Evening star., 1953-01-12
By Rex Collier


accidents has set the stage for head
on collision between the railroads and
the District Commissioners that may
have fateful consequences. II the
Commissioners should come off second
best in this encounter, the adverse ef-
fects on the District highway program
would be far-reaching.
The threatened collision, with the
Pennsylvania Railroad already sound
ing warning blasts, arises from legisla-
ton adoptedin 1908 to require railroads
to share half the cost of viaductS in
connection with the building of the
Union Station. The scope of this So
called Union Station Act was broadened
as result of amendments in 1927 and
l941. Under this broadened authority
the Commissioners have decided to as
sess the Pennsylvania and Baltimore &
Ohio Railroads for half the So million
cost of grade separations required for
the extension of New York avenue and
for the East Capitol street bridge ape
proaches. Both projects involve cross
ing of extensive railroad trackage.
The Pennsylvania Railroad, however.
with the implicit backing of the B. q
w., COQIClOS GIlcb UIlC GILL OdA- cbooSoo-
ment provisions of the Union Station
Act no longer are valid. 1t has filed
with the Commissioners memoran-
dunn prepared by Frank j. Mccarthy,
assistant vice president of the rail-
road, in which the company's legal
reasoning is outlined. In brief, the
railroad holds that 1885 decision by
the Supreme Court in Tennessee
grade-separation case IN. c. 81 st. l..
Railway VS.. Walters, 294 U. S. 405) lays
down a general policy relieving rail-
roads of liability for any part OF the
cost of grade-separation projects, with
one exception. This is that the con-
struction must bear some reasonable
relation to the evils to be eradlcated
or the advantages to be secured" (the
courts language in the Walters caSe).
The Pennsylvania asserts that the
viaducts and other grade-separatlon
changes proposed by the District IN the
eastern part of the city will not benefit
the railroad. On the contrary, 1t Is
stated. the railroad stands to suffer
Substantial detriment in the increase
in competition from highway trans
portatlon which is facilitated thereby"
1QlS SdIIIC COu1pCVAVAfS oAASAC WV 49,
cussed by the Supreme Court in the
Walters case.
Urging the Commissioners to give
full consideration to this court ruling,
the railroads memorandum said: The
Supreme Courts opinion :. pointed out
that promotion of the public conven-
ience, which is the manifest OBJECT OF
new highways and grade separations.
does not justify statutory assessment
against the railroad because the rail-
road is under no duty to provide the
particular convenience; and precisely
the same consideration is controlling
criterion with respect to the grade
separation contemplated for the ex-
tensions of New York avenue and East
Capitol street"
Moreover, the Pennsylvania pointed
to two grade-separation structures re-
Gently built by the District without
recurring contributions from the rail-
road. One of these was the Riggs road
viaduct and the other the Kansas ave-
nue. viaduct, both involving the Baltl-
more & Ohio.
Summing up, the Pennsylvania
memorandum charged that the pro-
posed New York avenue and East
Capitol street projects "are designed
to facilitate the movement OF directly
competing highway traffic, including
passenger carrying automobiles and
buses and multitudes of freight trucks
and other commercial vehicles" The
local situation, it was declared, is "ex-
actly as described by the Supreme
Court in the Tennessee suit" as fol-
lows:
1.-THE effect upon the railroad Of
constructing Federal-aid highways,
like that here in question, is entirely
different They are not feeders OF rail
traffic. They deplete the existing rail
traffic and the revenues OF the rail-
roads. Separation of grades serves to
intensity the motor competition and to
further deplete rail traffic. The avoid
ance thereby made possible of traffic
interruptions incident to crossing at
grade is now of far greater Importance
to the highway users than it is to the
railroad crossed. For the rail opera
tions are few: those of motor vehicles
very numerous"
The memorandum concluded that
the proposed assessment here of any
part of the cost of grade separations
is both illegal and inequitable. 1t
suggested, as alternatives. that the
District gasoline tax be increased or.
preferably, that Congress be asked to
provide the additional money.
The Commissioners, on advice of
counsel, will have none of this. They
believe that the Union Station Act,
as amended, still holds good in the
District of Columbia and that they
have absolute authority to make the
railroads pay the same amount as the
District toward construction of the
admittedly expensive grade separations
now planned-or hereafter proposed.
They reject the theory that the Walters
case has invalidated this authority.
Moreover, they dispute the Pennsyl-
vanias assertion that the railroad will
derive no benefits from the projects.
They insist, in summation. that law
and equity require the railroads to pay
a share of the bill.
Their arguments go this way: Con-
gress passed the Union Station Act on