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RAILROAI) OOMMISSIGK. 
 
 Mr. Speaker: The bill now before the House is perhaps the most 
 iinportant that will claim the attention of this body. If enacted into 
 a law it will, in my opinion, bring more good results to the peo- 
 ple of the State than any law that has ever been placed upon the 
 Statute books of our State. As the representatives of the pettple we 
 should deal with it in a spirit of fairness towards those who oppo'se it, 
 and of candor to ourselviBS. In this government of ours the interests 
 of each and all are dependent upon each other so that no serious injury 
 can be inflicted upon any one important interest without being felt 
 sooner or later by all. . Interest then,, not to consider that patriotism 
 which should actuate us, would dictate' that we should lopt well to the 
 pTeservation and protection of the true interests of the railroads of the 
 State. But at the same time justice demands that the best interests of 
 the great masses of the people shall be preserved as well. Both can 
 be secured by just measures and can not be permanently secured to 
 either by any biit just laws. 
 
 With the desire to arrive alt the truth ipf the issue involved in this 
 measure I- shall, on behalf of the friends of the bill, proceed in my 
 humble way to examine into the objections that are interposed ito its 
 passage. This appears to me to be the best way to reach the merits of 
 the controversy. • ! i 
 
 I would first warn the friends of the conimissiCn bill, as we term 
 it, to bewaire of the tactics tha;t nave' heretofore defeaited this measure. 
 While I concede to our opponents candor.and conscienciousness in their 
 opposition, I expect that they will resort to the same or siiailar means 
 to defeat this bill as have b^en so succeissful heretofore. If some 
 friend of the people shall rise up with a, bill tha|) is plausible upon its 
 face, and offer it as a substitute for this, as was the cade when the not^d 
 engineer bill slipped in between the railroads and the people, you need 
 pot be surprised, and if it should so be, you will find that the substi- 
 tute will be an empty egg shell, as was thp engineer bill itself. If we 
 ^expect to succeed we must stand|solidly together arid be ready to make 
 some concessions if need be in order to achieve a victory that I believe 
 will be the greatest that has ever been won in the legislative halls of ' 
 this State. 
 
 It is proposed by this measure to create a railway cominissiori for the 
 State of Texas, which shall haVe the authority to fix and regulate the 
 freight charges on the railroads in this State, to prevent extortion, and 
 discrimination, and to enforce the laws of Texas by prosecutions in the 
 courts of the country. The bill demands no more of the railroads than 
 is just.' Not one of its demands has been characterized as finjust. It 
 provides the means by which obedience can and will be enforced. It is 
 just and conservative in its requirements, and it is strong and effective 
 in its provisions for enforcement. This is as it should be. 
 
 This is not a new measure; it has more than once been under inveg'^ 
 tigation in the Legislature of Texas. I am therefore justifiable in an- , 
 ^tioipating the arguments that will b0 used in opposition, for they have 
 become familiar by frequent use. I am the more justified because the 
 same objections have been lately reiterated in the hearing of the mem- 
 bers of this Legislatura/g^v/zecf jbyM/c/'pso/?® , \^ . . \, ^ 
 
 It is claimed that the bill is obnoxious to the Constitution of the' 
 
 State of Texas, and therefore if it should be passed would be void in so 
 
[2] 
 
 far as it confers ppwisr upon the commission to fix the rates of freight 
 charges upon i-ailroads. If this be true yre should not pass the bHl for 
 
 t would result in no good to the people. The claim that it is contrary 
 CO the Constitution is based upon three distinct grounds as follows; 1, 
 J'o fix the rates of charges is a legislative power that cannot be dele- 
 gated by the Legislature to a commission. 2. The Constitution enjoins it 
 upon the Legislature to fix maximum rates, and therefore the power can 
 aot be conferred upon the commission. 3. That all the railroads that 
 vere built prior to the adoption of the Constitution of 1876 had' a 
 
 fested right to charge certain rates of freights, which could not the^., 
 ■ ind can not now be taken from them. If either of these proposition^ 
 
 e correct th6 bill should not pass. _ _ , ' " 
 
 It is a principle of our Government which lies at its foundation'; that 
 
 the sovereign piower resides with the people, and that the Legislaturi 
 
 fa State may do anything, that is within the purviev of legislation 
 aaless it be inhibited by the Constitution of the State. It is likewise 
 a well settled •, ' ' Die that the Legislature cannot confer upon any 
 
 jither person or body legislative power. It therefore becomes import^' 
 mti to ascertain whether or not the power to fix freight charges is legift^ 
 ^ %tive in its character, and such as cannot be delegated. If the subjecJt 
 
 f fixing rates was not mentione'd in our Con^itution, the same pqwet 
 \ifould reside in the Legislature as does now. If it be legislative' power 
 such as coiild not be delegated^ the same rule would apply to such 
 Constitution. We will therefore examine the subject without refer- 
 ence to the^ particular clauses of our Constitution, and will find that, 
 with a Constitution silent on the subject, the Legislature woul(( 
 unquestionably have the right to delegate the power to a commis- 
 sion. This is settled in a line of decisions that is unbroken. I hold 
 in my hand the fifth voluine of the Federal Reporter, which con- 
 tains a decision made by Justice Woods of the Supreme Court of the 
 United States in the case of Tilley y, S. F. & Western Railroa|, 
 Company, page ,641, in which this question was made, and it was de- 
 cided that it was not such legislative power as could not be delegatel^ 
 Also in the case of the Georgia Railroad & Blanking Company v. Jmitllj 
 10 Georgia, page 694, the same doctrine' is asserted. Indeed, in many 
 cases has this question been presented in the same form to the Suprem,e' 
 Court of the United States and of the several States, and I imdertak^ 
 to say that the opposition will not and cannot produce one case in 
 which it has ever been held that the power could not be conferred upon 
 a comniission. I call upon the gentlemen who will reply, to me to pro- 
 duce one case in which the grant of such power has been held to be 
 void. I may then safely assume that if no case exists holding the con- 
 trary, the production of two out of the mass of decisions to sustain my 
 T)osition will be satisfactory. 
 
 I presume that no gentlemen upon this floor will be heard to say that 
 if you strike from\the Constitution, section 2, of article 10, this Legj^ 
 
 ature Would not have the right to create the commissiQn'and clothf^ 
 with all the powers that are conferred upon it by this bill, m order, to 
 
 letermine the proper construction of this section we must look to all 
 
 )arts of the Constitution, and ascertain what the policy estab- 
 jshed by it is in reference to railroads. Section. 2, article 10, in its 
 irst sentence, teads thas : "Railroads heretofore constructed, or that may 
 hereafter be constructed in this State are hereby declare!^, tffbe public 
 highways, and railroad c^panies oomig^ carriers." Section S, arti- 
 cle 12, of the Constitution, 'is a¥ f&Ilows: " The right to authoriz^nd- 
 regulate freight, tolls, wharfage, or fares levied and collected, or pro- 
 
[3] 
 
 posed to be levied andcollected by individuals, coinpaiiies,or corporatio 
 for the use of highways, landings, whlarfs, bridges and ferries devot 
 to public use has never been, and shall never be relinquished or aba 
 doned by the State, but shall always be under legislative control ai 
 ; depend upon legislative authority. Ilere we have a clear and distiu 
 8tatepi«nt in the Constitution that the power* to regulate freight up 
 public highways resides in the Legislature, and also another distin 
 statement that railroads are public highways; therefore, the power 
 regulate freights on railroads is clearly expressed in this section. y\ 
 have seen that if the power is sfiven in the Constitution, or if there 
 no restriction, the Legislattire may delegate it to a commission as 
 provided for in this bill. If then the section 2, article 10, after t 
 first sentence were blotted out of the Constitution there cppild be : 
 dispute of the right to enact this law. j The effect of the section 2, 
 referred to upon the other power granted becomes an importanF su 
 ject of inquiry, and we must consider it upon the principles of Cons 
 tutional construction that are well established: Does the langua 
 used as follows: "The Legislature shall pass laws to correct abne 
 and prevent unjust discrimination and ext^ortion in the rates of freig 
 and passenger/ tariff on the different railrpads in this StJ^te, and sha 
 from time to tiiue, pass laws establishing ^reasonable maximum rates 
 charges for the transportation of passengers ahd^ freight on said ra 
 roads, and enforce all such laws by adequate' penalties," limit or destri 
 the power given in article 12, section 3? We must reihe^ber th 
 without this language the Legislature had all thp power expressi 
 in^tti^^nd there is not a word that indicates that any power is beii 
 grantetj'dr reserved to the Legislature. It is simply the language < 
 oemmal'iad, which says to the Legislature that you must exercise tl 
 much ^f your power over railroads. A limitation upon legisl 
 tive aiithority must be expressed in prohibitory words used, 
 must bte implied from the |angu3ige used expressing one thing 
 definitely as to exclude all others. This language does neithi 
 It in no way prohibits the exercise of the power residing in t 
 ^Legislature, and which is expressly stiated in section 3, article ] 
 Thie grant of power to a Legislature carriea with it the right to use i 
 means .necessary to the exercise of the power, and it is not to be sii 
 posed that the convention intended by this section to limit the gevi$t 
 power expressed in section 3, article 12, Both articles and sectio 
 must stand and be construed together, and not be made to destroy eai 
 other. Suppose that the Legislature should pass the bill now und 
 dikcussion] which is fulli^ authorized by section 3, article 12, but shou 
 not pass any laws establishing the maximum rates of .freight, would 
 be contended that the act authorized by one section Of the Constit 
 tion is rendered void because the Legislature did not obey the col 
 mand eiikbraced in section 2, article 10? Examination will show th 
 section 3, article 12, refers to the isubject of this bin, lor it in ten 
 empowers the Legislature to regulate freights for the use of highwaj 
 and railroads are the only highways ^o which thef regulation of f reigli 
 could apply. We might rest upon this section alone for the constit 
 tionalauthoritv to enact this Jaw. 
 
 Let us, however, examine the question as if the Legislature was o 
 pendent upon seetion 2, article 10, of the Constitution, for authority 
 enact the law and see if that will not sustain the bill. It is claimi 
 that the language ofrthe Oouf,fA%ntiov.erip^s upon the Legislature t 
 duty of ^'establishing reasonable maximum rates" in the law passi 
 anddoeliiOtaa^ that ^U pan <»mT,n^«r a nor 
 
[4] 
 
 order to ascertain what is the proper conBtruotion of thik language we 
 most consider the thing to be done. Is it reasonable to suppose, that 
 the convention expected that the Legislature would classify and ar- 
 range schedules of freight and establish maximum rates for each and 
 every class?, It is a work that varies with the peculiar circumstances 
 of each railroad, and with the varying season, and requirfsi the con- 
 stant care of the officials of the railroads* Could it be expected that 
 the Legislature at its biennial sessions would be able to accompl|i^ 
 this work? I think that no such construction could be reasonably- 
 placed upon this language, bftt that such means as might be necessary 
 could be used to accomplish the work under the laws made by this 
 body. J^ortuhately we are not without a precedent in this mattjar. 
 The Constitution of the Staite of Georgia is so similar to our own that 
 *a decisio;i construing it is of great value. The language of that 
 Constitution is as follows: "The" power and authority of regulatiag^ 
 railroad freights and passenger ta,riff, preventing unjust discriminatioi^ 
 and requiring reasonable apd just rates of freight and passenger tariff 
 are hereby conferred, upon the General Assembly, whose duty it shall 
 be to pass laws from time to time, to regulate freight and passeflgfeii^ 
 tariff, to prohibit unjust discrimination on the various railroads of ^M 
 State, apa to prohibit said roads from charging other than just and 
 reasonable rates, and enforce the same by adequate penalties." The dif- 
 ference in these provisions consists solely in the use of the wbrd regu- 
 late in title Georgia Copstitution, and the word establish in that of 
 Texas. As appliedlio this subject there is not any material difference. 
 The word "regulate,'' as used in the Georgia Constitutioni, means neees- 
 sarily the same as tie word "establishmg" as used in ouFSifoir thf reason 
 that the subject of freights is not susceptible of regulation exegpt by 
 making and unmaikking them, establishing and ehanging thei^, which 
 embraces all that is expressed in our Constitutioja on the subtect? A 
 construction of the Georgia Cobstitution is therefore in point j^j^^authofrl 
 ity. In the case of the Georgia Siailroad and Banking Co. y. Smith, 70 
 Georgia, 694, the Supreme Court of that State held that undeif that clause 
 the Legislature had the right to delegate the power to a comuaM^i^M 
 Thesame was decided by Judge Woods in Tilley v. S, F. & WeStera" 
 Eailroad Company, 60 Federal Reporter. The question was directly 
 presented, and there it was contended, as here, that the LegislaMrf 
 must regulate the freights by the law passed. The railroads in W 
 cases claimed that they had the right under their charters to collect a 
 rate of freight higher than that fixed by the obmmission, but the 
 court heldin each case that the delegation of the authority was.'con- 
 stitutional and valid. These opinions are both able and elabora^i^'and 
 1 will again predict that those who will argue against this positionwill 
 not be able to brmg a single case in which the contrary doctrine has 
 been held by any court. The Illinois Constitution contains a proyisionaffl 
 rimilar to ours, and the' Supreme Court of that State, in People'"^ 
 Harper, 91 IHidois, 357; sustained a, law delegating like power. ' M 
 
 It the power to establish freight rates can not be delegated to com- 
 missioners It can not be delegated to any other person or corporation, 
 Railroads are created by laV and have no power except What is given 
 by their charters or general law. Then I would ask the gentlemen 
 Who will appear against this bill to tell this House whence the officers 
 of the railroad companies derive their authority to establish rates of 
 freight, If ?t IS not from the Legislature. ^They have no natural right 
 
 ^i!!"*-!..?*^^^ • l^'" ^^Sfi^^rfr'ie maximum of fifty-ceL. 
 
 -_^proceed to arranga f:hflif»ifei;ii^j|||int,» ^lafaoa <inA j| 
 
affix tne rates to each elass. This is done by legislative authority, and 
 we have not heard any of those who oppose us say that such law is not 
 constitutional, or that the power conferred upon railroad officials is 
 legislative in character. We must remember thalt these officials are in- 
 terested parties — interested against the people — while the commission 
 is ^composed of persons disinterested. According to the argument, it is 
 within the power of the Legislature to confer the authority to estab- 
 lish rates upon an interested party, and the very party that the Con- 
 stitution enjoins upon the Legislature to prevent ftom practicing ex- 
 tortion and discrimination, but it is not constitutional to confer the 
 same power or authority upon disinterested persons, who would protect 
 the people as the Constitution enjoins upon us to secure by just laws, 
 Such can not be a; proper construction of our Constitution. 
 ' To' stale the proposition again : If it was constitutional for the Leg- 
 islature to fix and establish a maximum rate of fifty cents and empower 
 the railroad officials to establish all other rates, how can it be ubconsti- 
 tutional for the .Legislature to establish a maximum rate of thirty cents 
 and empower the commissipn to establish the other rates? I hope that 
 ■onie gentleman will show how this can be. 
 
 The ConstituJ;ion\of the United States empowers Congress tp estab- 
 lish post roads and post offices. Is it expected that Congress will, in the 
 law passed in pursuance of that power, designate the roads or name the 
 offices. It would be utterly impracticabte, and yet far more practical 
 than for this body to properly classify all the piroperty to be trams- 
 ported on railroads in Texas and establish ma;ximu'ta(i rates for each 
 plass. . Cpngress executes the power conferred upon it by the enaclment 
 of la wa laying down the general rules tor the establishment ipf the post 
 roads and offices and delegatjes to, the proper officers the authority to 
 make rules and regulations to carry t^e law into ' effect. So do we in 
 this bill, define the duties of the commission, and guard the rights of 
 all, giving the authority to make the rules that are necessary to carry 
 the law. into execution. 
 
 Tour Supreme Court makes rules to govern the procedure of your 
 courts in which the lives and property of the citizen are involved. We 
 have not heard this questioned as being contrary to the Constitution, 
 Your CdjnptroUer makes rules and regulations for the assessmept and 
 collection of your taxes, a very important matter. It has not been 
 questioned that I know of as being contrary to the Constitution, 
 
 This constitutional difficulty is a wonderful one. It applies when it 
 suits the interest of the corporations and it is not at all applicable when 
 the interest of the masses is to be protected. The Legislature can, con- ' 
 stitutionally, empower railroad officials to establish their own rates of 
 charges, under which they combine with foreign corporations to fix our 
 local rates, thereby enriching themselves and extorting large sums of 
 _ money from the people contrary to tjie Constitution itself. But the 
 same Legislature under the same Constitution can not empower a com- 
 mission to establish such rates as will prevent extortion and discrimi- 
 nation and thereby protect the people as the Constitution commands. 
 Verily this logic is incomprehensible, , 
 
 This Constitution has been in force for more than twelve years and 
 we have never heard one of these constitutional objectors interpose 
 when the Legislature Was about to turn the people over to the tender 
 mercies of the corporations to fix the rates to be charged to them, ;. It 
 has alvtrays happened iJist tbej- jspppf.r j?jst f^the proposition is made to 
 introduce a disinterested party into the affair by which the rates will 
 be made in the interest of all, the people and th*j railroads. 
 
r6T 
 
 Again it is claimed ttat the railroads that were constructed after 
 1853, and before the repeal of the law of thiat date acquired vested rights' 
 to charge freights sufficient to pay at l^ast twelve per cent on their 
 
 " stock. If stock is to be considered as the money invested by the stock- 
 holders then twelve per cent upon it would be represented by 0. I sujffi 
 pose that there is no one so innocent as to believe that any stockhclo^ 
 now has a dollar invested in the road, except in the bonds that he has 
 bought. The stock is used for voting purposes and to consume and 
 appropriate any surplus after paying interest on the bonds if such thing 
 -.should ever happen. For the argument made by Governor Brown 1 
 iiave a high regard, so far as the source is concerned, but it is certainly 
 novel as a legal production. The act of 1853 upon which he relies 
 «hact8 in substance that the Legislature shall have the right at all times 
 to iegiilate the freight charges upon the railroads in Texas. A proviso 
 attached says that it shall not be done except each ten years and not 
 then unless the net earnings of the road is equal to twelve per cent 
 upon the stock. There is a direct Conflict between the body of the ac*^^ 
 and the proviso, and it is f principle of statutory construction that) 
 
 , proviso which is repugnant to the body of the act is void. TherefaiS 
 the law must stand by which the Legislature reseHved this right, tn th 
 case of the G. R. R. & B. Co. v. Smith, Supreme Court Repbrter, De 
 cember 10, ,1888, the Supreme Court of the United States , says that i 
 would require very strong language to authorize a construetioli that thj 
 Legislature intended thus to bind all future Legislatures. One Legi^ 
 ture has no power to bind future Legislature, and if the law of i&M 
 had been so intended it would not be allowed to do so. But the T. <S 
 P. R. R. Co. has no ground upon which to claim any such right. Bj 
 a special act of the Legislature of 1873 the State granted to it a large bbdj 
 of land upon express agreement |that it was to be Bubject to all laws oj 
 this State affecting railroads. (Special Laws 13th Leg., p. 325, sec. 9.) Il 
 is said that if the law is cohstitutional it is unwise to pass it becauBe il 
 will put a stop to all railroad building in Texas. We have always heard 
 this threat of capital withdrawing from the State whenever it is proposed 
 to put any restrictions upon speculation and extortion. J do not feai 
 that capital will withdraw, for I tell you that capital will ^ wherevet^il 
 £ncl843rbfitable investment. It is said that capital is timidii This it 
 one of the false maxims that havegroWft into common use. It is not 
 always timid but bold and aggressive whenevej; it holds the reins and 
 conservative and valuable when under control. You need not be 
 alarmed at such th;-eats. If I had the choice to have the railroadsW 
 main and be master of the land, or that they should go and the peopU 
 he free I would prefer to bid farewell to railroads and return to th« 
 days of independence and equality. I do not underestimate the bene 
 
 f fits pf railroads nor do I wish to injure them, but I do value above all 
 the benefits that they have brought or ca,n bring, the exercise of sov^ 
 eign power by the people to whom it rightfully belongs. 
 
 It is said that the shippers do not complain at the rates of frejghfc! 
 Why should they complain? The purchaser of products deducts th^' 
 freight from the price when he purchases and the seller of goods that 
 are shipped into the State adds the cost to the price when he sells so 
 that each gets his money and the per cent upon it. But the prodiieii 
 and the consumer complain. These constitute the body oft:^ 
 people who are represented here to-day. Will you heed their com- 
 plaints and right their wrongs, or will you be alarmed by the threatsOf 
 .being abandoned by the rj^m^^^Symiirissmii them in possession; stiU? -J 
 
 .for one am ready to take the step in the direction of " """^ 
 
[71 
 
 We have been told that Mhen we were poor and wittout the means 
 of transportation, we invited the railroad people into this country to 
 make their investments, and now we are disposed to confiscate their 
 money; that it is ungrateful and unjust. We were not poor^ for every 
 man was independent. It is not true that Texas invited the railroads 
 to come. The facts are that some capitalists at Houston and Galveston, 
 with others in other cities sawthat this was a o^oodly land in which to in- 
 vest in railroad building, and they went before the Legislature and sought 
 to be permitted to build in Texas and in the magnanimity of a great . 
 State, we gave them large donations of land to aid them. After having 
 been permitted, to enter into our house and having partaken of 6ur hos- 
 pitality, we are charged by them with ingratitude because we will not 
 move out, and give entire possession. Well, we are a magnanimon,s 
 and a generous people, a grateful people, but this is requiring more 
 than we can consent to, and by the boldness of the demand we are 
 warned to buckle on the armor for defense of home and right. The 
 stand must be made at this point. 
 
 . Jt is said to be unjust because of the fact that the railroads have de- 
 veloped the country and increased its wealth to a great extent. That 
 they have furnished the means of transportation throus;h which the 
 people have been enabled to ship out their productions, and on account 
 of which the population has largely increased is not to be denied. But 
 they are arrogant when they claim for themselves to have accomplished 
 this development. Where is the furrow that they have run, the field 
 that they have fenced, the bale of cotton that they have produced, the 
 bushel of wheat that they have harvested, or of corn that they have 
 cribbed. Where is the house that they have built, outside of depots 
 or the forest that they have felled. No, gentlemen, the men who have 
 dug and delved, plowed and hoed, have developed this country, and 
 they alone can develop it. The railroads were built for the profit of 
 carrying the produce out and bringing in supplies, and they have 
 reaped a rich harvest. 
 
 Vlt is said that the railroads have not been able to pay interest on 
 theii" bonds, nor diyidends en their stock, and that they have been 
 forced into the hands of receivers. Why is it so? I will tell you. 
 These roads cost not exceeding fifteen thousand dollars to the mile, 
 but theyare bonded for three or four times the amount. Take the 
 Texas & Pacific for example. It has 1125 miles of railroad in Texas, 
 and bond^ to the amount of $50,000,000, and $38,000,000 stock. This 
 represents a capital of $88,000,000 invested in 1126 miles of road or, 
 say $78,200 per mile. Who believes that the road ever cost anything ' 
 like that amount of money. But in addition to that the State granted 
 to the .railroad twenty sections of land to the mile, which has been 
 worth, at least, $1,000 per section or $20,000 per mile, making $108,000 
 per mile investment in that road. The railroad should have cost, and 
 I believe did cost not more than $16,000 per mile— $16,875,000. 
 The interest that should be paid would be not more than $760 per 
 mile, whereas it is about $2,222, or about $1,500 per mile on money 
 that was never invested in Texas. Who pays this interest? The rail-- 
 road company has no source from which to procure money except from 
 the freight naoney and passenger tariff paid by the people. It is a tax 
 upon the producers and consumers of the country, who in fact pay the 
 hefivy interest charge thus fixed upon the^road. We speak of niort- 
 gages on the railroads, but they are in fiot mortgages on the real 
 estate of this country, fcv irorr. iiiiit theyStiust derive in the main 
 direetlv or indirectly, tiie means with which to liquidate the interest. 
 
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^9 2-> {"-J 
 FOR A RAILWiY COMMISSION. 
 
 SPEECH 
 
 OF 
 \ 
 
 HON. GEO. W. TYLER 
 
 SBSTATOK FROM BELT;, 
 
 IN THE SENATE OF TEXAS, 
 
 February 28, 1889. 
 
 AUSTIN* : 
 
 SMITH, HrCK&& JONES, STATE PKINTERS. 
 
 1889. 
 
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SPEECH 
 
 SENATOR GEORGE W. TYLER, 
 
 Railway Commission. 
 
 In Senate, Austin, February 28, 1889. 
 
 The Senate having under consideration the bill known as the 
 "Railway Commission Bill." 
 
 Mr. Tyler said : 
 
 Mr. President : I realize fully, this morning, the unfortunate cir 
 cumstances under which any man appears before the Senate in a 
 further discussion of the pending bill. It might well be said that 
 the whole ground has been thoroughly gone over, and t'lat no man 
 in this discussion will be able to present anything new to the atten- 
 tion of Senators. Nor do I presume, Mr. President, that I shall 
 be able to entertain the Senate with an effort at oratory, or to en- 
 lighten your minds in the decision of the question now pending 
 before you ; but this does not discharge me from a solemn duty 
 which I owe to my constituents, or from a solemn duty which I 
 feel that I owe myself, and to the whole, country. It may be that 
 my voice will count for little in this discussion, but that little, what- 
 ever it way be, I feel it my duty to render as an humble service in 
 this cause,. 
 
 I havet)een struck, gentlemen of the Senate, with one peculiar 
 feature in this argument. I believe I may correctly say that every- 
 
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speech that has been made against the pending measure has been 
 based upon the assumption, and has proceeded upon the idea that 
 the adoption of the House Commission bill — which it is proposed 
 to substitute for the Senate bill — or the adoption of any similar 
 measure, means the destruction of the railway interests of our 
 State ; that these great eifterprises are to be torn up by the roots 
 and destroyed, and that these great investments of capital, which 
 have done so much for the development of Texas, are to be stricken 
 down by the hand of the Legislature. I- think that this is an un- 
 warranted assumption, that it is a most violent assumption, and I 
 think, gentlemen of the Senate, that it is begging of the whole 
 question in this discussion. The friends of this bill are the friends 
 of railway development in Texas. JThe friends of this bill are the 
 friends of capital and labor alike m Texas. They are the friends 
 of every enterprise and every movement which will tend to develop 
 the vast resources of our State. Speaking for myself, Mr. Presi- 
 dent, I assure the Senators that I come here with no violent preju- 
 dice against the railroads, but I come in the most friendly spirit, 
 and with the most friendly feelings towards those great agencies. of 
 development in our country. I believe sincerely that the railroads 
 have done as much, or more, than any other instrumentality to de- 
 velop Texas and bring her to her present stage of greatness and 
 prosperity, but none the less do I argue that the railroads are sub- 
 ject to regulation, as is every other interest in our State. 
 
 Another feature of this discussion to which I desire to call atten- 
 tention is that gentlemen of the opposition seem to stand upon the 
 broad proposition that because they can not support this bill^ with 
 all of its details and all of its provisions, therefore we must have no 
 railroad legislation whatever. I will except from this statement the 
 .Senator from Fayette (Mr. Lane), who himself has a bill before the 
 Senate, making classifications and fixing the maximum freight rate 
 on each class of freight. I desired at the outset, and in the begin- 
 ning of this discussion, to hear Senators from' the other side say 
 that if the details of this bill were not satisfactory to them, they 
 were willing to strike hands with the friends of the bill, perfect 
 the measure and give the people the relfef that they desire ; but I 
 have listened in vain for any such a proposition, except from the 
 Senator from Fayette ; and the opposition to the pending measure 
 .seems to be aimed as a death blow at every sort of legislation in the 
 
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 interest of the people as against the exactions of railway corpora- 
 tions. That seems to be the bent of the opposition to this bill. If 
 this bill is not a proper bill ; if its terms are not such as we 
 have a right to pass ; or if opposition to it arises from views 
 of expediency, why not join hands with us, heJ^ us to per- 
 fect the bill, amend it, and strike out its obnoxious provisions, but 
 still stand on the general principles it involves? «And I want to 
 say right here that I am not wedded personally to all of the details 
 of either the House bill or the Senate bill, but am opposed to a 
 number of provisions in each of them. I presume there is no 
 man upon the floor of the Senate or of the House who is absolutely 
 tied by his conscience to all the details of either of these bills, but 
 it seems to me that the general principle involved is one that should 
 command the attention and favorable consideration of every mem- 
 ber of the Legislature. I speak of the general idea that is involved 
 in this legislation, and I am willing to aid you in striking out the 
 obnoxious features of the biil. 
 
 What is the proposition? What is the question now before Sen- 
 atars? The proposition in this bill, Mr. President, is to substitute 
 a Commission of three disinterested, impartial, intelligent and 
 patriotic citizens of Texas for the Texas Traffic Association, or its 
 successor, the International Traffic Association — both of which 
 associations are dominated and controlled by the ifse dixit of one 
 man. -The railway people seem to take it for granted that the 
 Commission will act unjustly and oppressively. What reason is 
 there for such a presumption? On the other hand, legislatures 
 and courts will and ought to presume that the government officers 
 will act justly and impartially, and when the contrary is shown 
 they will be removed promptly under the provisions of this bill, 
 as well as under the general laws of the State relating to public 
 officers. 
 
 It seems to be taken for granted that the Commissioners provided 
 for in this bill would go at the work of oppression and destruction 
 immediately upon taking their oaths of office, when, according to 
 my understanding of the very object and purpose of government 
 and of the spirit which should pervade the discharge of official 
 duty, justice and impartiality would characterize the conduct of 
 the Commissioners. 
 
 I will devote a few aiDments, Mr. President, to the trite question 
 
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 of the constitutionality of this bill ; and, in doing so, I will assume 
 that Senators have made up their minds upon this question, and 
 hence I do not come before you with a great array of legal authori- 
 ties, but simply to present my views in the light of all the authorities 
 and decisions bt the courts which have heretofore been presented 
 in this discussion. 
 
 One of the arraments is that this bill is a delegation of legislative 
 power. I deny the proposition. This exact question was raised 
 in the argument before Judge Brewer in the Iowa case, which has 
 already been exhaustively discussed, but there are some expres- 
 sions in the opinion of the learned judge in that case to which I 
 desire at this time to call your attention. The proposition was 
 made by counsel in that case that the Commission law of Iowa was 
 a delegation of legislative power, and in that argument, you will 
 remember, they were speaking upon the direct point of fixing 
 tnaximum freight charges. Discussing this question Judge 
 Brewer said : 
 
 " By section 17 the railroad commissioners are required to make 
 a schedule of reasonable and maximum rates, and such schedule 
 is declared to be prima jacie evidence that the rates therein 
 charged are reasonable and just maximum rates and charges for 
 transportation, etc., in all suits brought against the railroad corpor- 
 ations. * * * * * * « 
 There is no inherent vice in such a delegation of power; 
 nothing in the nature of things which would ];?revent the State, by ' 
 constitutional enactment at least, from entrusting thes^ powers to 
 such a board ; and nothing in such constitutional action which 
 would invade any rights guaranteed by the federal constitution," 
 So, after all, the question is one more of form than of substance. 
 The vital question with' both shipper, and carrier is that the rates 
 shall be just and reasonable, and not by what body they should be 
 put in force. While in a general sense, following the language of 
 the Supreme Court, it must be conceded that the' power to fix rates 
 is legislative, yet the line of demarkation between legislative 
 and administrative functions is not always.easily discerned. The 
 one runs into the other. The law books are full of statutes unqu es- 
 tionably valid, in which the legislature has been content to sinipfy 
 establish rules and principles, leaving execution and details to 
 
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 other officers. Here it has declared that rates shall be reasonable 
 «nd just and comtyitted what is, partially at least, the mere admin- 
 istration of that law to the railroad commissioners. Suppose, 
 instead of a general declaration that rates should be reasonable 
 and just, it had ordered that the rates should be so fixed as to 
 secure to the carrier above the cost of carriage three per cent on 
 the money invested in the means of transportation, and then com- 
 mitted to the' board of railroad commissioners the fixing of a 
 schedule to carry this rule into effect, would nof the functions thus 
 vested in such a board be strictly administrative? While, of 
 course, the cases are not exactly parallel, yet the illustration sug- 
 gests how closely administrative functions press upon legislative 
 power, and enforce the .conviction that that which partakes so 
 largely of meft administration should not hastily.be declared an 
 unconstitutional delegation of legislative power." 
 
 Judge Brewer further said that "the reasonableness of a rate 
 ■changes with the changed condition of circumstances. That which 
 would be fair and reasonable to-day, six months or a year hence 
 may be either too high or too low. The Legislature convenes 
 only at stated periods; in this State once in two years. Justice' 
 will be more likely done if this power of fixing rates is vested in a 
 body of continual session than if left with one meeting only at 
 stated and long intervals. Such a power can change rates at any 
 time and thus meet the changing conditions of circumstances. 
 While, of course, the argument from inconvenience can not be 
 pushed too far, yet it is certainly a matter of inquiry whether in the 
 increasing complexity of our civilization, our social and business 
 relation^, the power of the Legislature to give increased extent to 
 administrative functitsns must not be recognized." 
 
 That principle of flexibility is violated by the proposition in- 
 volved in the bill of my friend the Senator from Fayette, wherein 
 he assumes t'lat the Legislature can fix a permanent rate of freight 
 charges throughout the State of Texas upon all of the roads. And 
 I think that the reasoning of Judge Brewer is one of the strongest 
 arguments against the proposition that the Legislature shall fix an 
 arbitrary, unchangable rate, and why we should relegate this power 
 to a commission who would be governed by the changing cii'cum- 
 .stances that might arise, and do justice in all cases, which we 
 
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■would, perhaps, be powerless to do if we fix the rates ; because we- 
 meet only once in two years and then we are r^ot sufficiently in- 
 formed on the subject of freights.' 
 
 But great stress is laicj upon the fact that Judge Cooley, in^ 
 his work upon Constitutional Limitations, takes high ground, as he- 
 ought to do, and as every constitutional lawyer ought to do, against 
 the delegation of ^the powers of the Legislature to any tribunal or 
 any extraneous board. It seems to me that in referring to this the 
 gentlemen failed to make a correct distinction. They failed to- 
 make a proper definition of "legislative power." As I understand 
 the Constitution of Texas, the constitution of all the States and the 
 Constitution of the United States, they simply divide the powers of 
 the government into three departments. We have the executive de- 
 partment administered by the Governor and the heacTs of depart- 
 ments ; we have the judicial department, which is represnted by the 
 courts, supreme and inferior, throughout the State ; we have the legis- 
 lative department, which is represented by the Senate and House ot 
 Representatives. The enactment of laws for the State and the in- 
 auguration of the policy of the State is remanded to the legisla- 
 tive department. Now, does this division of the powers of gov- 
 ernment mean that the legislature may not create a tribunal, niay 
 not create a commission, may not create a board, may not create a 
 committee — whatever you may be pleased to term it? Does it: 
 mean that we can not create a tribunal and empower it to discharge- 
 certain functions which might at first seem to b^ong to the legisla- 
 tive department? Certainly not ; and, to show that I am correct in- 
 this position let me cite Senators to the fact that scarcely a day has- 
 passed over our heads since we have occupied our seats upon the floor 
 of this Senate in which we have not delegated, in some form, power 
 to the various boards and tribunals of the State. Is not your statute 
 law filled with such delegations of legislative power? Does not 
 your statute in relation to the penitentiary teem from the beginning 
 to the end with delegations of legislative power? Do you not now 
 authorize the penitentiary board to enact laws, or, if you prefer a 
 different name, to adopt "rules and regulations" for the government 
 and conduct of the penitentiary system of the State? The same 
 apphes to the reformatory. A bill now pending before the Senate 
 and House incorporates many features of the law of 1887 and re- 
 enacts those provisions by which the board of government of the 
 
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 reformatory is empowered to make certain rules and regulations for 
 the government and conduct of that institution. It is still withia 
 our memory that the legislature delegated its power over the public 
 lands of our State by creating a land board, and while that land 
 board has gone into history as an unfortunate invention of the Legis- 
 lature, I have never heard the objection that it was a delegation of 
 legislative power raised against the creation of that board. The 
 objection was upon other grounds. So with your asylums for the 
 insane, for the blind and for the deaf and dumb ; so with the agri- 
 cultural and mechanical college ; so with the university and your 
 normal schools. All of these institutions are governed by boards, 
 which you have created. Change the name and call them co?n-^ 
 missions, and you have your delegation of legislative power. You; 
 have delegated to them the authority to make rules and regulations, 
 and to adopt propositions which involve the exercise of legislative 
 functions. I could speak for hours before you this morning and 
 read in our statute books page afterpage, chapter after chapter, and 
 volume after volume wherein you have delegated at least as great 
 power to other boards and tribunals in your State. I make the bold 
 proposition that you are powerless to maintain a government with- 
 out some such a delegation of power. I say that without 
 some such a delegation of legislative functions, under which. 
 you create boards to represent you in the administration of the 
 various departments of your government, it would require twa 
 legislatures, in continuous session to discharge these duties to the 
 country and to administer the various institutions of our State. It 
 arises from the very necessities of the country, from the very 
 growth and greatness^of our vast and teeming interests, that we must 
 create tribunals to sit in the vacation of the Legislature, and to ad- 
 minister the functions which might otherwise belong to our body. 
 
 I simply say, Senators, that this question of the delegation of 
 legislative power amounts to absolutely nothing. It is the differ- 
 ence between tweedledee and tweedledum, and you can argue it 
 until doomsday and that is all there is in it. And I want to say on , 
 behalf of myself, that in the discussion of this question on former 
 occasions, and when I appeared before my constituents m the cam- 
 paign and was asked my views on this question, I expressly re- 
 served to myself the right to pass upon the constitutionality of 
 these measures, because at that time I thought perhaps there was. 
 
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lO 
 
 something in this question of the delegation of legislative power ; 
 and if I saw proper now to take that side of the question I have the 
 easiest getting out place, perhaps, "of any man upon the floor of 
 the Senate. But candor and honesty compel me to admit that, the 
 more I have studied the question the stronger has become my con- 
 viction that there is nothing in it. 
 
 The Constitution of Texas has been paraded very extensively in 
 this discussion, and I desire to advert to it briefly. Article lO, 
 ■section 2, reads as follows: 
 
 "Railroads heretofore constructed, or that may hereafter be con- 
 structed in this State, are hereby declared public highways, and 
 railroad companies common carriers. The Legislature shall pass 
 laws to correct abuses and prevent unjust discrimination and extor- 
 tion in the rates of freight and passenger tariffs on the different 
 railroads in this State ; and shall from time to time pass laws estab- 
 lishing reasonable maximum rates of charges for the transportation 
 of passengers and freight on said railroads, and enforce all such 
 laws by adequate penalties." ■ " 
 
 Now we are told in this discussion that when the Constitution 
 says we shall from time to time pass laws establishing reasonable 
 maximum rates, it means reasonable maximum rates of freight, 
 not one rate of freight, but rates of freight. I say, gentlemen of 
 the Senate, that position is what we denominate at the bar a special 
 pleading. What does the word "rates" refer to? It is used twice 
 in this same sentence, and each time it precedes the words "pas- 
 senger and freight," and-I hold with all candor before you this 
 morning that the plural of the word is used to include passenger 
 &ndjreight. ]t does not mean one passenger rate; it does not 
 mean all passenger rates ; it does not mean all freight rates, but it 
 means a maximum rate for freight and for passengers. That 
 -construction is just as reasonable on tlje face of the language used 
 in the Constitution as any other tljat can be insisted upon, It 
 '•does not stop with saying the rates of freight, but the rates of 
 freight and passenger tariffs, both. It means that the legislative 
 function shall extend to fixing a maxin^um rate, not only for freight, 
 not only for passengers, but for freight and passengers both. 
 That is what the Constitution means, and that is the construction 
 
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 that has been given to tbis language whenever the question has 
 been before the courts of other States. ' 
 
 This article of the Constitution was not made' unadvisedly. I 
 am informed by the history of current events, and it has frequently 
 been asserted upon this floor without«dispute, that this article of 
 the Constitution was copied from that of the State of Illinoi%, and 
 that the delegates who composed the Constitutional Convention of 
 1875 had in view the very purpose of requiring the Legislature to 
 pass t'le laws that were then being enacted by the Legislature of 
 Illinois ; and the Illinois Legislature did what we are trying to do 
 to-day. It fixed the maximum rate of freight tariff and relegated 
 the duty of fixing the other rates to the commissioners created un- 
 dA its laws. These laws have never been assailed as unconstitu- 
 tional so far as that provision is concerned. No counsel has ever 
 made the point that the statute of Illinois, by which the maximum 
 rate of freight was fixed and the balance of the duty relegated- to 
 commissioners, was unconstitutional, No such argument has been 
 adduced on the other side of this qnestion, and it can not be. It 
 has gone without question, and it remained for this Legislature, 
 and the opponen's of railroad regulation in Texas, to originate the 
 proposition that the word "rates" as used in the Constitution 
 n\e&nt rates of Jreigkt instead of referring to the two classes, 
 freight and passenger . 
 
 Now I hold, to be brief about this matter, that when we have 
 fixed a maximum rate of freight we have performed our full duty. 
 We know that we have already a law fixing the maximum rate of 
 three cents per mile on passenger traffic. The bill now before us 
 fixes the maximum rate of freight of the first class for the first 
 hundred miles at thirty cents per hundred pounds, and it seems to 
 me that when we have done that we have discharged our full con- 
 stitutional duty. 
 
 Mr. Line — W^ill the Senator from Bell yield to a question? 
 
 Mr. Tyler — Certainly. , 
 
 Mr. Lane — Has not the Legislature heretofore fixed more than 
 one maximum rate for passengers? Has it not fixed a maximum 
 rate for children under ten years of age? 
 
 Mr. Tyler — Yes, sir; that is true, but it has never fixed a maxi- 
 mum rate on freights except on freights of the first class for the first 
 hundred rniles. 
 
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12 
 
 But, suppose I am wrong. Suppose the other construction is 
 correct — that we ought fo go through and classify all the freights- 
 and fix the maximum rates thereon, as is contemplated in the 
 measure offered by the Senator from Fayette. Suppose that is the 
 true construction ; what follfltvs? It follows that every Legislature 
 that hjs convened since 1876, when this Constitution took effect,, 
 has plainly and openly violated the Constitution of the State. So 
 far as I am advised, there has not been any law passed which at- 
 tempted to fix anything more than the maximum rate on freight of 
 the first class for the first hundred miles. No law going further 
 than that has ever been placed upon the statute books. Attempts 
 have been made, but they have been defeated. Upon that assump- 
 tion, then, the legislatures from that good day to this have sat here 
 in open violation of the Constitution and of their oaths to support 
 that Constitution, and have failed to obey the immortal " shall " 
 that we find in the Constitution. 
 
 Whatever our duty may be under the Constitution,, it is manda- 
 tory. We can not evade it. We are bound to enact the laws that 
 are there referred to, and with that " shall " staring us in the face, 
 if the views of the opposition are correct, then the Fifteenth, Six- 
 teenth, Seventeenth, Eighteenth, Nineteenth and Twentieth 
 Legislatures have stood here in open and plain violatioii of their 
 oaths and of the Constitution of your State. 
 
 ■ I am not willing to accept any such proposition. I believe those 
 bodies were as patriotic as that which is in session to-day, and that 
 they took the same view of this matter that I take this morning, 
 and when they fixed the maximum rate upon freight of the first 
 class they believed, and believed correctly, that they were per- 
 forming their full constitutional duty, and were acting from a- 
 desire to accommodate the investments, the commerce and the 
 railroad traffic of the country to the great and increasing demands , 
 of surrounding conditions, and to do justice to all alike. 
 
 It does not follow, because a commission might 1^ delegated the 
 power to administer the details of this matter and to fix other rates, 
 that their exercise of this power is therefore exclusive. It does not 
 follow that because we can empower a commission to adjust rates, 
 that the Legislature may not also exercise that power itself. I do 
 not contend that the Legislature has not the power to pass the bill 
 of the Senator from Fayette, but I hold that this power can and 
 
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 ought to be relegated to a commission, and that they can act with 
 greater wisdom and intelligence in this m&tter than any member of 
 the Legislature is competent to do. That is the leading proposi- 
 tion of the pending bill. 
 
 In regard to the right, upon genersfl principles, of the State to 
 regulate railways, that is not so much a question of law or of con- 
 stitutionality as it is one of pu'blic policy. I draw a great distinc- 
 tion between this character of legislation and those laws which 
 attempt to restrict the free and unlimited action of the individual 
 ■citizen. It may be known to Senators that I belong to that class 
 who believe that every citizen should be allowed the largest liberty 
 consistent with the public safety, and that I have always opposed 
 and cast my vote against every measure that looked to a restriction 
 of individual action. I am proud to own that I belong to that 
 school of politics. But I make a great distiction between the indi- 
 vidual citizen and the corporation. That is a distinction that has 
 not been made by the opponents of this measure. They have 
 assumed, that the railroad and the corporation occupied equal 
 ground with the individual citizen. I have no 'prejudice against 
 railroads, I am now speaking of all corporations. They take a 
 corporation by the hand and invite it to a full enjoyment, of all the 
 inalienable rights, as they express it, of the individual citizen. I 
 make a broad distinction between the inalienable rights of a being 
 that derives his existence from God on high and of one that owes 
 its creation to an act of the Legislature. 
 
 I hold that the principle involved in this legislation lies at the 
 very foundation of the sovereignty of our State. I think when you 
 are met here with the claim of " vested rights " you are thrown 
 back upon the defen.se of the very sovereignty and integrity of your 
 State. That alone would impel me to my course in this matter, if 
 nothing else. I want to read from Judge Cooley's book,* which he 
 haS' published for school boys, not for Senators. We are met upon 
 the threshold *of this question with the doctrine of ''vested 
 rights;" that under the legislative act of 1853 certain privileges 
 and immunities were guaranteed to railway corporations, to associ- 
 -ations of men who might build railways into this State, and that 
 that law has become a part of the paramount authority, higher than 
 
 *CooIey's "Principles of Constitutional Law." " 
 
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 the Constitution, higher than the Legislature, higher than the peo- 
 ple ol our State. Judge Cooley says : 
 
 "A statute, public or private, is not a contract. It is an ex- 
 pression in due form of the'will of the State, as to what shall be the 
 law on the subject covered by it ; and the State would be deprived 
 of sovereignity and crippled in the exercise of its essential func- 
 tions if it were not at liberty to change its laws at discretion."" 
 
 (P- 302.) 
 
 * * * ^ * * *,**• 
 
 "A State can not by contract bargain away any of the essential 
 powers of sovereignity, so as to deprive itself of the ability to em- 
 ploy them fagain and again, as the public Exigencies shall seem, 
 to require." (p. 304). 
 
 When we turn to the Constitution of 1845, under which the act 
 of 1853 was passed, and read Article 7, 'Section, 31, General 
 Provisions, we find that the old forefathers of Texas had foresight 
 and looked clearly into the distant future upon this question. Even 
 in that early day they realized the great force and power that corpor- 
 ations and aggregated wealth might be able to exercise upon the 
 legislation of succeeding years, and they did not propose by a con- 
 stitutional provision ever to barter away the sovereign right and 
 integrity of our State. I call your attention to this provision : 
 
 "No private corporation shall be created unless the bill creating- 
 it shall be passed by two-thirds of both houses of the Legislature ; 
 and two-thirds of the Legislature shall have power to revoke and 
 repeal all private corporations, by making compensation for the 
 franchise, and the State shall not be part owner of the stock or 
 property belonging to any corporation." 
 
 That provision was founded in the great wisdom, and in the far- 
 seeing solicitude of the fathers of the Republic* They did not 
 propose to make the State a party to these enterprises, because it 
 would compromise its dignity, its sovereignty and its integrity. 
 They proposed to keep corporations at arm's length, and let them 
 be, as they were and are, the creatures of legislative power, sub- 
 to legislative restraint, and not become greater than the sovereiga 
 itself. 
 
 * 
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 It seems to me, fellow Senators,' that when the act of 185315 
 pleaded here iii support of the claim of vested rights, we ought to 
 turn the light upon that act and examine the question whether that 
 act itself was valid under the Constitution of 1845, which provides, 
 that a private corporation shall be created only by a two-thirds vote 
 of the Legislature. I question if any general law, like the act of 
 1853 purports to be, turning loose upon the country any number 
 of corporations in the exercise of powers claimed to-day, could be 
 valid under the Constitution of 1845. 
 
 No State has the power to grant or part with a right which the 
 people may not at their pleasure reclaim — such doctrine would be 
 destructive of the very idea of sovereignty — and .all who take a 
 grant or franchise fr(3m the State do so subject to the paramount 
 and undisputed right and power of the State to recall or take back 
 the grant in the exercise of its sovereignty. This doctrine does, 
 not involve injustice. It is an elementary doctrine that the sov- 
 ereign can do no wrong, and the State will not reclaim the franchise 
 without doing so in a manner just to all concerned. There is na 
 place here for the dogma of "vested rights," and the sooner that 
 dogma is eliminated from the discussion of economic questions. 
 and is relieved from doing duty for corporate monopoly the sooner 
 will the extremes of sentiment be able to come together upon a. 
 common platform, and solve this and similar questions upon the 
 plain principle of business fairness and equity. 
 
 The owners of corporate investments greatly mistake the temper 
 of the people in supposing that there is a desire on the part of any 
 respectable number of our citizens to do them injustice or deprive 
 them of a fair and reasonable return on their actual capital. We 
 do not demand that, but we do demand laws alike just to the 
 people and to the companies, and that in the management of thia 
 great business, which not only requires the talent of able men and 
 the expenditure of vast sums of money, but which fixes to a great 
 extent the price of products, the rewards of labor and the cost of: 
 living in this country and in all countries, the people, the whole 
 people, the rich and the poor, the high- and the low, the very 
 humblest of our citizens, may be treated with that fairness, justice 
 and equity of which the representatives of these great corporations, 
 so eloquently and earnestly speak. "Equal rights to all and special 
 privileges to none," is the cardinal doctrine which we invoke to-day^ 
 
 * 
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— i6 — 
 
 spurning all sympathy with that spirit which would injure or destroy 
 these great agencies of development and progress. 
 
 Corporations, as I said before, are creatures of the law. They 
 •derive their existence from the State. It takes an act of the Legis- 
 lature to create or permit the existence of a corporation in our 
 State, or in any other- country or State. With their existence they 
 generally derive great advantages. They obtain the right to sue 
 and be sued,' the right to hold property and the right to receive 
 conveyances and to make conveyances. The railroad corporations 
 ■of Texas exercise, by grant from the State, the right of eminent 
 domain, which belongs alone to the sovereign. Can you take your 
 neighbor's land without his consent at any price? Certainly not. 
 •Only the State, the sovereign, can exercise* the right of eminent 
 ■domain, and yet we transfer a portion of that prerogative to the 
 railway corporations of our State in the interest of public policy 
 and in the interests of the public good. On what ground do wf 
 ■do that? Simply because it is a great aggregation of wealth? No. 
 Simply because it is different from any other kind of carrier? No. 
 But because it would be impractieable, impossible for them to 
 ■construct these great highways unless they had the right of 
 ■eminent domain, and in the interest of the public good, for 
 the purpose of promoting the public good, and by reason of 
 the obligations which they assume to the public as carriers, to 
 become a part and parcel of the body politic, to be a part of 
 the public itself, to be, in some sense, the public, and repre- 
 sent the public, we transfer to them a portion of the right of 
 eminent domain, which belongs exclusively to the sovereign, the 
 State. If they stand upon the same ground as the individual 
 -citizen., if they are possessed of these inalienable individual 
 rights about which Senators speak, why can not you and I, if we 
 saw proper, construct a highway? Why might not we also 
 exercise the right of eminent domain? But you will find that 
 this right is confined exclusively to these railway corporations 
 and {hose of a similar import, and that it is simply upon the 
 ground that they are a public good and have assumed a public 
 ■duty. They cannot stand behind the bulwark of personal 
 rights and do as they please, because it is only upon the theory 
 that they are a part of the public that they could exercise these 
 great powers. They do a public business, in which the public 
 
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 are greatly concerned. And there is more in this statement 
 than there would seem at first blush. With the coming of 
 the railroad every other mode of transportation is abandoned. 
 The ox wagon, the stage coach^-all other means of transpor- 
 tation and communication give way before the march of 
 progress and the advance of railroads into the country, and 
 you are dependent upon them to do your transportation and 
 to connect you with the markets of the world. They have 
 the right of eminent domain, which no individual has. They 
 are a part of the public and therefore subject to a reasonable 
 exercise of the police power of the State. 
 
 Texas has gone further than this. Texas has done more 
 for her railroads than any other State. Texas has given most 
 of them a princely public domain, upon which they have is- 
 sued bonds and built their roads to a great extent; and if the 
 right exists in any State of the Union to regulate railways, that 
 right stands upon a higher ground in Texas than injany other 
 State. They can not partake of this public nature, share with 
 the State this public prei;ogative, and then claim to be strictly 
 rivate institutions and independent of public supervision, 
 t is asserted that because the private citizen has a right to 
 ■ ttend to his own business in his own way, railway corpora- 
 tions have the same right, and that the State has no right to 
 interfere with them. Such doctrines as these are invoked in 
 this discussion. The Senator frem Lamar (Mr. McDonald) 
 speaks of the natural and inalienable right of a common car- 
 rier to charge reasonable rates for its services. That doctrine 
 as applied to an individual is cardinal and elementary, and is 
 not disputed. The Senator from Fayette says that common 
 carriers have the natural right to say what they will charge, 
 and instances hack lines, etc. Now, in the first place, if that 
 proposition applies to railways, what right has the Senator 
 from Fayette to indicate what their charges shall be by his 
 bill? I tell you that that argument made here, not only by the 
 Senator from Fayette, but by every Senator who has spoken in 
 opposition to the pending measure, would apply with equal 
 force to every other proposition to regulate freight charges. 
 It would deny the power to fix even maximum rates upon the 
 railways of the State, and 1 say to the Senator from Fayette 
 
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that when he makes the argument, and when he so eloquently 
 portrays the condition of the country aiid undertakes to show 
 that no regulation is necessary, he is rolling up stones against 
 the sepulchral door of his own bill and of every other bill 
 that may be brought forward on this subject. It means that 
 railways shall be turned loose, and be allowed to exercise 
 without any restriction the "inalienable right" of which my 
 friend, the Senator from Lamar, speaks. 
 
 I make a. great distinction, as I said before, between indi- 
 viduals and corporations. It is known "to lawyers here that 
 this doctrine of common carriers, from which these Senators 
 quote and quote correctly, was formulated into a principle of 
 ■ law at a time when there did not exist and had not existed a 
 common carrier under a corporate franchise upon the face of 
 God's green earth. It applied to the individual, to the pro- 
 prietor of the old hack line and go-cart of Old England and 
 Continental Europe, by means of which individuals did the 
 carrying and transportation of the country. So far as I am 
 informed, when that doctrine was formulated into a proposi- 
 tion of law, as we read it to-day, there had never existed a 
 common carrier under a corporate franchise. It was founded, 
 not upon any peculiar right that was vested in the carrier as a 
 carrier, but upon the inalienable and God-given right of man 
 to do as he pleases with his own, as long as he does not inter- 
 lere with th6 right of any one else. It stands upon the doc- 
 trine of the inalienable rights of man. And let me remark 
 here that the Declaration of American Independence, that im- 
 mortal document, clearly defining the inalienable rights of 
 man, never spoke of a railroad or of a corporation. But Mr. 
 Jefferson said that all men are born equal, and endowed by 
 their creator — not by the Legislature, but by God on high — 
 with certain inalienable rights. He never said that corpora- 
 tions were endowed by God with any of those rights, because 
 corporations are the creatures of the law., They get the breath 
 of life from the Legislature, and God Almighty had nothing to 
 do with them. I think one of the greatest mistakes in the 
 arguments of the opponents of railway regulation is the failure 
 to make a just distinction between the individual and the cor- 
 poration. I speak in no unkind tone towards corporations, 
 
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 because I think they are necessary,- that they are great 
 agencies of progress in the development of oiir country, and 
 I would be the last man to desire that they should be striken 
 down. Being creatures of the law, as -they are, we ought to 
 provide them every proper and legal protection, but the time 
 has not yet come to accord to a corporation the inalienable and 
 God-given rights which are born with a man. 
 
 Now, Mr. President,' much has been said here in regard to 
 the necessity of this sort of legislation. It is claimed that it is 
 not necessary, that the country is getting along very well, that 
 the railways are doing right, that the people are not suffering 
 any harm at their hands, and that everything is lovely and 
 peaceful and serene. The Senator from Lamar painted in 
 most glowing and eloquent terms the happiness and prosperity 
 of our country. I only wish I could believe that the honor- 
 able Senator is not mistaken in this matter. While I do not 
 mean that there is any great oppression, or that the people are 
 going down to the grave in starvatioii and rags and ruin — I 
 am not here for the purpose of drawing such a picture — still I' 
 want to discuss this question in the light of plain, practical, 
 business sense. I have not attempted to ornate or exaggerate 
 anything I have said, and I shall not attempt to do so. In the 
 first place we hear of a great many petitions coming to Sena- 
 tors protesting against this bill, by which, I am led to believe, 
 that some Senators have perhaps changed their position in 
 regard to this measure, or, at least, if they were doubtful, 
 have determined to take a position against the bill, on account 
 of the large number of merchants protesting against it. I want 
 to call attention to some correspondence I have received in 
 relation to this matter. A friend writing to me says : 
 
 "Now while petitions as a rule are to be considered as guides, 
 I will say that this is an exception, because of the unequal 
 means of obtaining influence through petitions. The railroad 
 companies have an average of four employes, paid ones, at 
 every station in Texas. They have their instructions and will 
 . importune and solicit signers both directly and otherwise. 
 The farmers and masses have no one to present their claims 
 without extra pay or loss of time, like the railroads have. 
 Dozens of the smartest men in Texas are kept at Austin to 
 
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 preach unconstitutionality and to hatch up every other kind 
 of scare-crow. Then how are we to have a show except 
 through our Senators and Representatives." 
 
 In regard to this matter of petitions, I will state that my 
 district cast nearly 12,000 votes at the last election, and if 
 there was one question upon which they where practically 
 unanimous, it was upon the question of a railway commission 
 bill. It was the expression of nine out of ten men who inter- 
 viewed me in the campaign. It was on everybody's tongue, 
 it was on the hustings, it was everywhere — it was in the air. 
 As we understood it in that district, the Democratic party was 
 committed in this campaign to a reasonable regulation of rail- 
 way trafic in this State, and I want to know how Senators are 
 going to evade that issue and go back to their constituents and 
 explain their votes away. But coming, as I do, from a dis- 
 trict with 12,000 votes,' I have received two protests from mer- 
 chants against this bill. They comprise forty-eight voters out ' 
 of 12,000. Should I change? Should I turn my back upon this 
 measure and betray the trust reposed in me by 12,000 honest 
 and intelligent voters of Texas because forty-eight of them 
 have seen proper to sign a protest against this bill? I take it 
 that my district is a pretty fair average of the country. Sup- 
 pose 500 men had signed such a protest in my district, ought 
 500 men to overturn the wishes of 12,000. 
 
 The Senator from Lamar spoke of the various laws which 
 we now have upon our statute books, which seem to render 
 this sort of legislation unnecessary. I was struck with the force 
 of his argument. I was myself surprised to know that we had 
 so many laws in relation to railroads. Do we need more? I 
 think I can give you the answer by telling a little anecdote 
 that you have all often heard. The old negro version, in ex- 
 planation of the creation of man, went about this way: "God 
 Almighty made Adam out of a lump of mud and Set him up 
 against the fence to dry, and when he got dry the Lord came 
 along and blew the breath oj life into him," You have your 
 laws — chapter upon chapter and precept upon precept — telling 
 railroads what to do, but they stand "against the fence," lifeless 
 things, like Adam was before the Lord blew the breath of life 
 into his body. They are lifeless, dormant, useless, and you 
 
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21 
 
 migiit as well enact a law and say to horse thieves, "don't 
 you steal any more, because it is wrong." In order to en- 
 force a law, there must be a tribunal to enforce it; you must 
 give it life and vitality; and to relieve the fears and ease the 
 conscience and souls of those who assume that this bill involves 
 oppression and outrage upon the railroads of the State, I tell 
 you that the very existence of this law would of itself almost 
 enforce it. The very existence of this law upon your stat- 
 ute books, and the very fact that there is a tribunal to 
 which the citizen may appeal; that there is a power which, 
 when invoked, will enforce the laws^that of itself would 
 secure to the people fairness and justice in their^transactions 
 with the railways of the country. 
 
 My friend, the Senator from Lamar, and others have stated, 
 in terms very complimentary and eulogistic of our able Attor- 
 ney General, in which terms 1 join most heartily, that that 
 officer will be able to enforce the laws of the State and protect 
 all or our citizens. I must give my friend great credit for his 
 ingenuity in the manner of presenting that argument. I have 
 not seen, if the Senator will pardon me, a more artistic thing 
 done upon the floor of this Senate. He spent, I think, some 
 twenty-five minutes in reading and commenting upon the 
 Attorney General's report, in which he read the style of cases 
 and abstract of -proceedings set out in each case to show what 
 the Attorney General was doing to protect the people in this 
 raatter. I say that it was an ingenious argument, though I 
 doubt not that the report itself is worthy of every encomium 
 which he passed upon it. But let me call his attention to the 
 fact that all the railway litigation on behalf of the State by the 
 Attorney General, as reported in that pamphlet, if put together 
 and one case followed another, would occupy but two pages of 
 printed matter, and "leaded" matter at that. How many 
 cases did he have? Six cases in two years were instituted by 
 the Attorney General of Texas for violations of the law, and 
 yet we are told that that officer can stand between the people 
 and the corporations. And what were the nature of those 
 cases? Was there a solitary case against discrimination? 
 Does the Attorney General show that during those two years 
 there was instituted a single case for discrimination by a rail- 
 
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22 
 
 way corporation or carrier by a County Attorney or District 
 Attorney in this State ? Not one. Tlie first case instituted 
 by the Attorney General was against the Sabirie and East 
 Texas Eailway Company for abandonment. The next case 
 was against the Galveston, Houston and Henderson Eailway, 
 to try the title to some school lands, and had nothing to do 
 with the transportation or traffic of the country. The next 
 was against the International and Great Northern Railway, by 
 quo warranto, to forfeit its charter and exemption from taxes. 
 That had nothing whatever to do with discrimination or the 
 transportation of the country. The next was to enjoin the 
 Texas Traffic Association. The Senator paid an able tribute 
 to the Attorney General for having driven that body out of 
 the State. While I a,pplaud the Attorney General for his 
 bravery and boldness in that instance, the result, perhaps, 
 was unforeseen by himself ; and it may be that if he could re- 
 call his action in that case he would do so. I would prefer, if 
 we have got to have a pool to run the traffic of Texas, to have 
 it upon Texas soil, so that we can reach it by our laws and our 
 courts. The next case was to forfeit the charter of the East Line 
 and Red River railroad. In that case there was defective ser- 
 vice. Perhaps the president was in New York and would not 
 come back to Texas to be served with citation. The next was 
 against the Texas and New Orleans Railway, to cause it to 
 keep its office in the State ; defective service also in that case. 
 That comprises the sum total of the litigation to which the 
 Senator from Lamar refers, as evidencing the power and ability 
 of our Attorney General to enforce the laws of your State in 
 relation to railroads. I question whether it has had any effect 
 or any influence whatever upon transportation, upon freight 
 rates, upon discriminations or extortions. I question if the 
 institution of these suits has had one particle of effect upon 
 the questions which are involved in the legislation now pro- 
 posed. I simply make the broad proposition, fellow Senators, 
 that while wp may have laws enough, these laws are not 
 capable of enforcement by the citizens of your State ; and my 
 proposition is supported oy the very fact that these petitions 
 have come in here from the merchants of the country who 
 have been induced to sign such protests largely because they 
 
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 believed that if they did not they would be subjected to dis- 
 criminations and unfair dealing in their transactions with the 
 railroads. Many of them have been virtually forced to sign 
 these petitions. That, of itself, should be the strongest evi- 
 dence to your minds that they are not going to enforce the 
 laws of your State, and that the citizen will not be protected 
 from discrimination, because, while they might recover in one 
 suit they would afterwards be subjected to treatment which 
 might not exactly constitute a cause of action, but which would 
 cause them to suffer by being placed at a disadvantage in their 
 business. I could give you the details of many cases in which 
 merchants have been induced to refrain from prosecution for 
 abuses, simply because, although they had a good case, they 
 were afraid of the future consequences in their dealings with 
 the railroad company. 
 
 So the merchants petition and protest against the passage of 
 this bill. But what does it really matter to the merchant what 
 the rates of freight are, if there be no discriminations? What 
 difference does it make to him whether the rates are high or 
 low? All the merchant asks is that he shall secure a freight 
 rate as low as his neighbor, so that he may sell his goods at 
 the same figures. If you and I do business side by side, I do 
 not care what the freight rates are so long as I get them as low 
 as you do and can sell my goods at the same price. Whether 
 high or low it makes no difference, because I tax them up on 
 the cost of tho goods, and include them in the selling price. 
 The farmers, the mechanics, the laborers, the lawyers, the 
 doctors — those are the real sufferers, — they buy these goods 
 and consume them, pay me back all the freight, and it is im- 
 material to me whether the rate is high or low. 
 
 The shipper is frequently afraid to assert his rights. Mem- 
 bers of the Committee on Internal Improvements will perhaps 
 remember that a few days ago when the Lane bill was referred 
 to the committee for investigation, and some traffic managers 
 appeared before that committee and submitted some statistics, 
 after those officials had made their statements, Mr. Blake, a 
 merchant and manufacturerer at Dallas, also made some state- 
 ments before the committee. When he had concluded, did 
 you notice that he turned and stated to the traffic managers 
 
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that he knew he ran the risk of incurring the ill-\\^ill of the 
 Traffic Association and of the pool of Texas, but notwithstand- 
 ing that risk, he felt called upon, as a citizen of the State, to 
 come and do his duty in this great transaction. I felt proud 
 of his manhood and courage, but I felt chargrined that any 
 citizen of Texas had to crouch and tremble before the presence 
 of the representatives of corporate power. I mean no reflec- 
 tion upon the gentlemen referred to, perhaps Mr. Blake's 
 apologetic action was uncalled for, but that was the feeling 
 which actuated Mr. Blake, and which actuates the mercantile 
 community throughout the State. 
 
 I come to another feature of this question, to which I in- 
 vite your especial attention. The South-land, to which we are 
 all devoted, whose history is freighted with the memories of 
 many a gallant conflict in behalf of Southern honor, and 
 Southern integrity, and before whose saCred altar not a Sena- 
 tor upon this floor would hesitate to fall and worship — in her 
 name I call upon you to-day. The men of the South have 
 been the hewers of wood and drawers of water for many years 
 and they will ever continue to be under the present conditions. 
 The South has always been dominated by the North in com- 
 merce and in manufactures. While the Northern Senators 
 and Representatives have been talking of Southern outrages 
 and the negro question. Northern manufacturers have built the 
 Chinese wall of protection around our people, to control their 
 custom and their commerce. I do not desire or propose to 
 treat you to a discussion of the tariff, but merely to cite you to 
 the fact that during the war and after the war, when we were 
 crushed under the foot of the oppressor, they drew around us 
 the iron band of commerce in such a manner as that it will 
 perhaps take a century to effect our escape. The doctrine of 
 protection^has become so strongly imbedded in the Northern 
 mind that, as we learned from the experience of the last cana- 
 paign, it will perhaps be the controlling dogma of this country 
 for many years. Protection, what does it mean? It means 
 that we must not have factories in our own State, that we shall 
 not have the benefit of competition from foreign countries, 
 that no manufactured goods can be brought upon the bosom 
 of the^high seas and landed up the shores of Texas, but that 
 
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 we must buy them from the manufactories of the North, and 
 that doctrine, perhaps, may prevail when you and I have been 
 laid away in the silent tomb. 
 
 The Northern mind naturally looks to the Almighty Dollar, 
 and he has worshipped at its shrine to no little purpose in 
 this country. They engage our Senators and Representatives 
 in great political discussions while their people dominate and 
 control our commerce and trade. One of our Senators from 
 Texas very recently occupied the floor of the Senate for four 
 days in an able refutation of unjust charges made against a 
 certain section of our State. I say all honor to Senator Coke 
 for that able defense of Texas ; but, what do these dis- 
 cussions mean ? Why are they precipitated upon our Sen- 
 ators and Representatives at Washington ? What do they 
 portend for the future? It means that the North will 
 hold their iron bands upon our trade, our custom and eur 
 patronage, while we are forced by their political leaders to 
 struggle for the ordinary rights of citizenship and of suffrage. 
 It means that while they are engaged in commerce and 
 manufactures, while they are building their vast manufacto- 
 ries, while they are constructing their railroads and telegraph 
 and telephone and express lines throughout the country, they 
 are engaging our leading minds, not in commerce, but in the 
 maintenance of our political rights. 
 
 Texas can not get goods from England, but must buy in 
 Boston, New York, Philadelphia, or other Eastern markets. 
 Look at the freight rates of your country. Through rates are 
 extremely low — local rates extremely high. I come now to 
 the application of the proposition. Can you ever manufacture 
 in Texas ? When we talked about reduction of the tariff and 
 were trying to reduce it in the last national campaign, and 
 give our portion of the country an equal chance and let our 
 people buy in foreign competing markets, they asked us, why 
 do you not manufacture in the South and then you would 
 believe in the tariff? I tell you that you never can manufac- 
 ture in Texas under the present conditions. I would not give 
 ten cents on the dollar for the stock of a manufactory in Texas 
 to-day as an investment. Port Worth can not manufacture, 
 Dallas can not manufacture, Rusk can uot manufacture, New 
 
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 Birmingham can not manufacture ; it is all nonsense. You 
 can not do it under the present conditions, and why ? Because 
 the business. of the country is so organized that the Northern 
 capitalist owns the factory, he owns the telegraph line, he 
 owns the railroad line, and he is going to control the trade 
 and commerce of this country so long as the present conditions 
 continue. He is going to ship his goods on his own railroad, 
 and sell them to our merchants through the medium of 
 messages over his own telegraph line, anywhere in Texas, in 
 competition with the Dallas factory, because through rates are 
 low and local rates are high. However, if the Dallas factory 
 gets in his way he will form a trust or a pool and squeeze the 
 Dallas institution to death. My friend, the Senator from ^ 
 Cherokee (Mr. Morris), and my friend, the Senator from 
 Marion (Mr. Armistead), have in their districts great manufac- 
 turing interests and industries in sight, just ahead of them. I 
 appreciate the ambition of those sections of the State and 
 would wish to see their industries built up, but they will never 
 amount to anything unless you secure to them cheap local 
 freight rates, by which the products of their factories can be 
 transported to the consumer in Texas. 
 
 It amounts to this, fellow Senators, that the discrimination 
 in through rates in favor of the products of the North, com- 
 pels the producer, the laborer, the professional man and all 
 classes of citizens in Texas to patronize the factories of the 
 North. You can not expect to build up your factories in the ■ 
 South under these unequal conditions. The only way to do it 
 is to take hold of this freight question and regulate the rail- 
 ways of the country reasonably, justly, fairly and impartially, 
 and adjust these matters so that all of the industries and all 
 of the interests of Texas may be built up together, and not 
 allow railroad interests to be built up at the expense of every 
 other industry. 
 
 But it is said that when you get more railroads to your fac- 
 tories the competition will give them the needed relief. Not 
 so. One railroad is just as good as a thousand, so far as 
 freight rates are concerned, when you have a traffic associa- 
 tion dictated to by one man and he fixes the rates on all of 
 them. Competition is not the solution of the question. 
 
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 I want to read biiefly from an authority which I have here 
 upon this question of railroad development. There is some- 
 thmginvolved m this question which it seems to me has not 
 been duly considered. We lawyers in the Senate and in the 
 court houses get down our old musty books and blow the dust- 
 oft ot them and read about common carriers and individual 
 and inalienable rights. That is all proper enough in its place, 
 but i believe it has no application here. I read from a work* 
 by Professor Hadley, of Tale College/ an eminent authority 
 which passes among railroad men and all intelligent thinkers 
 of the day. He calls attention in the beginning of his book 
 to the history of railroad development. He says: 
 
 "On the fourth of July, 1828, Charles Carroll, last sur- 
 viving signer of the Declaration of Independence, laid the 
 first rail of the Baltimore and Ohio Railroad. One man's life 
 formed the connecting link between the political revolution 
 of the last century and the industrial revolution of the present. 
 The second reaches wider and deeper than the' first. Yet there 
 are few who realize its full importance, or who seriously try to 
 understand it. A new system of commercial and social rela- 
 tions has arisen among us. Small industries and independent 
 •workmen are giving place to large factories and factory opera- 
 tives. We no longer produce for the home market, but for 
 the world's markets. A rapidly increasing share of produc- 
 tive wealth is held by corporations. The men who manage 
 this mass of corporate capital form the sole connecting link 
 between investors,, workmen and consumers. The classes be- 
 come more and more sharply marked. Conflicts of interests 
 arise between them — sometimes apparent, sometimes real— 
 which result in disastrous struggles or in class legislation of 
 the worst type. Yet the majority of men seem indifferent to 
 the real importance of these events. Occasionally they make 
 feeble attempts to resist them. More often they allow them- 
 selves to be hurried on in the general movement, without 
 even trying to understand what it means or whither it is 
 
 leading. 
 
 — . . . 
 
 * " Railroad Transportation; Its History and its Laws." By Ar- 
 thur T. Hadley, Commissiotier of Labor Statistics of the State of 
 Connecticut; Instructor in Political Science in Yale College. 1886. 
 
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 " Of these changes the railroad is at once an instrument and 
 an example. As a carrier it furnishes the means which has 
 made modern business methods possible. As an organization, 
 it furnishes in itself an extreme type of those methods. No 
 one symptom, in business or in politics, marks the direc- 
 tion of national activity so clearly as does the way in which 
 the transportation system is organized and controlled." 
 
 Is it not within the memory of Senators upon this floor 
 when every little town of five hundred or a thousand inhabi- 
 tants had its shoemaker, its hatmaker, its tailor, and all of 
 these various pursuits were followed by individual citizens of 
 the community ? Such used to be the condition of things 
 throughout the whole country. Have you considered that the 
 occupations of our people are gradually being absorbed by 
 corporate enterprises ? The old fellow who used to make 
 boots when you were a boy is now a shoemaker in some great 
 boot and shoe factory, working for five or six dollars a week. 
 The man who used to make our hats is employed as a 
 journeyman in some great hat manufactory in Philadelphia or 
 New York. All of these avocations and occupations have 
 been swallowed up by the aggregation of corporate capital. It 
 is true that with great aggregations of capital and a great num- 
 ber of workmen these articles are made cheaper than they 
 used to be. I am not speaking against this policy, but merely 
 to remind you, fellow Senators, that the laws of trade and 
 commerce have assumed a difierent condition to that of fifty 
 years ago. They demand a different principle of adjustment, 
 and the application of difierent laws and a different treatment 
 at our hands, and we should open our eyes to this country 
 and this age instead of looking into the musty law books of 
 England for the laws governing a former age. Professor Had- 
 ley also says : 
 
 " Until about 1850 it was assumed that railroad business 
 wa? subject to the same laws as any other business, and in 
 particular to the so-called law of competition, by whose free 
 action rates would be brought down to the cost of service." It 
 , was gradually seen that this assumption was not strictly true ; 
 that in many instances it was very far from the truth." 
 
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And so he goes on to discuss the development of the railway 
 traffic of the country and the new conditions, new agencies 
 and new appliances brought to bear in its developmen. In 
 speaking of the demand for special legislation, he "Says: 
 
 "The investment in a railroad, is owned, almost of necessity, 
 by a corporation. As concerns the users it is almost neces- 
 sarily a monopoly. Very few points have the benefit of more 
 than one line of road; even at these points it is often easy to 
 come to an agreement. In all these cases competition is not 
 directly felt. When a railroad makes arbitrary rates, whether 
 justified or not, there is no appeal to any controlling influence. 
 The attempt is, therefore, constantly made to bring the rail- 
 roads under the authority of special legislation. 'Shere is no 
 lack of grounds on which to base such' special action. Cor- 
 porate existence in itself renders a certain amount of legal con- 
 trol necessary. Common carriers have from time immemorial 
 been made subject to special responsibility. When a single 
 carrier, or a very few of them, have a virtual monopoly f f the 
 whole business, this responsibility needs to be still more 
 strictly enforced. This was the doctine of the United States 
 Supreme Court in the granger cases (Munn v. Illinois, 94 U. 
 S. 113), in which the reserved police power of the State was 
 so strongly asserted. The railroads themselves recognize their 
 peculiar position under the law, in claiming to exercise the 
 right of eminent domain to take land without the owner's con- 
 sent. If they get the benefit of their character as a 'public 
 use,' they must accept the drawbacks which that character 
 involves. 
 
 '"Finally, the chief practical reason why so much special 
 legislation is directed against railroads, is that we are dealing 
 with anew business, without the benefit of established prece- 
 dents in its favor. The public is jealous of the railroad power. 
 It will not allow it to manage its business without interference, 
 because it is 'afraid that it will grow so strong that all interfer- 
 ence will be impossible. The public sees no limit to the grow- 
 ing power of corporations, and it regards this growth with a 
 kind of vague fear. This fear is none the less potent because 
 men are at a loss to tell exactly what they are afraid of. It 
 
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 gives rise to much wild talk, and some ill-judged legislation. 
 These manifestations drive some men to the opposite extreme. 
 Because the fear is vague, they insist that it is groundless. 
 Because the talk is wild, they insist that it is much ado about 
 nothing. Because the legislation is ill-judged, they insist that 
 no legislation is needed. Either extrem^ is bad. It is not 
 well to be frightened at the growth of corporate power; but it 
 is not well to shut our eyes to the plain fact of the case. Not 
 far from one-quarter of the wealtlf of the United States is held 
 by trading corporations. It is not improbable that half the 
 permanent business investment of the country is owned in this 
 way. It is certain that not only in the United States, but in 
 the whole civilized world, corporate property is increasing 
 many time? faster than other forms of wealth. It is safe to 
 say that amid the many important business changes of the 
 present century this sudden growth of corporations is the most 
 important." 
 
 This author estimates the comparative increases from 1870 
 to 1880 as follows: in total wealth of the world ten per cent., 
 in use of machinery forty to fifty per cent.; in railroads seven- 
 ty-five per cent. He further says: 
 
 "So rapid has been the change that men's thoughts have 
 been hardly able to adapt themselves to it ; still less has the 
 law been able to keep pace with it. The change has brought 
 evils and dangers previously unknown, and even now imper- 
 fectly understood. Against these dangers old safeguards have 
 proved useless; new legislation based on a merely superficial 
 view of the facts has proved worse than useless. If our reme- 
 dies are to be of any avail they must be based on- a thorough 
 understanding of the evils against which they are directed. 
 To understand the evils, we must understand the character 
 of the system, and the causes which have led to its growth." 
 (pp. 40 to 43.) 
 
 I merely call your attention to the views of that distin- 
 guished writer and thinker of our country in order to awaken 
 in your minds th^ idea that we are dealing with a new ques- 
 tion. A new era has been inaugurated in our country, and we 
 
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-- 31 ^ 
 
 ought to deal with the questions it presents with the vigof 
 which is demanded by the hour. •! do not mean that we 
 should oppress railroads out of existence or reduce their reve- 
 nue upon traffic so that they will not pay, but I do mean that 
 we should assert the general principle of railroad regulation^ 
 because I believe it lies at the very bottom and foundation of 
 the integrity of the government and of the prosperity of the 
 people of our State. We are told by Senators that there is 
 no need for this legislation 'that there is no discrimination, no 
 overcharges, no exactions, no unfairness in the transaction of 
 the railway business of our State; that the railways are doing 
 just exactly what they ought to do, and that we do not need 
 commissioners. If this be true the commission will be harmless, 
 and it will not cost the State anything except the salaries of 
 the commissioners. If the railways are doing what is right, 
 what have they to fear from investigation. If I am doing 
 right, doing what I ought to do, should I object to your turn- 
 ing the light of investigation upon my actions? No, because 
 I have nothing to fear. But on the other hand, if I am not 
 doing right, I would be expected to resist all efforts at investi- 
 gation; and I think the fact of the giant efforts being made to- 
 day by the railway companies of Texas against this legislation 
 is one of the very strongest arguments why we ought to adopt 
 the general idea of this bill and see whether it will not benefit 
 the people of our State. If it is needless it will at least be 
 harmless, and will cost the State but little; but on the other 
 hand, if these matters need regulation, ought this Legislature 
 to fail in its duty to the people? I have received a great many 
 letters since this measure was presented, calling my atten- 
 tion to various discriminations, overcharges, etc. I want to 
 call your attention, briefly, to the letters of one, of my cor- 
 respondents, a gentleman who has written to me voluntarily, 
 and not upon any solicitation of mine; and I will state that if 
 I were to call his name he would be recognized by probably 
 three-fourths of the Senators upon this floor as a man of 
 standing in your State, a brave and gallant soldier of the Con- 
 federate war, the peer of any man in Texas in integrity, up- 
 rightness, honesty, fairness and impartiality in all matters of 
 this sort, and he is a merchant, too. He says: 
 
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 "I have never -seen the business interest of a country so 
 completely disgusted with' oppressive rates of freight as our 
 people are at this time. I will give you a few examples of 
 how we are robbed : Prom Belton to Dallas, 154 miles, 53 
 cents per hundred, or $106 per car ; from Belton to St. Louis, 
 only 60 cents per hundred, or $120 per car : from Belton to 
 San Angelo for * * * $68 per car; from Belton to Galveston, 
 same distance, $40 per car. I am completely cut off in my 
 * * * trade. I have a car * * =t^ from * * * near Beau- 
 mont at $103 per car ; former rate $45. If we don't get some- 
 thing to regulate these fellows we had better shut up shop and 
 give them the country. It looks as if railroads were trying to 
 show the people that they belong to them and are their, 
 masters. These are only a few of the (many instances of the 
 robbery perpetrated on our people. The business riien, the 
 farmers, the laboring men, all, ail are looking to this legisla- 
 ture to pass some laws that will at least relieve the people of 
 some of this oppression. From my standpoint, the railroads 
 are not one whit better or more honest than the man who 
 stops you on the road and takes your money, except that the 
 former have the semblance of law on their side which permits 
 them to rob by wholesale. I hope you, as a representa- 
 tive of the people, will meet this thing in a manly, firm, open 
 and decisive way, so that something may be done." 
 
 Governor Brown, in his address before the committee of the 
 House, went on to say that if we passed this legislation the 
 railroad companies would have to shut up shop. I will 
 tell you. Senators, if you do not do something of this sort the 
 business interests of our country will have to " shutup shop." 
 
 My correspondent was a distinguished delegate in the Dem- 
 ocratic convention, and no man was capable of understanding 
 more intelligently the meaning of the platform adopted at 
 Dallas, and no man in Texas stands superior to him in his 
 devotion and allegiance to the Democratic party. He is a 
 man who never hesitates to raise his voice in behalf of Demo- 
 cratic principles upon any and all occasions. Referring to 
 that convention, he says : 
 
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 " The State convention at Dallas committed itself, ot at 
 least the Democratic party, to a commission of some sort. All 
 Democrats in the canvass pledged that they would see to this 
 thing if elected. All farmers believe that each day the rail- 
 roads are getting more defiant. Local freights are simply out 
 of all reason and amount to an embargo on trade. I want to 
 ship corn and oats for 'the farmers of this county, but the 
 freights amount to twice the value of the products here at home. 
 Unless some relief is given by this Legislature we are going 
 to have serious times among our people. When good and 
 true men get aroused and come to the front to assist in reliev- 
 ing the people, it is high time for our law-makers to look well 
 to the future and to the interests of their constituency. If the 
 Senate would look at the late freight advance and compare the 
 rates, then see how trade has fallen off, they will see why the 
 railroads say the roads don't pay.- These fellows 'go before 
 the board of equalization and swear that they can build and 
 equip their roads for $7,000 per mile. The same men will go 
 before a committee and swear that it takes $20,000 to build 
 an average mile, of road. How are you to find the truth ? " 
 
 Mr. McDonald— Will the Senator from Bell yield to a ques- 
 tion? 
 
 Mr. Tyler— Certainly. 
 
 Mr. McDonald — Do I understand the Senator to claim that 
 the Dallas platform demanded the passage of a commission 
 bill? 
 
 Mi-. Tyler — No, sir, I do bot claim that ; but it called for a 
 proper regulation of the railroads, and that was generally 
 understood in the campaign, at least in my section, to mean a 
 railway commission. 
 
 -Local freights, says this gentleman, are out of all reason. 
 It has already been stated here that during the drouth two 
 years ago, while there was an abundance of corn in some por- 
 tions of this State — sufficient to have supplied those drouth 
 stricken districts — yet it could not be delivered in that section 
 of the State, because the Kansas corn could be bought and 
 shipped down to the Panhandle and to the Rio Grande cheaper 
 than we could get our own corn to those places. Have not we 
 
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 the right to sell to those places ? Have not the factories of 
 Texas the right to sell in Texas over the factories of Boston 
 and New York? Yet you can . not do it. 
 
 I have read these letters in opposition to claims made here 
 that there are no complaints among the people, and that every- 
 thing is happy and serene and lovely throughout the limits of 
 our broad State. I could occupy much more time in giving 
 instances of discrimination in rates, but I feel that I am tres- 
 passing upon the time of the Senate to dwell longer on this 
 point. 
 
 In regard to the Democratic platform of which my corres- 
 pondent speaks, it has been stated here, and perhaps correctly, 
 that that platform does not mean a commission, and that the 
 commission feature was voted down at Dallas; but that proposi- 
 tion, fellow Senators, was only discussed in the committee on 
 platform and never came before the Democratic convention 
 itself. I venture the assertion that if it had arisen in the con- 
 vention it would have been adopted by an overwhelming vote. 
 I make another proposition : If this bill, with all of its 
 features that are complained of should be submitted to the 
 vote of the people of your State, is there a Senator who doubts 
 the result of the contest? Is there a district, or county, or 
 town in Texas that would cast a majority against it? I be- 
 lieve there are very few, if any. Then why should we falter 
 and be afraid? Why should we fear the destruction of these 
 great interests, when it is our duty to take the general princi- 
 ples of this bill, and upon them mold and perfect a measure 
 that will be fair and just to the railroads and fair and just to 
 the people? Why stab to death a principle of legislation sup- 
 ported by four-fifths of the people at large, whether you take 
 it by districts or counties, cities or towns. Why not amend 
 the bill, eleminate its oppressive features, but adopt the gen- 
 eral principle. 
 
 The Senator from Lamar states in his speech, reading from 
 Poor's Manual, quoted by Spoflford, that the average cost of 
 railroads throughout the country was $54,103 per mile. I am 
 told that the average assessment of railroads in Texas is $7,000 
 per mile, and yet when they come here before our committees 
 we are made believe that it costs all the way from $20,000 to 
 
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 ),000 per mile; and according to Poor's Manual, quoted in 
 the Senator's argument, the average is 54,000. While 1 do 
 not believe in oppressive taxes, at the same time it seems to 
 me they are getting on the tax rolls on a very moderate basis. 
 
 The Senator from Lamar also speaks of Texas, Arizona, 
 Utah, Mississippi,' New Mexico, Nebraska, Wyoming, Mon- 
 tana, Dakota and Washington Territory — that the railways 
 pay no dividends in those States and Territories, and there- 
 fore he concludes that a commission bill ought not to be 
 passed in Texas. There is Texas in that list without any com- 
 missian, various other States mentioned have no commission 
 — with the exception of Nebraska, I believe, none of them 
 have a commission — and yet they pay no dividends. Other 
 States with commissions pay dividends. That has notaing to 
 do with the argument. Commission law or no commission 
 law has nothing to do with paying dividends upon the stock, 
 and if it were otherwise I do not see that the capital stock is 
 entitled to any consideration at the hands of the Legislature, 
 because it does not represent- money paid into the construction 
 of the railroads in Texas, but that money is represented by the 
 bonds of the company. The original stockholder has long 
 since been closed out in the courts, by the process of fore- 
 closure, and the shares are merely useful in voting for directors 
 and controlling thereby the management of the road. 
 
 Another feature of this bill to which the Senator from 
 Lamar objects is that the rules and regulations to be enacted 
 by the commission, or the freight rates passed by the commis- 
 sion, shall be received as frima facie evidence in the courts 
 of the country that such rates and regulations are reasonable 
 and just. He seems to regard it as very oppressive that they 
 should be required to go into the courts with the burden upon 
 the railway companies of showing that they are not /ust, or 
 that different rates than those prescribed are just and reason- 
 able. I understand that the commission bills of some of the 
 States are not so liberal as this ; they say that these rules and 
 rates shall be conclusive evidence. We do not go that far ; we 
 say only prima facie evidence, and, if they are not reasonable 
 and just, then the railroad company has the privilege and 
 opportunity of disproving ih&i prima facie case. 
 
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 The Senator also contends that this legislation would affect 
 but very little of the tonnage of the country ; that only about 
 one-tenth of the total volume of traffic is done ivithin the 
 State. If it is so small I do not see why the railroads should 
 object to our regulating it, or why the. opposition should be 
 making such a fuss about it. But we are informed from intel- 
 ligent railroad sources that upon that one-tenth of the tonnage 
 of Texas — in other words, upon the local traffic of Texas — 
 these companies make up the loss which they sustain in the 
 transportation of the through business of the country (which 
 is run, they say, at a loss), pay the operating expense* and 
 all the fixed charges, including the interest upon their bonded 
 debts. I say it stands forth as an argument that something 
 ought to be done, if the labor, industry and products of Texas 
 are being taxed upon one-tenth of the tonnage to pay the loss 
 on nine-tenths, and to pay the fixed charges of the roads. 
 Here is the unjust discrimination we complain of. In order 
 to uphold the factories and industries of the North, nine-tenths 
 of the tonnage representing interstate commerce, is carried at 
 a loss, and that loss is made up on the one-tenth' carried Jrom 
 points within Texas to points within Texas. Had you thought, 
 when the pool assembles and makes a raise of ten per cent in 
 their rates, what that means? It nieans an additional two and 
 a half to three millions of dollars tax levied upon the indus- 
 tries and products of your Slate, more than enough to main- 
 tain the whole State government here for a year. And, yet, it 
 is complained that the paltry sum of $50,000 may be expended 
 under this bill. Oh, Economy, view thy worshipers ! 
 
 Let it be remembered that inside the ranks of the Demo- 
 cratic party the one great isgue was that of railway regulation, 
 and our platform, adopted at Dallas, spoke in no uncertain 
 tones u^on this subject. Those of us who mingled with our 
 people in the campaign and bear our commissions fresh from 
 them to this body, have not so soon forgotten the discussions 
 of the hustings, nor do we intend to prove recreant to the 
 trust reposed in us by our constituents. The sentiment of our 
 people is not to destroy railway properties but to build up and 
 encourage them — not to drive capital from the borders of our 
 State, but to invite it here — by a system of laws alike fair and 
 
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 just to the people and to tEe capitjilists. But why should not. 
 Texas protect herself, as other States are doing, from extor- 
 tionate freight rates, from- discriminations and inequalities and 
 injustice? Our right to do so stands upon a higher ground, if 
 possible, than that of any other State. We have not only 
 granted the franchise and the right of eminent domain, but to 
 many of the roads we gave a princely estate in lands, which 
 has served as the basis of their credit and enabled them to 
 borrow money and build these roads without the investment 
 of a great capital stock. Nor do I question here the wisdom 
 of ttfet policy, but I speak of it as evincing the unquestioned 
 propriety, aside from the power, of restraining the exactions 
 of railway managements. 
 
 We are met at the threshold of the question with the doc- 
 trine of "vested rights" — that having created these corpora- 
 tions, they have .outgrown the power that created them, and 
 have the vested right to go on in their exactions, and that no 
 power resides in the State to molest or hinder them in so 
 doing. I abjure all such doctrines, and will never believe in 
 them. 
 
 It seems to me if I were a representative of those great in- 
 terests, instead of resisting the demand for reasonable regula- 
 tion I would meet it half-way — instead of being swept away 
 by a whirlwind of popular prejudice I would make my peace 
 with the elements. I would treat with the people while yet 
 reason, conservatism and moderation sway in the councils of 
 the country. Do corporations expect to be allowed to go on 
 forever in the exercise of a separate existence, coequal, co- 
 ordinate with the State, and not subject to State regulation — a 
 sort of dual sovereignty? Such tin idea is absurd, yet that is 
 the logical result of the position assumed by those who ques- 
 tion or deny the right of State regulation of corporations. 
 Does anybody question the right of the monarchical govern- 
 ments of Europe to regulate railroads and all other corporate 
 investments within their territories? The only difference is 
 that in this country the people exercise the sovereignty instead 
 of a crowned head. 
 
 This thing must be settled some day, and it may be done in 
 a manner much more damaging to corporate investments than 
 
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 by the simple terms of an amicable, reasonable exercise ot the 
 State's power in the regulation of our railways, and I think it 
 would better behoove the distinguished gentlemen who have 
 these interests in charge to come and sit with us at our coun- 
 cil board and aid us in devising a reasonable and just system of 
 laws, fair to the people and fair to the corporations. But they 
 stand stubbornly and deny the power of the State to regulate 
 their properties, and we are confronted with the naked ques- 
 tion of who is the sovereign, the State or the railway com- 
 panies? In the face of such an issue we can not afford to falter. 
 Let the State assert the principle, exercise her power and 
 eliminate this question from the politics of the country. Then 
 the people and the railroads will meet on common ground of 
 mutual interest and transact their business upon terms of 
 equality and fairness. Otherwise, this question goes on 
 threatening us with monopoly on the one hand and commun- 
 ism on the other, and we desire to avoid both if possible. The 
 interests of the people and the railways are mutual, their 
 duties reciprocal. There should be ho conflict between them. 
 Harmony and mutual confidence ought to prevail, and that 
 which affects so vitally every true interest of Texes, should 
 not be a foot-ball in our politics. We should seldom recur to 
 it in legislation, and the commission, with proper restrictions, 
 is the best solution of the question for all concerned. 
 
 Senators on the other side speak eloquently of the era of 
 prosperity just ahead of us, of the influx of capital into our 
 State in the near future, of the inauguration of great enter- 
 prises, and of the spreading out and beautifying of the cities 
 and towns of Texas — all of which, they say, would be checked 
 by the passage of such la^ as we are now considering. All 
 of these are desirable and will come in their own good time, 
 and will doubtless increase the wealth of the favored few — 
 but they will add little to the permanent comfort, happiness 
 or prosperity of the great mass of the people, whose interests , 
 we should here seek to guard and protect. Old Rome once 
 ruled the world by the valor of her arms and the civic virtue of 
 her statesmen — the outgrowth of the individual manhood and 
 the sturdy independence of her common people. With the 
 building -of her palaces and her magnificent temples to the 
 
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 gods of her vanities, crouching servility supplanted the 
 prowess of her soldiery, and patriotism gave place to apathy 
 and national decay. RorSe and her glory were swallowed up 
 in the vortex of national excesses. A prosperous and inde- 
 pendent yeomanry — the untrammelled owners of fruitful farms 
 and happy firesides — assured of the full and free enjoyment 
 of the legitimate fruits of their energy and their toils — these, 
 Mr. President, are more to be desired as the support of a great 
 commonwealth than the paved streets and palatial residences 
 of great cities. 
 
 " Ye friends to truth, ye statesmen who survey 
 The rich man's joy increase, the poor's decay, 
 'Tis yours to judge how wide the Jimit stands 
 Between a splendid and a happy ]and." 
 
 I thank you, fellow Senators, for the attention given me, 
 and hope I have not trespassed too long upon your patience in 
 attempting to give you my views on the pending bill. 
 
 Reported stenograpycally by Mr. W. J. Jones, 
 
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.._ Cornell University Library 
 
 HE2771.T4 B88 
 
 Railroad Commission 
 
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