The Commodities' Clause: A Treatise on the Development and Enactment of the Commodities Clause ...

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Preface

In presenting this treatise to the public, the author wishes to acknowledge his indebtedness to the many, who, through aid in securing access to material, or sug^iestion, or criticism, have contribution to its preparation. He would make special mention of his obligation to Mr. Blackburn Esterline, Special Assistant to the Attorney General of the United States, for his invaluable assistance in the final work upon the manuscript The lengthy discussions entered into developed points of view that had not occurred to the author, and the association contributed new interest and inspiration to the work. Mr. Esterline's searching criticisms and his keen insight into the broader questions of economic policy and l^al propriety, have given a poise and consistency to the treatise that it must otherwise have lacked. In the initial consideration of subject matter, scope of the work, and method of approach, the author is indebted to Dr. Henry Parker Willis, at that time associated with the George Washington University and the New York Journal of Commerce, for valuable suggestion, broad-minded criticism, and a deeper conception of the function and responsibility of the investigator. Much appreciation is felt for the services rendered by Mr. Martin A. Knapp, the Presiding Judge of the United States Court of Commerce, Mr. John H. Marble, late member of the Interstate Commerce Commission, and Mr. Robert P« Broussard, United States Senator from Mississippi, for time given in conducting the public disputation in accord with the custom of the George Washington University in considering theses submitted in candidature for the Doctorate, and for their kind expressions in commendation of the work. Mention should also be made of the courtesies shown by Messrs. Edwin P. Grosvenor and George Carrol Todd, Assistants to the Attorney General of the United States ; Dr. Frank Dixon, of the Bureau of Railway Economics ; and Dr. Francis Walker, of the federal Bureau of Corporations. The author remembers with sincere appreciation the courteous assistance of the dficials of the libraries of, Congress, the Interstate Commerce Commission, the Department of Commerce, the Geological Survey, the Department of Justice, and the Bureau of Railway Economics. He is especially indebted to Mr. L. S. Boyd, Librarian to the Interstate Commerce Commission, for his efficiency and unvarying courtesy and

4 Pkeface.

patience in placing the resources of the library at the writer's disposal.

Since the completion of this work more than two years ago, a number of suits have been brought by the Department of Justice against the coal-carrying roads, several decisions have been rendered by the courts, and important investigations have been carried on, and reports made, by the Interstate Commerce Commission. This new material has received careful attention in the proper connection and has necessitated a number of changes in the original. The conclusions, however, have not been changed ; on the other hand they have in many cases been materially strengthened as a result of the additional data developed by the Government and the Interstate Commerce Commission.

T. L. KiBi^ER.

Table Of Contents

i'

Introductioii— The Problem Stated, •••• .^ •^.•^•. 9

Chapter I

The Status of Railway and Coal-Mining Rdationiliipa in Europe.

I. The State and the Coal Industry, 11

II. European Railways and the Coal Industry, ..,. 13

III. Conditions in Europe Restraining Joint Operation, .^ . . . . ^ 16

2. State Railway Policies, *••»«.• ......*• 18

a. English Railways and the State, ^ 19

b. German Railways and the State, ..^...^ ^ 20

c. French Railways and the State, ^. ai

d Austro-Hungarian Railways and the State, 2$

e. Belgian Railways and the State, . . .^ 26

f . Dutch and Danish Railways and the State, 97

g. Italian Railways and the State, 27

h. Other European Railways and the State, .^ 27

CHAPTER n.

The Statua of Railway and Coal-Mining Relationahipe in the United

Statea.

I. Earlier Railway Legislation, ^ .^ 50

IJ. Development of the Coal JProblem, 33

1. The Delaware, Lackawanna and Western Railroad, 36

2. The Lehigh Valley Railroad, ^ -37

3. The Erie Railroad ^

4. The Central Raihroad of New Jersey, ..^ 38

5. The Delaware and Hudson Company, 39

6. The Philadelphia and Reading Company, 40

7. Inter-Railway Relations in the Anthracite Fields, 42

IV. The eastern Bituminous Fields, ^. 45

1. The Norfolk and Western Railway, 46

2. The Western Maiyland Railway, 47

3. The Chesapeake and Ohio Railway, ^^.. 48

Tabu o? Contents.

PAG&

4. The Baltimore and Ohio Railroad, 49

5. The New York Central and Hudson River Railroad, 53

6. The Buffalo and Susquehanna Railroad, 55

7. The Buffalo, Rochester and Pittsburgh Railway, 56

8. The Pittsburgh, Shawmut and Northern Railroad, 57

9. The Pennsylvania Railroad, 57

la Inter-Railway Relations in the Bituminous Fields, 61

V. The Western Bituminous Fields 61$

1. The Rio Grande Western Railway, ...... .^ 64

2. The Colorado and Wyoming Railway, 6$

3. The Railways of Oklahoma, 66

4. The Union Pacific Railroad, 67

VI. Survey of Relationships Disclosed, ^ 69

1. Effect on Independent Coal Operator, 69

2. Effect on Prices to Consumer, ^ 70

3. Recommendations of Inter-State Commerce Commission, . . 71

CHAPTER III. Legislative History of the Commodities* Clause

I. Preliminary Considerations, .^ 74

II. Proposals in the House of Representatives, 77

III. Senate Discussion and Action, 80

IV. House Amends and Accepts Senate Resolution, 83

V. The Commodities' Amendment to Pending Rate Bill, 86

VI. Consideration in Conference, 93

VII. Final Form of Commodities^ Clause, 95

VIII. Attempts to Postpone Effectiveness of Law, 95

CHAPTER IV. Opermtion of the Law— Court Interpretation

I. Extent of Compliance with Statute, .^ 98

II. Civil Action of Government in Circuit Court, ^. 99

III. The Commodities' Clause Before the Supreme Court, 102

IV. Adjudication in the Circuit Court, 112

V. Application of the Sherman Anti-Trust Law to the Anthracite

Combine, 113

VI. Effect of Decisions upon Railway and Coal-Mining Relation-

VII. Further Adjudication Invol^ng Anthracite Combines ^ 121

1. The Delaware, Lackawanna and Western Interests 121

2. The Reading Interests, 125

a. Application of Sherman Anti-Trust Law, 126

b. Application of Commodities' Clause, 131

3. The Lehigh Valley Interests 133

Tabi,e of Contents.

CHAPTER V. Inadequacy of the Commodities* Clause— Proposals

I. Deficiencies of Existing Statutes, 137

IL Proposals Considered, 139

1. The Leasing System as Applied to Coal Lands Owned by the

State, - 139

2. The Federal Commission Plan, 143

3. Amendments Necessary to Render Act Effective, « . 147

Conclusion

(. Practical Applications, » 151

1. New York Insurance Companies and Banking Interests, ... 151

2. Texas Cotton Oil Mills and Banking Interests, 157

3. The New Haven System: Trolley Lines, Steamship Lines,

and Other Railways 158

4. The American Telegraph and Telephone Company, and the

Western Union, 161

5. Withdrawal of Individual Members of Morgan Firm from

Directorships, ^.^ x6i

II. Conclusions, • . .^ i6x

Index, 163

Bibliography, 1 70

THE COMMODITIES' d^USE

INTRODUCTION— THE PROBLEM STATgb...

__ * • •

The marvelous capitalistic growth of the last two decad^Jfii the United States, the accumulation of vast fortunes, and Uie'/ many evidences of concerted action and common motive among^' -'1 the financial interests, have aroused a spirit of unrest and dis- ' trust of a governmental r^fime under which such an unequal distribution of the profits of industry could be effected. This situation is the inevitable result of our sudden and marvelous industrial development. Legislative bodies do not generally anticipate because their constituents do not: They do not enact remedial laws until they are confronted by a condition that is insistently burdensome to the public. Then the evil is rooted, and vested interests must sometimes be rudely disturbed in order to eradicate it.

One of the most serious forms of abuse has resulted from the entrance of certain transportation companies into the businesses of manufacturing, producing, buying and selling. This practice became very common among transportation companies operating in those regions where valuable mineral properties joined their lines. Such a practice could not have immediately serious results where the interests involved extended over such wide areas as to render the concerted action of carriers, looking to monopoly control, impossible. The timber interests furnish such an illustration. The reverse situation is presented in the bituminous and anthracite industries, especially the latter, owing to the restricted area of the deposits and the dependence of carriers upon this dass of traffic for the larger part of their tonnage. Such a situation renders railway control of the output of mines extremely profitable, and any affiliation between carriers and adjoining coal mines invariably results to the disadvantage of mines not so related. The simple extension of special rates and services to affiliated mines has generally been sufficient to force independents out of the business. Partial railway control of coal mines thus leads to the gradual absorption of independents, and, ultimately, to a railway monopoly of the coal industry.

9 «•

lo TBt,Ci(mUGDvnEs' Ci^ause

The lai^gest amf ordy important anthracite coal deposits in the country are foijnd -in the eastern part of Pennsylvania and are confined to^^zyjity limited area. Certain railways operating in this regioHtl-iiaVe acquired practical control of the production, as well as the-transportation and sale, of the ou^ut of these mines. This result was accomplished through, the direct ownership and Ql^rajtion of coal mines ; the ownership of stock in such mines ; i^Wcreation and omtrol of corporations through which the rail- *;:way exerting such control might carry on (q>erations in virtual -;• ' violation of the law ; the maintenance of perpetual contracts with coal companies ; the interchange of officials and directors for the purpose of establishing a community of interests as a bar to competition ; and the various forms of discrimination and favoritism regarding rates and services which have resulted from these relationships. The inevitable result of such monopoly control has been to choke out the independent operator, to eliminate competition, and, consequently to secure practical monopoly upon the production and marketing of coal.

The situation in the bituminous fields is in many respects similar. Such complete contrcd, however, as exists in the anthracite fields has been rendered impossible by the wide extent of the bituminous deposits and the presence of other tonnage as a source of revenue.

There exists at present no authoritative treatment upon the conditions prevailing in the coal regions, or upon the attempts of the government to remedy or ameliorate these conditions. I have attempted to cover this field in the c(Hisideration of the following subjects: (i) The status of railway and coal-mining relationships ; (2) the intent of Congress as expressed in Congressional discussion and action; (3) the application of the statute enacted and its effect upon the relationships found to exist ; (4) the fundamental weakness of the Commodities' Clause; (5) an estimate of the feasibility and efficacy of the government ownership and leasing system, and the federal commission plan ; and (6) amendatory I^slation necessary to render the law effective.

In developing these themes, it has been thought well to bring to bear the experience of European governments with respect to their attitude toward the transportation and mining industries.

Chapter 1 The Status Op Railway And Coal-mining Re

LATIONSHIPS IN EUROPE

I. The State and The Coal Industry.

The European and American governmental policies toward railways appear in striking contrast. From the very inception of railway systems in Europe, they have been consistently regarded as fulfilling primarily a public function. Evils consequent upon our failure to so regard common carriers during the earlier period of their development could never arise in Europe either under private or public ownership. It is of immediate interest to know if the problem of joint ownership and operation of transportation facilities and coal mines has arisen there; if so, its effect; and if not, why not? Furthermore what are the reasons for the present tendency among European states toward government ownership ? Has this trend resulted from any objectionable relations between railways and other industries? Finally, what lessons may be learned from European experience?

We are here primarily concerned with the great coal producing countries since the temptation for railways to enter into the coal business is manifestly greater than that offered by any other industry. The United States, Great Britain, and Germany, are the great coal producing countries of the world. Together they produce about 85 per trent of the world's supply.* Austria-Hungary, Prance, and Belgium, produce nearly 10 per cent of the remainder. The entire production of Russia is little more than half that of Belgium, while the output of Spain, Italy, Holland, Switzerland, and the Balkan States, is a negligible quantity.

Nearly all the coal mines of Europe have always been operated by private corporations, independent alike of the state and of the railway. Holland has undertaken the operation of several small mines where the expense of excavating under the water is too great to attitet private capital. Proposals for nationalization in

I United States, 40 per cent (480,000,000 tons) ; Great Britain, 25 per c^t (300,000^000 tons) ; and (knnany, 19 per cent (227,000^000 tons). Resources of the United States, 1907.

2 II

England and France have been rejected without serious consideration. A bill introduced in the British House of Commons in 1893, providing for the state ownership of coal mines, did not come to a vote.' A similar bill, extended to include railways and canals, was introduced in 1907, but met the same fate.* Similar bills have been proposed by the Socialistic faction of the French Popular Assembly, with the same result

Germany alone has adopted a definite policy of state control and ownership of certain important coal mines. For the most part such mines are confined to the state of Prussia. For many years small mines in the Saar District and in Upper Silesia have been owned and operated by this state. In 1902, extensive holdings were acquired in the Ruhr District: The professed object of the latter acquisitions has been, first, to break up the monopoly of coal by the great coal syndicate of Western Prussia;* secondly, to lower the price of coal to the consumer ; and thirdly, to assure an adequate supply for state railroads. Military considerations, the conservation of coal deposits, and labor conditions, have also had some influence in determining the Prussian policy.

The "Rhenish-Westphalian Coal Syndicate in Germany is one of the most powerful, if not the most powerful, of the monopolistic combinations of Europe."' The Mining Administration of Prussia, in an attempt to exert an influence upon the price of coal, has recently become a member of the syndicate, with voting privil^[e. It now sells its own surplus from the Westphalian mines through the syndicate's sdling agencies.* It is too early to predict the effect of this experiment upon the coal mcmopoly and die price of coal to the consumer.

The entrance of the government into the coal business has had no appreciable effect upon the price of coal. In fact, state coal observed the same price level as that of the syndicate until 1909 when the former was slightly reduced.^ The output was not suf-

2 The International, Feb., 1909 (Paris and London), p. 213.

3 State Railways, E. A. Pratt (London), p. i.

4 The Rhenish-Westphalian Coal Syndicate.

5 Statement to writer by Dr. Francis Walker, of the Bureau of Corporations.

6 Monopolistic Combinations in the (^rman Coal Industry, Francis Walker, Publications of the American Economic Association, Third Series, Vol. V, pp. 188; 189. The writer is much indebted to Dr. Walker for this critical study of the situation in Germany.

7 Do.

European Raiuoads and Coai, Mines. 13

ficienty however, materially to affect the retail price of coal. The German govermnent has also endeavored, through publicity and the supervision of financial operations, to relieve the consumer from oppressive charges ; but with little success. Foreign coal has from time to time been admitted at exceptionally low tariff rates and the Empire has received bids for naval supplies from English operators, in order to force down the price demanded by local dealers.* These activities on the part of the state seem to have had very little effect upon the price level maintained by the syndicate.

The city of Vienna, Austria, has made a somewhat similar experiment in the operation of coal mines in order to have its own source of supplies for its municipal gas works. In 1909, the city paid $2,500,000 for collieries at Ostrau, on the Austro-Prussian frontier. It has recently been proposed that the city enter into a partnership with a private concern in order that it may more advantageously dispose of the surplus not consumed in the manufacture of gas.* It is clear in this case that there was no desire on the part of the municipality to enter into the general business of mining and selling coal.

With the above exceptions, the business of mining and selling coal in Europe is carried on by private companies.

II. European Railways and the Coal Industry.

No case has arisen in Europe of the actual ownership and operation of coal mines by railroad companies. A single case has appeared in England where a railroad acquired a virtual monopoly upon the purchase and sale of the output of certain coal mines. The situation presented is little less serious than that resulting from actual ownership and operation. In 1854, by special Act of Parliament, the Great Northern Railway secured control of a short line of the Abergate Company, which latter extended into the Nottingham coal fields.^® No sooner had this been accomplished than the railroad set about securing a monopoly upon the purchase and sale of the output of mines served by the Abergate line. This was effected through the control of local purchasing agencies and the creation of selling agencies in the London mar-

8 Monopolistic Combinations in the Gennan Coal Industry, Francis Walker, Publications of the American Economic Association, Third Series, VoL V, pp. 188; 189.

9 The International (Paris and London), p. 213, Feb., igog,

10 History of the Great Northers, Chas. H. Grinling, pp. 143, 144, i

14 Thc Commontiss' Clause

kets to receive and dispose of all shipments from these mines. By 1857, the scheme had worked so effectively that the coal operator was unable to dispose of his ou^ut except through the railway's agencies. At this time about 96 per cent of the entire output was sold to the Great Northern prior to shipment In December, 1857, upwards of 700^000 tons were so purduised, transported, and sold by the railway ; whereas but 38,000 tons were received and transported for the coal companies.^^ It further appeared tiiat one man, acting as agent for the railway, controlled the purchase of the ou^ut of the Nottingham mines and that operators were compelled to part with their coal at the agent's prices, or else they were unable to secure transportation facilities.^'

Various subterfuges were employed to mislead the public as to the real purport of these transactions. The railway maintained that it was not purchasing the coal prior to receiving same for shipment but that the agents in London and intermediate points were in fact representing the operators. It was shown, however, that certain mining operators had been required to go through the form of appointing an agent to market their products although such ''agents" were in fact acting under specific direction f rcmi the railway company, occupying the tatter's offices, and otherwise identifying themselves with the railway management. In many cases where it was attempted to establish the bona fide nature of these arrangements, it was clearly proved that the railway had bought outright the shipments in question before they were transported to market.**

The government contended that the act creating the Great Northern Railway did not empower it to trade in coal or employ its funds in any other manner than for "ordinary purposes of making and maintaining the railway, that is, the ordinary power

of a railway company, and no other; that the com-

pay had applied and was applying the funds of the company, to a laige amount, in purchasing coal from coal owners and selling it at London and at intermediate stations on accotmt of the (r. r.)

company as coal merchants with a view to profit, on a most

extensive scale, in competition with the coal merchants whose coal

11 The Attorney General vs. The Great Northern Railway Co., I«aw Journal Reports 38^ Ft i, New Series 29 (Equity) i860, pp. 794, 795.

European Raiukoads and Coai« Minks. 15

they carried under agreements still in force."^^ The government declared that "the effect was to enable the company to monopolize the market for sales; that their cost of carriage was a very large element in their favor charged to the consumer of coals ; and the discretion the company had of varying such cost, and the facilities of station accommodation at their command, had placed freights at so great a disadvantage as, practically, to exclude them from the market/'"

Vice Chancellor Kindersley, delivering the opinion of the court, granted the prayer of the government for an injunction forbidding the railroad company to continue the business of buying and selling coal. The Vice Chancellor said :

''I observe that in the eight years from 1850 to 1857 inclusive, the amount of their coal business has increased from 73,000 tons to 794,000 tons ; and there is no reason, as the affidavits show, why they should not — ^there is £reat danger that they may— get into their hands the entire Dusiness in the cod of that district of the country. If thqr can do this with regard to coal, what is to prevent their doing it with r^ard to every species of agricultural produce all along the line ? Why should they not become purchasers of com, of all kinds of beasts, and of sheep, and every species of agrictdtural produce, and beccmie great dealers in the supply of edibles to the markets of London; and why not every other species of commodity that is produced in every part of the country from which or to which their railway runs. I do not know where it is to stop, if the argument of the company is to prevail. There is therefore great detriment to die interests of the public, for this

reason, taking merely the article of coal The whole

question is involved m this : That by reason of the monopoly. ... • .the mischief to the public arises, and from that species of monopoly which is attempted to be acquired bv tnb company. The reason why it is unlawful to do it is, the danger of monopoly/^*

The government therefore succeeded in establishing, (i) that the road in question was dealing in coal for a profit; (2) that such transactions were illegal because the act creating the railway corporation did not authorize the road to enter into the pur-

14 Attorney General vs. Great Northern Railway Co., Law Journal Reports^ 38^ Pt. I, New Series ag (Eqnity), i86o» pp. 794, 79S« l6 The COMMODITIKS' CuiUSE

chase and sale of oMnmodities, the court maintaining that a prohibitive statute was not necessary to render such (q>erations il* legal; and (3) that the Attorney General may on his own initiative or at the instance of an individual file an information to restrain such proceedings on the part of any common carrier, no particular act of Parliament being necessary .^^

The issue in the Great Northern case was so clearly presented and so squarely met that we do not find the recurrence of a similar attempt on the part of any English railway to control the coal business. England has always allowed greater freedom to her railways than any other continental country.^' This may explain in a measure the early aggressions of the Great Northern. The same situation could not have arisen on the continent on account of the very intimate relation that has always existed between the state and the railway; nc^ is it likely to recur in Great Britain owing to the effect of this decision in defining and limiting the privileges of a common carrier, or of any corporation, to the specific purpose for which it was chartered.

III. Conditions in Europe Restraining Joint Operation.

z. Waterways. — ^The mining industry in all the European states became very thoroughly established before railways entered the field. It was never necessary for operators of coal mines to buOd railroads in order to market their product, since practically all the great coal mines of Germany, France, England, and Belgium, are located on navigable rivers.^* As early as 1875, Germany carried 19,600,000 tons of freight upon her 5,625 miles of navigable water. By 1900 this traffic had grown to 72,200,000 tons, exclusive of ocean-bound traffic.'^

The great coal mines of western Germany are conveniently located on the Rhine, the Moselle and the Saar Rivers. Other smaller mines in central Prussia have natural or artificial water courses connecting with greater water-highways; and the valuable state mines of eastern Prussia are on the Oder River.

Furthermore the great manufacturing centres of Germany are

17 Attorney General vs. Great Northern Railway Co., Law Joamal Reports 38» Pt I, New Series 29 (Equity), 18^, pp. 798-8oa

18 Moody's Magazme^ VoL 7, p. 327-

19 Canals and Navigable Rivers of Germany, Doc I, 1909^ National Waterways Commission.

European Railroads and Coal Mines. 17

connected with each other or the sea by navigable rivers or canals. The Weichsd flows from Warsaw to the Baltic reaching the seaports of Konigsberg and Danzig; the Oder with its numerous tributaries navigable from southern Silesia, and even Austria, extends to the harbor of Stettin on the Baltic ; the Spree and Havel, connected by canals with the Elbe and Oder, furnish Berlin and the outlying populous manufacturing districts with adequate facilities for the transportation of heavy freight ; the Elbe flows directly through the entire German Empire, and, with its several branches, tmites the commercial interests of Saxony, Magdeburg, Dessau, Dresden and Leipsic, affording each an adequate outlet to the Baltic by way of Hamburg ; the Weser, with its branches, the AUer, Leine, Werra and Fulda, connect all of west central Germany with the port of Bremen; and the Rhine, with its branches, the Main, Ems and Mosel, extending from the northern border of Switzerland to the port of Rotterdam, completes the marvelous system of navigable rivers with which this cotmtry is supplied.**

France is not quite so well supplied with rivers as Germany, but what is lacking in natural facilities has been supplied by an extensive system of canals and highways reaching every part of the country. This policy was inaugurated by Louis XIV, and was developed so rapidly that almost a perfect system of lines of communication was established long before the introduction of railways.**

The railways of Belgium and Holland, for freight purposes at least, are even to-day considered as mere auxiliaries to the canals. The water routes of Holland now carry about 90 per cent of the traffic. Steamers from Amsterdam deliver freight to all the leading Dutch cities in twenty-four hours, or less.** The water facilities of Belgium are almost equally good.

The valuable coal fields of England in the counties of Derby, York, Durham, New Castle, and Nottingham, as well as those in Southern England and Wales have ready access to the sea by way of the Trent, Humer and Severn Rivers, and to London, Liverpool and other great manufacturing centres, by sea routes.

31 Canals and Navigable Rivers of Germany, Doc I, igog^ National Waterways Commission. 22 Railways of Europe, Mood/s Magazine, Vol 7, p. 260. 33 Do. Vol. 9, pp. 47-50.

iS l^HE Commodities^ Clause

The situation throughout all the European states is very similar. If they do not possess sufficient natural water systems they have in the course of centuries before the introduction of railways perfected their systems of canals and public highways. Through one means or another it is a fact that nearly all the great coal mines of Europe had easy access to local manufacturing towns and to the great sea highway, connecting them with all the centres of Europe, long before railways were introduced.

In the earlier development of the systems of transportation in Europe, the rivers usually afforded through routes; whereas state highway lines, whether privately or publicly owned, were generally limited by state borders. This advantage together with the smaller cost of operation rendered water routes less expensive and more convenient. The force of this reasoning is all the more apparent when the comparatively small area of European countries is oxisidered.

As a result of these conditions, the transportation of heavy, low-priced freight by water is so much cheaper and more convenient that the bulk of such freight has always reached its destination by this means in spite of the highly developed railway systems now in operation. Railways were, therefore, not necessary to the early development of coal mines and the necessity, or even the temptation, of uniting the interests in order to develop the one or the other, did not exist

a. State Railway Policies. — ^We have presented above the natural forces which rendered the development of the coal industry practically independent of the railway. We come now to the declared policy of the European states toward the construction and operation of railways, a policy that has operated powerfully to confine transportation facilities to the business of common earners. The European governments from the beginning have taken a strong hand in the administration of their railway systems. The theory that common carriers are creatures of the state and subservient to the interests of the public, has been at the bottom of all railway legislation. This attitude may be partially explained by the fact that the railway has always been regarded, not as a substitute for the canal and public highway but merely as supplementary thereto. In general, therefore, the laws applying to the old public highway were adjusted to the administration of railways.