 suited the people we would make something out of it. 
 Self-interest is the mainspring of human action, but at the 
 same time, when you come to horse-railroading, the only 
 self-interest you can have is such as will lead you to please 
 your patrons, and we have, instead of putting money in our 
 pockets, which we have a right to, we have put it into the 
 plant and the public have got the benefit of it, and we have 
 been laying up treasures where we supposed it might do us 
 some good when our hair is gray, and the blood runs more 
 slowly, and now that time has come, some people think it 
 honorable to come and take it from us, and they have the 
 audacity to come here to this Legislature and to ask the 
 power of the Legislature to financially destroy us before the 
 altar in the very temple of justice. It is wrong, and every 
 man knows it as soon as he thinks of it, to destroy a man's 
 treasure that he has laid up for his life without any more 
 warrant for it than is shown here. I, for one, pity any man 
 who will pursue such a course, and I hope that light may 
 fall upon all such, that they may see justice truly and fairly. 
 Now what we want is to have the old Commonwealth 
 treat all her children honorably. She always has done it.
 
 43 
 
 and I do not believe there is a man on this Committee who 
 will pass any vote to have anything else done with these 
 €ompanies that are serving the public constantly. What we 
 want is stability, honor, confidence. 
 
 The day will come when every one of the cities coming 
 here will be ashamed of doing the act that they have done. 
 It is very easy when they have manufactured a sentiment 
 and a current that runs that way, but you wait until the 
 employees begin to be pinched and you wait until the pas- 
 sengers begin to be pinched and they, begin to feel the wrong 
 of this, and you will find the current running the other way 
 quite as hard and a good deal harder than it is now this way, 
 and you will see political crafts that are trying to catch the 
 wind dashed on the rocks. 
 
 I come now to the third division of my paper. It is 
 against public policy to require any more burdensome terms, 
 when locations (old or new) are granted to street railway 
 companies. They already pay as much and bear as heavy 
 burdens for what they get as such companies, on an average, 
 pay and bear in other States for what they get; and very 
 few, if any, can afford to bear any greater burdens. 
 
 It may be legal to change this policy which has been 
 established and running for forty years, to make no money 
 charge when the location is granted but only place burdens 
 upon them. This has been the uniform, established custom 
 in this State and is supported by London, which has the 
 wisdom of the world, and has done it for a long time and 
 ought to know what public interest requires, but I say it is 
 not wise to change it and I would draw the line just where 
 it always has been drawn. Give the cities and towns what- 
 ever power you have a mind to to regulate the use of the 
 streets by the railroads in conjunction and concurrence with 
 other uses. Make them pay all that they fairly can or ought 
 to pay in fair dealing with this sort of a public corpora- 
 tion. Make them pay what is provided in the mayor's bill, 
 if you choose, because that leaves no chance for any scan- 
 dals or troubles ; but do not cross that line. Do not let any 
 governmental power, any political power, have the handling
 
 44 
 
 of anything pertaining to money. It is a maxim, which you 
 all well know, that that government governs best that gov- 
 erns least and keeps the peace and preserves property, and, 
 in accordance with that maxim, do not give the city any- 
 thing more to do with money, especially in the way sug- 
 gested here, than you can help. There are a thousand 
 wa3^s in which you can burden these poor corporations, but 
 that would be unwise, although it would be a great deal 
 more in accordance with the established policy of this Com- 
 monwealth than to proceed in this kind of way, for I think 
 this comes the nearest to legalized robbery, in my point of 
 view, of anything that I ever heard of ; but if you want to 
 place any more burden upon them, do it within the line 
 which has been heretofore followed, in the various ways 
 which the statute suggests and already provides — but I 
 tell you they cannot afford to do any more, not even the 
 West End. 
 
 There is a six per cent, waste every year, there is every now 
 and then an epizootic, which is sufiBcient to kill a dividend ; 
 there are your damages ; and, by the way, I have touched on 
 a subject that is very fruitful. These damage cases are very 
 expensive. There is not a case where a woman gets her 
 little finger injured but runners are out after her to get her 
 case for certain offices. 
 
 Then there is snow — very heavy this year; then there is 
 the grain crop — oats 64 cents instead of 33. 
 
 Mepresentative Kittredge. Sixty-nine to-day. 
 
 Mr. Proctor. Higher and higher. I simply know it 
 drains the last dollar that a horse railroad takes in. Then 
 there are hard times every now and then, when there is no 
 money to pay for riding; then the fares are reduced to 
 the very lowest notch, because it is fashionable to have it 
 a nickel. Then there are long lines through very sparsely 
 settled districts. 
 
 There is no earthly reason for limiting it. These cor- 
 porations are entirely in the hands of the public, and you 
 can get out of them' all you want without crushing them 
 in the dust. What is the consequence of putting on any
 
 45 
 
 limitation? You have got to go to work and have a sinking 
 fund, and sinking funds are a curse ; someboby will steal 
 them ; let a man own his house, not let somebody else 
 own it. It simplifies the process. Give us honest, square 
 dealing. 
 
 Bepresentative Quincy. You are entirely satisfied with the 
 legal status of locations at present ? 
 
 Mr. Proctor. Yes, sir ; I am satisfied, with this exception. 
 There has been such a misstatement of the facts which I 
 mentioned this morning, — to wit, that we do not pay any- 
 thing, which is not true ; that we pay less than other people, 
 which is not true when you take everything into considera- 
 tion ; and that we are able to pay more, which is not true, 
 — while such things have gone forth into this community 
 through pamphlets or something else and poisoned the pub- 
 lic ear, and when reports have gone forth since this hearing 
 commenced, which have reached the capitalist's ear, and the 
 capitalist is made cautious so that he will not invest in this 
 kind of stocks, a wrong has been committed, and this Com- 
 mittee ought to see, in all fairness (if they think it is right 
 to make any bill), they ought to see that this bill corrects all 
 this wrong, and shows to the public that that right is vested 
 and secure ; and I have made an amendment which I shall 
 submit to you, providing for permanence, so that this wrong 
 will be righted. If these additional burdens are put on 
 under this new policy, then wages, fares, service, extension, 
 all improvements must change. 
 
 This new policy says it is going to put more money into 
 the treasury of the city of Boston, but it ought not to come 
 from the horse railroads. It ought to come from the tax- 
 payers. The taxpayers are all rich, or most of them are, 
 and the passengers of the horse railroads are poor, but the 
 money that goes into the city treasury, as I am informed, 
 is not used in the best manner. I will say, and I want you 
 all to bear this in mind, because it bears on the question of 
 policy, that every dollar that you take off of fares the pas- 
 senger gets a hundred cents for. Every dollar that goes 
 into the city treasury — how much of it does the public
 
 46 
 
 get ? Each one can decide for himself. Now I say, Pre- 
 serve the present policy, which has been to reduce fares as 
 low as possible, give the best service, and then every benefit 
 which comes from the horse railroad remains right where it 
 ought to, in the passengers' pocket and comfort. Change 
 the whole policy and cramp the passengers with miserable 
 service, like Baltimore, put the money into the treasury of 
 the city, and you injure the community. 
 
 I ask you in great earnestness that you will draw the line 
 where it always has been. Give the city the control it has 
 had, but do not give it any money ; let it get that .from the 
 taxpayers. That is best for all ; and do not cross that line 
 if you wish to avoid troubles. 
 
 Now I say the true policy of the State is to grant a 
 permanent right ; capital buried in the street (for the right 
 to place the iron and the sleepers takes the place of the 
 capital) ; the franchise tax, low fares, best service, large 
 extensions, — and, by the way, I want to say one word about 
 that subject of extensions in addition to what Mr. Whitney 
 said. I have owned a large lot of land out in the country as 
 trustee, and I have sold it and I know about the benefit of 
 railroads being extended out and mechanics living out there. 
 These men buy these small lots and build on the summits- 
 of the hills, on the sunny slopes and in the valleys where 
 they can listen to the music of the brooks and the songs of 
 the birds, and when they do that, you have got healthy 
 citizens. You compress them into a small space in the 
 city and they are like apples in a barrel and they will 
 rot. Those are the two extremes. Which policy will you 
 adopt? I have had occasion in the Mechanics' Institute 
 to address nearly a thousand doctors of Massachusetts, and 
 I said to them, as I say to you, that the race is depreciating 
 and every aurist and dentist and pliysician in the land 
 will tell you that the constitution of some Americans is 
 depreciating. 
 
 Greece was the most refined country that tlie world ever 
 saw, in culture, finish, manners, and all that sort of thing, 
 and while this was her condition luxury came in and her
 
 47 
 
 blood was poisoned ; and Rome went the same way. Rome 
 conquered Greece, but Greece conquered Rome by her 
 luxurious habits and Rome went down with all her gladia- 
 torial power, and it is the same thing that is going on to- 
 day, and there is one man on this Committee that I know 
 knows it. Teeth are becoming like chalk and the ears 
 cannot hear, and I am one of the unfortunates myself, and 
 the people have less vigor except in some of the new races 
 that have come in, who have not got Americanized yet, and 
 whose nervous temperament has not been impaired, and I 
 have the pleasure of excepting some of them from the class 
 I have described. 
 
 Now, I say, if you want to give health to old Massa- 
 chusetts and preserve the pristine vigor which characterized 
 her in the days of the Puritan, extend out into the country 
 as far as you can, and grant every facility that you can, 
 instead of cutting off these arms and crowding the people 
 into the centre of the cities, that they may decay still faster 
 than they are decaying now. I shall leave to you the policy, 
 now, as to the permanent rights, capital buried, franchise 
 tax, low fares, best service, large extensions, care of streets, 
 removing snow. All those things are now done by the 
 corporations, and they are all that they can afford to do, 
 and so I say that I know from twenty-five years' experience 
 that what I am saying is the truth. 
 
 Now, what do these gentlemen want here ? They want a 
 new policy; they want more consideration paid for the 
 locations. We cannot stand it. They want more taxes, 
 and they want a limited tenure. 
 
 All this movement you have before you here tends to city 
 ownership of the whole business. I have not the slightest 
 objection to having the cities or towns through which we 
 pass take our railroads at a fair valuation, and I have no- 
 thing more to do with it. I do not want this eternal fuss 
 and squabbling. 
 
 Hepresentative Rosnosky. Do you think it would be in 
 the public interest to have that done? 
 
 Mr. Proctor. That is just what I was coming to. This is
 
 48 
 
 the entering wedge leading to it. The efforts of this set 
 of persons here is going to end in the cities running all the 
 horse railroads, and when that comes then God save the 
 Commonwealth of Massachusetts ! A greater abomination 
 could not be conceived of. 
 
 Representative Quincy. Horse-railroad people would be 
 willing to sell out to the city? 
 
 Mr. Proctor. Horse-railroad people ^re ready to sell out 
 at any time. They have had about enough of this, as far as 
 I know anything about them. We are ready to sell ours 
 out. If the cities want them, they can have them for a fair 
 valuation by experts. These eternal attacks — it is attacks 
 by damage cases, and atttacks by people who say you have 
 got no rights anywhere, and attacks by this and attacks by 
 that; and if we are going to have those kinds of attacks, 
 and people are going to ask the old Commonwealth, the 
 mother of us all, to destroy us, I should rather die than to 
 live to see such a result — to see that the Commonwealth's 
 honor is to be degraded so low. I hope not to live to see 
 that day. 
 
 (On motion, the hearing was adjourned to Monday, April 
 6, at 10 A.M.) 
 
 The Chairman. The continued hearing upon the subject 
 of street franchises is now in order. Mr. Proctor will pro- 
 ceed with his argument. 
 
 Mr. Proctor. Mr. Chairman and Gentlemen, — So far we 
 have had a plain talk, a mutual talk, searching for what is 
 truth, to find out what is best for all concerned, simply that 
 and nothing more. I have shown you how the petitioners' 
 move is against the law, is against good faith, is against pub- 
 lic policy for forty years, against health and harmony, and I 
 have suggested the enormity of the city being made its own 
 judge without limit of how much money it shall take from 
 one corporation treasury to put into another. 
 
 In answer to Mr. Kittredge's question the other day which 
 was passed, as to getting more money out of the corporation 
 for the city by enlarging the street repairs, in my judgment 
 they are paying all that is now reasonable. Their property
 
 49 
 
 is taxed and that goes towards paying for street repairs, and 
 then they take care of a large part of the street, and that is 
 more than is reasonable already, and you cannot get any 
 more. If you undertake to get any more under the guise of 
 repairs of the streets, in ray judgment it will be illegal 
 because it will be an indirect attempt to get money which 
 the Court of Appeals decision which I read here said was 
 illegal and void. These indirect methods are just as bad as 
 the direct ones, and to attempt to put a larger charge than 
 what is reasonable on the repairs of streets for the use that 
 they make of them would be one of those indirect methods 
 which would be as void as the direct. 
 
 Brother Bailey asked me Friday, gentlemen, if I would 
 comment on the Marginal Railroad. Chief Justice Gray 
 says, " Upon the absolute repeal of a charter by the Legisla- 
 ture, acting within the limits of its constitutional authority, 
 the corporation ceases to exist, and no judgment can after- 
 wards be rendered against it in an action at law. But such 
 repeal does not impair the obligation of contracts made by 
 the corporation with other parties during its existence, or 
 prevent its creditors or stockholders from asserting their 
 rights against its property in a court of chancery, in accord- 
 ance with the reasonable regulations of the Legislature, or 
 with the general principles and practice in equity." 
 
 This cautious opinion of the Court shows you, Mr. Chair- 
 man, that the law stands the same as to creditors and stock- 
 holders that it does as to mortgages when you annihilate the 
 charter of a corporation. The receiver is bound to take the 
 franchise right, the contract rights, whatever they are, and 
 with whomsoever made, and dispose of them according to 
 the law, and give the proceeds of the sale to the stock- 
 holders, to the creditors and the mortgagees ; and there is 
 not a lawyer in Boston that will raise any question about a 
 mortgagee's right to the franchise which has been mortgaged 
 to it with the consent of the Legislature. In short, the case 
 to which I have just referred exactly supports the doctrine 
 which I stated Friday, that the contract rights of the corpo- 
 ration are preserved notwithstanding the corporation's exist-
 
 60 
 
 ence is ended, and that by a receivership the receiver can 
 sell its franchise rights and dispose of the proceeds to the 
 stockholders, creditors, mortgagees, and that they all stand 
 on the same legal basis as to those contract rights, whether 
 the contract is with third parties or is a contract between 
 the corporation and the Commonwealth. And I want you 
 to remember, what I forgot to say Friday, that all the loca- 
 tions of my road have been confirmed by the Legislature by 
 distinct act, chapter 152 of the Acts of 1881, which shows 
 you what the Legislature's opinion is as well as what is the 
 Court's opinion, that this contract is made by the Legislature. 
 Now, gentlemen, I want to ask your pardon for touching 
 upon that subject of good faith, because it seems to me 
 impossible that this Legislature, the mother of these crea- 
 tures created by it, could ever exercise any bad faith against 
 them, and my excuse is simply that these men who have 
 come here advocating these positions have forced me to 
 bring this question to the front ; and, gentlemen, when one 
 of your Committee asks me if a board of aldermen could 
 not, by concealing its reason for its action, get a judgment 
 of revocation against a corporation and so hold it, implying 
 that a board of aldermen might do such a thing, and thereby 
 get a grip that it ought not to get, and encourage a practice 
 that would be almost too sharp for the Police Coui't of Bos- 
 ton, I say, when such a thing is suggested here, is it not 
 about time for you to look out for the honor of the Com- 
 monwealth upon the question of whether you will leave the 
 matter to any board of aldermen who might do such a thing ? 
 I do not believe they would do it, and when it is suggested 
 by high authority as a way in which indirectly they can get 
 a bleeding process going, it is time for me to call your atten- 
 tion to the subject. This attempt to feel all around every- 
 where to find a place where you can tap a corporation as 
 you would a sugar tree, to get the sap out of it — as the 
 city looks around at all these corporations to see how it can 
 get money out of them, reminds me of the advice that a 
 father gave his son who was going out into the world, " Get 
 money ! Get it honestly, if you can, but get it."
 
 51 
 
 Now, gentlemen, we have attacks on the right hand and 
 attacks on the left, attacks in front and attacks in the rear, 
 and four petitions to Committees attacking us all at one 
 time in this Legislature. What I ask of you, gentlemen, is, 
 whatever you do, put a stop to this attacking which depre- 
 ciates property, and depreciates property that is invested 
 where it is doing more good to the people of the Common- 
 wealth than any other property in the land, and you know 
 it and the people know it. I have in my mind a street 
 railway corporation that was organized only last year and 
 it has put $100,000 in the streets in laying its track, and 
 if the position of these revolutionists is correct, that prop- 
 erty is not worth a dollar ; it won't pay for taking up, and 
 the rest of that property cannot pay their debts. That 
 illustrates to you the wrongness of this position, a corpo- 
 ration not in existence a year, and its property gone out 
 of sight ; make that right permanent mth what they have 
 buried in the street, and their capital is back and alive. 
 
 The Chairman. Mr. Proctor, do you state to us as an 
 expert or upon figures that the tracks and roadbed con- 
 nections of a street railway after they have been laid new 
 will not pay for taking up ? 
 
 Mr. Proctor. After it has been used any considerable 
 time. I would not say that exactly new when taken right 
 up again, but old iron will sell in the market like an old 
 bonnet. The sleepers are certainly good for nothing when 
 down, and of course the longer they have been down the 
 more absolutely worthless they are, but the expense of 
 taking up, the cost of labor, is very much in putting the 
 street back in repair. If you sold the second-hand railroad 
 iron, it would not bring enough, as I have been told by 
 experts and judging from my experience of twenty-five 
 years. 
 
 The Chaii-man. What would be the fact in the case of 
 a paved street, if you had to repair the pavement in addition 
 to the ordinary macadamized road. 
 
 Mr. Proctor. It would only make it worse. 
 
 The Chairman. Would it leave anything for the railway ?
 
 52 
 
 Mr. Proctor. No, sir ; I do not think it will leave any- 
 thing. I give you that illustration to show you the utter 
 absurdity of the position ; that is to say, the proposition 
 which my friend George Fred Williams stated, that you 
 conld have plenty of capital to put in the street if you 
 should adopt his principle. Why,, it is too absurd to think 
 of it. 
 
 Again, gentlemen, this is a case worse than Grangerism in 
 the West ; but I want to call your attention to Nebraska, 
 where they have passed a law cutting down the freight 
 twenty per cent., and it has raised such a howl among the 
 employees of steam railroads and among the people of the 
 State who are dependent upon steam railroads, and they 
 have sent so many petitions to the governor that the 
 governor has declined to sign the bill, and I understand has 
 vetoed it. I merely state to you that that is just what will 
 take place here. 
 
 Follow this course that is marked out here for you, and 
 you will put on the horse railways the burden of enlighten- 
 ing their employees and their passengers, in just the way 
 that you have been informed on the subject here so that 
 they will understand it, and they will take out of the public 
 mind the poison that has been put in it by Document No. 
 144. The railroads have got to overcome the wrong which 
 has been done by wrong statements or half-statements, and 
 we have got to spend an immense amount of money to cor- 
 rect that and educate the people on the subject, or else you 
 have got to put into some bill here something that will 
 give us stability and confidence. 
 
 Now, gentlemen, I want to say that you cannot compare 
 New York and Massachusetts in this matter. I have 
 referred to it before, but it is intensely important; it 
 touches the hinge of this whole matter. Short lines through 
 thickly settled portions of a city earn say ilOO ; $50 goes to 
 expense, 20 per cent, to dividends, and 30 to the passen- 
 gers or .the city. In New York it goes to the city. In 
 Massachusetts with long lines sparsely settled, you take in a 
 hundred dollai-s, and the expense of running the road would
 
 53 
 
 be ninety, and the other ten might pay two or three per 
 cent, dividends. Another difference is this : more than half 
 of our companies have nothing left for anybody after paying 
 expenses, and there is nothing left for the stockholders' 
 dividends or the city or the passengers. Now, just bear that 
 little illustration in mind, and do not forget it. The policy 
 here has been permanent grant, capital buried, franchise tax, 
 low fares, best service, large extensions, health and harmony, 
 care of the street, damages paid, snow removed, and such 
 things, and that takes all there is; and when gentlemen 
 come here and flippantly tell you to give the city a chance 
 to bleed them, what is it coming from ? Wliere is the bleed- 
 ing coming from, with nothing in the treasury? And in 
 companies that barely pay a dividend (and that covers all 
 the rest), when you have your exj)enses taken out and your 
 small dividend, there is nothing left, and where is the bleed- 
 ing coming from? You know, and everybody knows, that 
 the expenses must be paid first, and a reasonable dividend 
 comes next : and it is idle to open the way for the city to 
 take anything where there is nothing to take. 
 
 Gentlemen, I just now succinctly stated to you the old 
 policy. I come now to say the new policy is the same as 
 the old, with two elements added, short lines and something 
 for the city (although the petitioners only name one, to wit, 
 to pay the city something), and I have shown you there is 
 nothing from which to pay them. If you want to make it 
 like New York or any of the other large cities where some- 
 thing is paid, you have got to add the second element, to 
 wit, bring all the out-of-town people into the centre, and 
 shorten the lines and make them two miles instead of six 
 miles long. By doing that, you will wipe out eighteen 
 millions of property in the companies. There is no possi- 
 bility of its being done and it is too absurd to be mentioned. 
 And you will be confronted with the proposition of moving 
 all the country houses into the city, which the people will 
 not allow anybody to do, for they are the sovereigns ; so that 
 the second element in making Boston like New York, or like 
 any place where there is money paid to the city, cannot be
 
 54 
 
 brought about ; it is physically impossible, and it would be 
 simply wickedness in the extreme to put in one of the 
 elements without the other, and it would be as physically 
 impossible to comply with the one element of paying money 
 into the city unless you bring in the other. If you want to 
 have things alike all over the world in this system, just go 
 to New York and make one change and you will accomplish 
 it : reduce the fare on their greatest route from North River 
 to East River from five cents to three. Where you have got 
 $100 now, you will then have reduced those receipts to 
 $60, and have 150 for expense and $10 left for dividends ; 
 but when you come to Boston and try to make it like New 
 York, it is physically impossible. Gentlemen, they told us 
 here that there was a principle at stake when you pressed 
 them hard on the facts and law, but I tell you it is no princi- 
 ple at all, but a policy, and the policy is different in one 
 place as the circumstances are different from what they are 
 in the other. So you see, gentlemen, there is no question of 
 principle, for a principle can be applied everywhere. It is 
 simply a question of policy ; and when a man begins to talk 
 to me about a principle in the matter, and wants a thing 
 done because there is a principle at stake, I begin to suspect 
 him. He is like a man that comes to me and wants to talk 
 business, and begins to talk about religion, and then I begin 
 to look out. You want to come down to what is the practi- 
 cal effect of what the man is saying, and then you will find 
 out what is wanted. These theories and so-called principles 
 are very mischievous, and oftentimes destructive of the 
 good of the Commonwealth. Why, gentlemen, you might 
 just as well say because one woman wears a pink ribbon 
 every other woman shall wear a pink ribbon. Now, you 
 know here is no principle about that, for the New York 
 brunette can wear a pink ribbon and bring the complexion 
 out stronger, but the Boston girl with a delicate complexion 
 puts on a pink ribbon and she is as pale as death. It is just 
 so with these horse-railway matters. You can put on 
 the pink ribbon in New York and make the companies pay 
 something into the State treasury, but if you put on the
 
 r>5 
 
 pink ribbon in Boston it is death to the corporation that you 
 put it on to. Talk about principle ! Is it not about time to 
 suspect the man that talks about the question of principle, 
 whether money shall be paid into the treasury of the State 
 or not, not his honesty, but his prudence, his wisdom, or his 
 want of it, or his want of knowledge, which is most likely 
 always all the trouble in the matter. Now, I say there is no 
 principle in this matter : it is a matter of policy, of prudence, 
 of wisdom ; no principle about it at all. 
 
 Every dog that has a taste of sheep's blood will follow it 
 until it has got its last drop, and he will follow every other 
 sheep that is within its reach or sight, and for that reason I 
 say, in all discretion and judgment, stay the hand that shall 
 seek to destroy, however innocently wrong they may be, but 
 stay it, and save the comfort of the people which they enjoy 
 now. I would bring the public opinion to bear on the cor- 
 poration in every possible way, but alluding to the munici- 
 pal corporations, such as they are, I want to say Tiothing 
 more about them than I find in that celebrated Document 
 No. 144, page 22, namely : " It must be admitted that the 
 authorities here are less exposed to the vicissitudes of Amer- 
 ican municipalities, and the scrupulous retention of experi- 
 enced men in office has greatly aided in establishing the 
 present creditable condition of the municipal administration 
 of Berlin." Now, supposing the city government is more or 
 less better or worse, they may legislate as much as they have 
 a mind to as to burdens, but authorizing them to act as 
 judges of how much money they shall take out of A's 
 pocket to put into B's is like the arsenic of which you have 
 heard something in the Legislature this winter ; it is like 
 what Judge Joel Parker said at the last Constitutional Con- 
 vention in a speech. He said, " This is in some respects a 
 most excellent Constitution. It is a good deal like a most 
 excellent loaf of bread, but it has got altogether too much 
 arsenic in it ; it has spoiled the whole." 
 
 The Chairman. Now, Mr. Proctor, one question is to 
 determine the reasonableness of an excise law. If the Leg- 
 islature affirms that it is reasonable, recites that it is reason- 
 able, adjudicates that it is reasonable, is not that conclusive?
 
 56 
 
 Mr. Proctor. It cannot do anything of the kind. The 
 Legislature was not made for adjudicating. The Legis- 
 lature is made for enacting laws, and another branch is made 
 for deciding whether they are law or not law. 
 
 The Court says in 133 Mass., page 161, for example, that 
 taxing the premiums on life insurance, non-resident life 
 insurance, in the way that they were taxed, is reasonable. 
 That is an illustration of how the Court passes upon it, but 
 there was no double taxation. If you introduced double 
 taxation, the Supreme Court would say it is unreasonable. 
 Now, what I want to say to you is that if the Legislature in 
 its acts says a thing is reasonable, that does not make it 
 so. It is for the Court to say whether it is reasonable or not 
 when the case comes up under it. That is ray position ; but, 
 gentlemen, when I was interrupted I was talking about let- 
 ting the city legislate or act as judge in taking money from 
 A and paying it to B, that it was like arsenic, and I say that 
 in the propositions that have been introduced here, there is 
 more arsenic in that loaf ; and that is in making the city the 
 judge of how much they shall take, and I submit that those 
 two kinds of arsenic are sufficient to doom the whole mass 
 in this direction. 
 
 But, gentlemen, there is another little feature I will allude 
 to briefly. The city of Boston looks very much like a 
 spendthrift youth. The Legislature has put a limit on the 
 amount it shall spend. 
 
 Representative Wilson. No more than they have on other ' 
 cities. 
 
 Mr. Proctor. And other cities. It has put it on just as a 
 father puts it on a son, and won't pay more money than he 
 ought to, and when he puts that limit on, he means that no 
 more dollars shall be spent than such a limit will yield, and 
 he means his son shall have no more. Now, gentlemen, 
 what does a son of that kind do when he has a limit put on 
 him ? He goes round to his father's friends, and by repre- 
 sentations to them he gets money out of all of them, and 
 then they call upon the father to pay, and he comes up to his 
 father and says, " O father, you pay them. I will bleed them
 
 67 
 
 as much as I can, and you pay them." Now that is about 
 the way the cities of the Commonwealth come here. They 
 had a limit put on them by their old mother, the Common- 
 wealth, and she said, " You shall not spend any more ; " and 
 now they come looking round into every corner to see how 
 they can get a chance to bleed a special class of corporations ; 
 they have been looking round to the steam railroads to see 
 how they can bleed those, just like a spendthrift boy, and 
 they want to jump over the bars ; and I say that the old 
 Commonwealth will say to these people who are trying to 
 play the spendthrift, " Go home and live within your means, 
 and be honest, and if you want any more, earn it like a 
 man ; " and I say to those people who come here, " Stand 
 within your limit like a man ; comply with it. It is the best 
 thing for you, for the city, for the Commonwealth, for the 
 people, for everybody ; but if you want any more, earn it 
 honestly and change your limit of taxation." 
 
 The only manly way to do is to determine what money 
 these cities ought to be allowed to spend, and tax the prop- 
 erty directly. Let the rich taxpayers pay what the treasury 
 fairly needs and what is warrantable for them to have, 
 instead of trying to get it out of some of the father's friends 
 (perhaps they will never get their pay), instead of trying to 
 take it out of the poor passengers who ride in the horse-cars. 
 I say the policy which is advocated here is all wrong, and 
 the moment you start over that line that I have drawn, a 
 line which has been established for forty years, you have 
 given these cities a taste of blood, and they never will stop 
 within any reasonable limits. I do not believe there is a 
 man on this Committee but what would admit that proposi- 
 tion. 
 
 Now, one gentleman on this Committee asked my friend, 
 George Fred Williams, if he thought the people would 
 approve of this movement. I am somewhat amazed that 
 he should ask what people would say about a thing that 
 they know no more about than they do about watchmaking. 
 If he had asked them if this Document No. 144 had 
 created such an impression, that would have been a fair
 
 58 
 
 question, but if you ask what the people with an intelligent 
 view of the subject would say, his answer would be, " They 
 would say, No." 
 
 Now, gentlemen, only very briefly further. It has been 
 asked here that a commission should weigh this subject 
 carefully. If the governor will appoint a good business 
 man, who has nothing to do with railroads, and a first-class, 
 level-headed, judicial lawyer, and a man who has spent his 
 life in horse railroads and knows all about the subject, that 
 commission will grind out a policy and give the reasons for 
 it so that anybody who runs may read, and that will produce 
 the best result that you can reach. There is no occasion 
 here for haste. You are starting a ball that will work much 
 ruin, in my judgment, if you open the door even for money 
 considerations in new locations. I would amend the city's 
 bill so you may prescribe the terms and conditions, exclud- 
 ing money. Open that door and you are gone into " wan-, 
 dering mazes lost." 
 
 Senator West. It is the same thino-. 
 
 Mr. Proctor. It is not the same thing. Tax the people 
 for what the old Commonwealth will allow cities to spend, 
 and they cannot have any more. I have no doubt if I were 
 in the city government I would want more money, and I 
 would try to get it, but if I spoke to them, I should say, 
 " The only way to get it is to come to the Legislature and 
 get the limit extended to have more money;" and I say that 
 it is a dangerous policy to come here and ask to have it 
 gotten indirectly out of any special class, and it is wrong 
 for them to spend any more than the Commonwealth sees 
 fit to allow them to spend. They are a mere creature of 
 the Commonwealth. A man in the city government thinks 
 he has got a sovereignty in the city government, but it is 
 so no more than a horse railway corporation : it is an agent 
 of the people, a form of agency through which business is 
 done. Grattan once said, " Do not dare to lay your hands 
 on the Constitution ; " and what I say to you is, Do not dare 
 to let a city government cross that line and begin to take 
 money. You never will hear the last of the trouble which
 
 59 
 
 will come from it, if you move in that direction one dollar's 
 worth. 
 
 The present tax by the Legislature is a franchise tax, — 
 «ee 99 Mass. 146, — there is no doubt about the law. They 
 ■cannot tax that franchise again ; it would be double taxation. 
 In the case of Sandwich Glass Company v. Boston, 4 Met- 
 €alf, top of page 186, it says, " Double taxation, being appar- 
 ently unjust and unequal, will never be presumed to have 
 been within the intention of the Legislature." Again, the 
 Courts say, in Lowell v. County Commissioners, 146 Mass. 
 409, that double taxation is an injustice; and the Public 
 Statutes, chapter 13, section 41, provide a remedy against 
 double taxation when the value of real estate is made too 
 small by the state commissioner. There it is all in a nut- 
 shell, clear and unmistakable. First the injustice; hence it 
 is unreasonable, and so within the Constitution. No Massa- 
 chusetts corporation was ever in this State taxed doubly. 
 
 Now, Mr. Richardson cites, in his brief, two cases, — the 
 foundry case and another, — in which he implies that that 
 argues toward double taxation. It does not. The real 
 estate was taxed. The stockholders paid their tax on the 
 stock in the places where they lived, and no one party was 
 taxed twice ; and there is not a case in the Commonwealth, 
 there is not a particle of a case in chapter 13 of the statutes 
 where there has been any double taxation, but it has been 
 most specially guarded against in every single case ; no one 
 party is taxed twice. Now, for your information, in drawing 
 your bill on the tax side of it you may tax the franchise as 
 much as you like, if reasonable, but tax it twice and it won't 
 stand. Now, Mr. Richardson suggests that chapter 13, sec- 
 tion 60, that general clause, looked as if there could be double 
 taxation, but, gentlemen, he did not go back to see where 
 that act came from. It comes from a statute of 1865, chap- 
 ter 283, section 18, and there is a proviso that a tax to be 
 paid in one case on premiums received here was not to be 
 computed on premiums for insurance in other States, so 
 that the very act which he cites to show double taxation 
 shows that the Legislature was especially careful to avoid
 
 60 
 
 it even where the taxed premium was in another State. I 
 want you to bear in mind that invariably in every case 
 the Legislature has been always specially careful to avoid 
 anything that looked like double taxation. 
 
 Mr. Bailey. That was because they thought it was rather 
 hard, not because they thought they could not. 
 
 Mr. Proctor. I mean to say I don't suppose the Common- 
 wealth is going to do anything that is wrong. I do not care 
 how much power they have ; I do not want to contest their 
 power ; but I appeal to= them to do what I know they will 
 do, simply what has always been honorable; and if the 
 Commonwealth, which has lasted two hundred years, has 
 never varied from one principle of taxing once the same 
 thing to the same parties, and not twice, is it not rather 
 too late a day to begin to talk about taxing the same thing 
 twice to the same parties ? It is too late, too wrong to be 
 mentioned for one moment. 
 
 Brother Richardson says, make a new class of street rail- 
 ways and tax them. I have not the slightest objection to 
 that, but if you take them out of the stock-list class and 
 put them into another class by themselves, you cannot 
 keep them in the stock-list class, and you all know that at 
 a glance; they can be taxed but once. That is just what 
 you will find in every line and letter of chapter 13 to-day. 
 I have no objection to making a distinct class if you want 
 to, but you cannot keep them in the stock list also. 
 
 Representative Quincy. What do you mean by a distinct 
 class ? 
 
 Mr. Proctor. Why, to-day all companies that have stock 
 are taxed, or nearly all are taxed, on the valuation of their 
 stock, and all corporations, such as life insurance, that 
 have no stock, are put in a class by themselves because 
 they cannot be reached the other way ; they are exceptions. 
 Now, Mr. Richardson says you can make a new class of 
 those street railways. I do not think it would be right or 
 proper to do so. It would make an invidious distinction. 
 But they have the power, and if they did put them in a 
 special class they cannot keep them in the other class too ;
 
 61 
 
 there is not the slightest question about it. Now whether 
 this proposition, which has been presented here to get some 
 money for the city is legal or not, I can see illegality ; but 
 1 think there is this possibility, that even if there are legal 
 objections to it, the corporations, if you give them the 
 security that the good of the citizens require as well as 
 themselves, stability, confidence, and honor, on that basis 
 they may accept and waive any objection there is; and I 
 have provided for those elements in the amendments to the 
 bill. Remember that we do not accept the Boston bill. 
 I have given you the reasons why I think it is wrong on 
 the ground of public policy and wi-ong for other reasons; 
 but if you are going to adopt this or anything like it, then 
 certainly we should have these amendments. 
 
 [Mr. Proctor explained these amendments and submitted 
 them in a printed bill.]
 
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