THE EXTENSION OF FEDERAL CONTROL OVER POSTROADS
_Federal Ownership of Railroads._--In an address at Indianapolis on
May 30, 1907, President Roosevelt discussing the necessity for further
congressional regulation of railway companies, declared that, “in so
far as the common carriers also transport the mails, it is, in my
opinion, probable that whether their business is or is not interstate,
it is to the same extent subject to federal control, under that clause
of the Constitution granting to the national government power to
establish postroads, and therefore by necessary implication power to
take all action necessary in order to keep them at the highest point of
efficiency.”[403]
The placing of such a construction upon the postroads clause aroused a
storm of criticism, but, in the main, President Roosevelt was correct
in his assertion of congressional authority. Municipal streets used by
mail carriers or wagons are postroads and federal control exists to the
extent of insuring safe passage of the mail and prohibiting private
competition; by the rural free delivery system, moreover, state wagon
roads are under federal authority to the same extent. That much has
been made evident by the preceding discussion.
As to common carriers between the states, congressional regulation
has been very largely based upon the commerce clause of the Federal
Constitution, and the transportation of the mails has been a
secondary, not primary, ground to justify the authority exerted. This
commercial power does not extend to intrastate undertakings, but if
these were concerned with furnishing postal facilities they could
be brought under federal control. This doctrine, however, should be
carefully qualified so as not to assert a right in Congress to assume
general supervision, for example, of municipal traction companies, an
incidental function of which is to carry the mails. The control could
be exerted only so far as was reasonably necessary to insure the safe,
speedy, and unobstructed transportation of government property.
This control, as the Debs[404] case made clear, is, in the case of
interstate carriers at least, and by parity of reasoning in the case
of intrastate undertakings also, not confined to mere legislative
rules, enforceable in the courts, but the executive power may remove
obstructions to the carriage of the mails. The national government is
charged “with the duty of keeping those highways of interstate commerce
free from obstruction, for it has always been recognized as one of
the powers and duties of a government to remove obstructions from
the highways under its control.” On this power rests, in large part,
at least, the act of October 1, 1888,[405] providing for arbitration
between railroad companies and their employees and subsequent acts
for the same purpose. The full power has not yet been exerted; it
extends to the compulsory settlement of such disputes (subject to the
limitations of the Thirteenth Amendment),[406] and to the enforcement
by federal authority of such regulations as may be necessary to remove
obstructions and insure the carriage of the mails without delay, even
in the case of streets within a town and with reference to municipal
traction companies.
It is no longer open to doubt that the federal government, under its
right of eminent domain, upon the payment of adequate compensation
judicially determined, may compel service from railroads by which
existing terms for the carriage of the mails may have been deemed
unsatisfactory. This may be done either by assuming the temporary
management of the roads for such a purpose, or by enforcing criminal
provisions against obstructing or delaying the mails. While such a
power has not been exercised, it certainly exists.[407]
But the Senate Committee which in 1874 declared that the government
could thus compel the transportation of the mails, went still further
and maintained that Congress could “take absolutely, on paying just
compensation therefor, without the consent either of the owner or of
the state within which such road may be, any railroad, its rolling
stock and equipments, within the United States for the public use and
transportation over the same of the United States mails,”--an advanced
position for this period when Congress had as yet attempted slight
regulation of the railroads.
It should require but little argument, I think, to show that if
Congress decides to nationalize the railways of the country it may
constitutionally do so under its power to establish postroads. Federal
charters to railroads and bridge companies have been pitched upon the
postal, commercial, and war powers; they have granted rights of way
through the states, immunity from taxation, powers of eminent domain,
and the right of resort to the federal courts on the ground of federal
citizenship. Congress has, moreover, the right of eminent domain even
for patriotic purposes,--to preserve the Gettysburg battlefield,--a
much more remote public purpose than that of establishing postal
facilities under the specific authorization in the Constitution.[408]
In Osborn v. The Bank of the United States,[409] it was urged upon the
Supreme Court that the bank was not an instrument of the government and
a distinction was drawn between it and an agency for which provision
was made in the Constitution. “The postoffice is established by the
general government,” said counsel. “It is a public institution. The
persons who perform its duties are public officers. No individual
has or can acquire any property in it. For all services performed
a compensation is paid out of the national treasury; and all money
received upon account of its operations is public property.” The
business “is of a public character and the charge of it expressly
conferred upon Congress by the Constitution.”[410] This distinction
between the public nature of postal facilities and the private
character of much of the business done by the bank was urged to show
that the latter was subject to taxation by the state.
To this argument Chief Justice Marshall replied that if the premises
were true, the conclusion would be inevitable. But there was a
political connection between the bank and the government and “Congress
was of the opinion that these faculties [of doing private business]
were necessary to enable the bank to perform the services which are
exacted from it, and for which it was created.... That the exercise
of these faculties greatly facilitates the fiscal operations of the
government is too obvious for controversy: and who will venture to
affirm that the suppression of them would not materially affect these
operations, and essentially impair, if not totally destroy, the utility
of the machine to the government?” If the private business engaged in
has the result of making the corporation “a more fit instrument for
the purposes of the government than it otherwise would be,” then “the
capacity to carry on this trade is a faculty indispensable to the
character and objects of the institution.”
There can be no question of the right of the federal government itself
to construct highways for the transportation of the mail and to charge
tolls for their use; nor can there be any doubt of its power to own and
operate carriers, and incidentally to engage in business of a private
nature if this increases the efficiency of the governmental agency.
Even the fact that these private undertakings, disassociated from the
carriage of the mails, would be by far the most important, would make
no difference, according to the rule as announced by Chief Justice
Marshall. On this theory, moreover, can be justified the assumption by
the federal government of the functions of a bank and common carrier,
through the postal savings and money order systems, and the parcel
post, even though these activities can also be supported as proper
elements of a postal power as it is interpreted in other countries.
If, therefore, the federal government is competent to establish
postal facilities and use them for ancillary yet helpful purposes,
there is no reason why it may not exercise its power of eminent
domain and take possession of any or all agencies now used in the
transportation of the mails, upon the payment of just compensation;
own and operate these agencies, use them to carry the mails, and to
perform all other functions which would “greatly facilitate the fiscal
operations of the government.” In this would, of course, be included
the smaller power of creating a corporation, perhaps owned in part by
the government, to take over and operate the railroads of the country
for the same purposes. The connection between such a corporation and
the government would be political and public as Marshall pointed out,
but it would be created to carry out a power specifically mentioned
in the Constitution, and its public nature would therefore be much
more apparent. There is thus an error of understatement when it is
urged that “no valid distinction can be drawn between the vital
necessity of the right to trade in money to a fiscal instrumentality
of the government, and the right to trade in transportation to a
transportation instrumentality of the government.”[411]
It is an arguable proposition that such a purpose could be accomplished
under the commercial power which is simply that of “regulation.”
By many the opinion is held that this of itself is sufficient to
give Congress the right to compel industrial corporations doing an
interstate business to secure federal charters. The constitutionality
of a law to compel interstate railroads to incorporate under the
commerce clause is even less doubtful, and the Supreme Court has upheld
the exercise of the commercial power in condemning the property of a
state corporation organized to improve navigation, just compensation
including the value of the franchise which was destroyed.[412] Federal
incorporation, then, may be required on the ground that it is necessary
for the efficient regulation of the carriers. On the other hand, the
postal clause gives Congress the right to establish instrumentalities
for the transportation of the mails, and the assumption of control or
ownership under this grant of power is more surely within the rule as
laid down by Marshall in Osborn v. The Bank of the United States.
In 1792 the proposal was made in Congress that the proprietors of mail
stages be permitted to carry passengers, but the motion was lost, on
the ground that under the postal clause Congress did not provide the
necessary authority.[413] It is true, also, that the framers of the
Constitution did not, because they could not, contemplate the taking
over by Congress of the railways of the country. And, as the preceding
discussion has attempted to show, during the early days of legislative
activity under the postroads clause, the consent of the states was
required for construction within their borders, and they acceded in one
form or another to several of the acts granting federal charters.[414]
But, as the Supreme Court of the United States has said in language
already quoted, the powers of Congress “are not confined to the
instrumentalities of commerce or of the postal service known or in use
when the Constitution was adopted, but they keep pace with the progress
of the country.” This, coupled with the right of eminent domain, is,
it is submitted, sufficient to enable the national government, either
directly or through a federally chartered corporation, to take over
and operate the railroads of the country for the carriage of the
mails, with the power of engaging in the transportation of freight or
passengers, to the extent that Congress may desire.[415]
_Postal Telegraphs and Telephones._--The case last cited is ample
authority for Congress to take over and operate the telegraph and
telephone systems of the country, for the Supreme Court made its
pronouncement in upholding the act of July 24, 1866,[416] “to aid in
the construction of telegraph lines, and to secure to the government
the use of the same for postal, military and other purposes.” The act,
among other things, gave companies complying with its terms the right
to erect their poles and string their wires along any military or
post road, and the Supreme Court declared void a state statute which
attempted to give exclusive rights to a local company.
By the third section of the congressional act, it was provided that
“the United States may, at any time after the expiration of five years
from the date of the passage of this act, for postal, military or other
purposes, purchase all the telegraph lines, property and effects of any
or all of said companies at an appraised value, to be ascertained by
five competent, disinterested persons, two of whom shall be selected
by the postmaster general of the United States, two by the company
interested, and one by the four so previously selected.” The United
States therefore reserved to itself the power which it would otherwise
have had,--that of eminent domain in respect to telegraph facilities.
In his report for 1913, the postmaster general said:
“A study of the constitutional purposes of the postal establishment
leads to the conviction that the Post Office Department should have
control over all means of the communication of intelligence. The first
telegraph line in this country was maintained and operated as a part
of the postal service, and it is to be regretted that Congress saw fit
to relinquish this facility to private enterprise. The monopolistic
nature of the telegraph business makes it of vital importance to the
people that it be conducted by unselfish interests, and this can be
accomplished only through government ownership.” If Congress decides
to take over these facilities, its action will be clearly within the
postal power.[417]