The sun. [volume] (New York [N.Y.]) 1833-1916, 1916-03-30
RAILROAD REGULATION.
The Conflict Between state anA Fed.
eral Jurisdiction.

%tribution by Mr.. ~Stuyvesant Fish on
railroad regulation. Mr.. Fish suggests
that Federal Incorporation would not
be awaited Of by the strong companies
because such action would involve re-
linquishment Of valuable rights granted
by the states, would necessitate a
change Of corporate name and loss OF
GOOD will and credit. He concludes that
Federal Incorporation would only COM
plicate an already involved situation.
Concurrent regulation by the Federal
Government and by the States creates
an impossible situation. While theoreti-
cally the Federal Government concerns
itself with inthestate commerce and the
several states with commerce within
their respective borders, the fact 10
that each and every one of these gov
ornamental agencies Is regulating not the
abstraction commerce" but the rail-
roads over which commerce among the
States is conducted. Whatever affects
one portion NJ such an organism as a
railroad Affects every other portion. Tho
rates established and the practices or
appliances demanded In state A. though
confined in terms to intrastate COM
merce. necessarily affect the rates and
practices In State II. and In zach case
there is an immediate bearing upon the
rates and practices Of the roads over
which interstate commerce flows. When
this condition OF conflicting policies and
methods II applied TO all parts Of the
railroad system Of the country the con-
troll OF interstate commerce reserved to
Congress by the Constitution IL lost. No
consistent policy in respect to the ans
portation system can he carried out by
the Federal Government 40 long as the
present condition continues.
II a single agenc Is TO take the place
or the numerous agencies now imposing
their conflicting regulations upon the
railroads that single agency must be OF
Federal creation. The dislike. some
times expressed. to any extension OF the
Federal jurisdiction liz in this case with
out warrant. The States expressly sur
rendered their right to interfere with
commerce among the States and the
power " control Is vested IN Congress.
Congress has exercised that power in
part. Rates are the ifeblood OF the
roads, and Congress having asserted It's
power in that particular. 1t remains
only to adopt n comprehensive system
that will put an end to the present rom
nlct and inure 90 the benefit Of the coun-
try and OF the railroads. The two
things are too closely bound together
Ter narrow views 20 prevail.
The problem becomes one Of method
Will Federal incorporation insure a Fed
eral transportation system. or must
Congress assert its power through a
series of enactnerts which will so
occupy the field of regulation as To ex.
clude outside Interference?
Unless Congress has the inherent
power. under the Constitution. to occupy
the whole field Of control. to the ex.
c'uslon of the states. Il carnot by Fed
eral incorporation or any other means
exercise that control. \ Federal charter.
OF and by itself. is not a talisInan
against State action OF any and every
kind.
Federal charter. for railroads are no,
a new thing. The fac; is often over
looked that man Of TIE transcont.ucu-
tai lines were Incorporated under special
charters granted by Congress These
charters have been before the courts for
Interpretation. In the case Of Regain
W.. Trust Company, lJi l.. :. 4l3. the
Supreme Court brewer. j.. y. 4I6) says
"Conccd!ng to Congress the power "a
remove the corporation in all It's
operations from the control II the state,
there Is IN the act creating this com
pany Texas and racia' Railway COM
raryl nothing which Indicates an IN
tent or the part %: Congress so to re.
move II II ltongrcssl must
have nown tAa'. IN tive nature Of things,
the control 81 that business would h.
exercised by the state. and II II deemed
that the interests OF the nation and the
discharge OF the duties required on be.
half OF the nation from this corporation
demanded exemption In all things from
State control IL would unquestionably
have expressed such intention in Ian.
guage whose eauing would be clear"
The principles to he deduced from this
n similar decisions are that Congress
mas the power 10 occupy the whole .ie,d
OF ralIroad control. 10 the exclusion OF
the several states and that the eff.
cacy OF the Federal regulation must de.
pend upon the provisions Of the act OF
Congress authorizing such Incorporation
~ the railroad Incorporation act shall
disclose "A clear Intent on the part OF
Congress 10 remove the corporations sc
created from State control. the result
viii h" ACCOMPLISHED. II such intent I,
not adequately declared. the Fedora
charter Viii not be "a matter OF much
consequence. Even then il would pro.
tect tho roads incorporated under Il,
provisions from uufrieudly discrimina.
ton In taxation of franchises. Sc, bu'
the fact would remain that Congress hat
not assumed It's full power and in.
states were sim LEFT To follow ,he.l
local prcjudiccs and policies. II II
equally certain, however. that a Fedora
incorporation act based on the clear,
conceived theory tina; all Of these road,
ana fNe'r connections and branches con,
shutting a national transportation sys-
TEN. which might not he controlled 10y
the several States. would be effective e
bring order out of the present wastefu
and chaotic condition.
What q: the objection that to accent a
Federal charter would entail the loss @.
rights granted by the States. a chang,
OF corporate name and consequent loss o.
good will and credit?
The national banking act iRev. stats.
Sec. 5l5t) permitted State BANKS 10 he.
come national banks 10y a very simple
method. \ majority Cf the directors
with the consent OF two-thirds Of IN,
stockholders. executed n certificate %,
association, This was sent to the Conn.
trollcr. who th%ereupon issued a ccrtl'l.
cate or charter. II was provided In Thu
act that the directors should continue 4,
office iii a new election was held, anc
the shares OF stock. g.. might renal!
unchanged. In constru'u: the act ths
courts hav" held that state banks MAY
avail themselves OF is privileges and
subject themselves tN i's liabilities with
out abandoning their corporate existence
without any change In the organization
officers. stockholders or property and
without interruption IN their pcndins
business or contracts. As be.
tween II fthe bankl and those who
have contracted with Il. Il retains Ia
identity, Notwithstanding its acceptance
~ the privilege Of organizing under tn
national banking act" National Bank
VS. PHILLIPS, 81 y V. SOL And further
1.-THE transaction did not disturb tn.
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