ARGUMENT
CHARLES ALLEN
before the
COMMITTEE ON CLAIMS,
in behalf of
ME8SKS. W. & F. STIANLY,
March 25, 1875.
P
\ tISC//
boston:
WRIGHT & POTTER, STATE PRINTERS,
79 Milk Street (corner of Federal).
1 8 75.
ARGUMENT
of
CHAELES ALLEN
before the
»
COMMITTEE OK CLAIMS,
in behalf of
MESSRS. W. & F. SHAKLY,
MARCH 25, 1875.
BOSTON:
WRIGHT & POTTER, STATE PRINTERS,
79 Milk Street (corner of Federal).
1 8 75.
ARGUMENT.
Mr. Chairman and Gentlemen of the Committee :
The present petition rests upon the general ground that
the petitioners, having entered into the largest contract, per¬
haps, to which the Commonwealth has been a party, and
having performed the same on their part, have encountered
such difficulties, and bee'n .subjected to such extraordinary
expenses in the execution of their work, without fault on
their part, and resulting on the whole in a heavy loss to
them, that they are entitled to call upon the Commonwealth,
in justice and fairness, to make up their loss.
Of the propriety of this mode of proceeding there can be
no doubt, and it is the only method open to them of obtain¬
ing relief. For this purpose, the legislature represents the
Commonwealth, and is the Commonwealth.
The attorney general urges upon you that the petitioners
have no standing here ; that if they have any such claim as
would be the subject of a suit at law or in equity against an
individual, then they should be remitted to the courts by a
special Act to be passed for that purpose, enabling them to
sue the Commonwealth ; and if they have not such a claim,
then they should not be listened to for a moment.
The legislature will not sanction that position. Neither
the Commonwealth nor just men deal in that manner with
persons with whom they contract. It is the boast of many
an honest man, that no one was ever compelled to sue him in
order to obtain justice. Fair-minded men do not say, and
the Commonwealth does not say, to those with whopa they
contract, " If you have any claim against me, sue it. You'll,
not get a cent unless you establish it in court, according to
2
the strictest rule of law." No fair man says that. Courts
are established as a final tribunal to settle matters which par¬
ties cannot settle among themselves. These petitioners hope
that there is no need of any other tribunal, to arbitrate
between themselves and the Commonwealth ; but that if their
petition is fair and just, it will be allowed without a lawsuit.
Recent History of the Tunnel Enterprise before
the Shanly Contract.
After General Haupt- left the work, in 1861, Governor
Andrew appointed J. W. Brooks, S. M. Felton and Alexander
Holmes as a board of commissioners to investigate the whole
subject of the Hoosac Tunnel enterprise, and report their
conclusions.
They employed Mr. Latrobe of Baltimore, an eminent
engineer, afterwards in the employ of the State ; Mr.
Laurie of Hartford, to make the necessary surveys, examina¬
tions and estimates of the cost ; a gentleman highly recom¬
mended by them for ability and integrity,* and deceased since
these hearings begun ; and Mr. Storrow, to go to Europe
and examine the European tunnels ; and in 1863 they sub¬
mitted a most elaborate report of their own, giving the
results of their practical judgment, as successful, emi¬
nent and accomplished railroad men, together with the full
reports of the several engineers whom they employed.
TheSe reports made a volume.
So far as science, skill, engineering ability and practical
success in great railroad enterprises were concerned, it
seemed as if the Commonwealth had enlisted in its behalf
whatever was most likely to lead to a favorable result. At
the outset, it appeared that every preparation had been made
which matured wisdom could suggest, and the State entered
upon the prosecution of the work with vigor, and lavish ex¬
penditure of money, and much hope and confidence, under
the superintendence and care of the three commissioners.
The work was prosecuted for a while under these commis¬
sioners, and then under their successors till December, 1868,
when the Shanly contract was made.
The result is known. The plans did not succeed. No
satisfactory progress was made. The public money was
3
spent with no adequate return. The whole enterprise bid fair
to be a wretched failure.
It is painful to go over the history of those years, as
exhibited in the public documents of the Commonwealth ; to
read the record of disappointed hopes, of baffled exertions, of
hopeless struggles for a result which could not be attained.
But some illustrations must be given. In May, 1866, the
minority of the finance committee, consisting of Henry L.
Pierce and J. W. Candler (House Doc., 1866, No. 403,
p. 9), say
" The actual results are such as might have been anticipated from
an organization so defective. Uncertainty in plans, ill-considered
theories and lavish expenditures without adequate progress, have
characterized the doings of the commissioners."
In House Doc., 1867, No. 30, Mr. Latrobe, the engineer,
shows that the expenditures under the commissioners on the
Tunnel, including the Deerfield dam, to November 1, 1866,
were $1,482,973.20. This did not include the amount
expended under General Haupt. The work then done was
131 feet of Tunnel called finished, at both ends—the size
then being only 14x19—and 5,823 feet of heading.
The legislative committee of 1867, in their report dated
in March, 1868 (Senate Doc., 1868, No. 102, p. 3), say
" The Committee feel that the progress and reputation of this
enterprise have suffered too much and too long from interruptions
and delaj's, arising from causes that good business judgment and
engineering skill should have lony since securely provided against."
This report presents a pitiful account of the delays and
difficulties which encompassed this work.
There was no unity of plan among the commissioners
themselves.
Mr. Shute withdrew, and in March, 1866, wrote a paper
explaining the causes of his withdrawal. This was a bitter
paper, and the House refused to receive it on account of its
personalities ; but it was afterwards published, and in it Mr.
Shute refers among other things tp "the absence of any com¬
petent engineer directly responsible to the commissioners,"
2
4
and speaks of "the present unsatisfactory and almost hope¬
less condition of affairs" (pp. 15 and 16).
Before this, the House had requested Governor Bullock to
furnish, for the use of the legislature, any communications
received by him in relation to the Tunnel, from any of the
commissioners or the consulting engineer ; but he declined,,
in a special message, in which he referred plainly to the dis¬
sensions which had e;xisted in the board. (See Blue Book of
1868, p. 335).
Mr. Hudson, another of the commissioners, made a report,
which was returned by the governor because it reflected inju¬
riously upon the manner and methods of arrangement adopted
by the superintendent of the work. But the House commit¬
tee afterwards recommended' its publication, and it was
printed. (See House Docs., 1868, Nos. 353, 359).
These things are referred to, for the purpose of recalling
the desperate condition of the enterprise at that time. With
a plenty of ability in different individuals connected with the
work, there was a lack of united and harmonious action,
which made everything seem hopeless.
Certain persons .had for years expressed the opinion that
the Tunnel never would be done, unless upon the contract
system ; but it was feared that no responsible .contractor
would be found with means and courage sufficient to under¬
take the whole work.
At the time of making the Shanly contract, the cost of the
Tunnel, without interest, as given by the commissioners, was
$3,002,176.57. (Senate Doc., 1869, No. 6, p. 11.) This,
in round numbers, is two-thirds of thé amount of the Shanly
contract. At the east end, the total distance penetrated was
only two feet over one mile, of which only 810 feet was then
supposed to be flnished ; at the west end, a little over three-
quarters of a mile was penetrated, the bulk of it, east of the
Farren arch, by a small heading only. '
The Work and Losses under the Shanly Contract.
Under these circumstances, Messrs. Shanly entered into
their contract, December 24, 1868, and commenced actual
work^upon'ithe headings in the spring of 1869, and thereafter
prosecuted it continuously to its completion. The contract
5
price was ■arrived at by applying the detailed bids of Messrs«
Shanly to Mr. Frost's estimates of quantities, and adding up
the items, as shown by the schedule introduced in evidence-
It was known at the outset to be a diñicult task, and one
attended with many risks. Doubts had been entertained by
many, whether any responsible* contractor would undertake
the work, without a very large margin of profit. Mr. Bras-
sey, the great English contractor (recently deceased), told
Mr. Storrow that " the enterprise has all the contingencies
and uncertainties of an untried project, and it would be
unsafe to undertake it by contract." (See Mr. Storrow's
report, p. 44.) The Brooks commission held the same
opinion (p. 56). But the ' contractors, undertaking to do
this work according to certain average rates, and not, as
seems to have been supposed, to maintain those rates during
each and every month, have pressed on, in spite of difficul¬
ties anticipated and unexpected, and have overcome them all.
They have not been conquered by the stringency of the
money market, through two seasons of panic, bringing wide¬
spread disaster and ruin to many other enterprises ; by nu¬
merous material obstacles developing with the progress of
the work ; by greatly increased expenses of working,
induced by causes beyond their control or power to antici¬
pate ; or by the rigorous exactions of the engineers, who
assumed to direct and control their work in methods not
deemed wise or economical by the Messrs. Shanly, with a
stringency increasing with the increased difficulties, and to
retain from them unjustly large amounts of their earnings,—
an element of expense and annoyance which the pride and
magnanimity of Mr. Shanly have prevented him from display¬
ing unnecessarily to the public view, but which nevertheless
he has felt most keenly himself.
In spite of all these, the end crowns the work.
At our very doors, the fine figure of Eobert Colly er be¬
comes an accomplished fact :—
" ' We want a railroad into Italy ' cries the world, ' and can go no
farther for this mountain ; what shall we do to find a way ? ' ' There
is no way,' heaven answers, ' except to your own persisting ; but if
you seek, you shall find ; if 5'ou knock, it shall be opened unto you.'
The knocking is with hard steel at the hard rock, and it is only a
6
question of persistence and of endurance ; then at last it has come to
pass that even' the heart of the unwilling mountain is won, and its
midnight sleep driven away ; and where for countless ages there
has been only an utter and unutterable silence, there is now the
mighty response of an answered prayer in the thunder of the loco¬
motive."
This has been accomplished through the persistence and
endurance of Walter Shanlj.
If in respect to one portion of the work there have been
différences of opinion between himself and the engineers, it
is unfortunately nothing new in the history of this great work ;
nor have they been greater than the differences which have
existed, and still exist, between the engineers themselves.
If he has not always followed in detail the course which
they deemed wise, he can at least point to a tunnelled moun¬
tain as the result of his own methods.
In the prosecution of this great work, the Messrs. IShanly
have lost a large sum of money. They have expended much
more than they have received. So far as they are concerned,
the Commonwealth has got its Tunnel for less than its actual
cost. Their hopes of reasonable profit under their contract long
since disappeared, and for the last three or four years it has
been simply a question, with how small a loss they could com¬
plete the work. They have completed it ; they have summed
up the figures ; and, after allowing for machinery and tools on
hand, find a net loss of $226,495, made up to January 1,
1875. No question is raised as to the accuracy of their book¬
keeping ; their system was apparently a perfect one. Mr.
Frost found all the items right which he examined. They
have exhibited a chart showing their expenses in detail.
Assuming that, on the whole, they have done the work with
reasonable economy, this shows the amount below actual cost
value at which the State receives the product of their labor,
skill, anxiety and risk, for nearly six years of contin¬
uous service. Of course no contractor would enter upon
such a piece of work if he thought there was any chance of
such a result. And now, looking back, what price would a
contractor ask, with the knowledge now obtained, for under¬
taking what the Messrs. Shanly have performed ? What
price would an engineer call a fair contract price ?
7
They do not ask the legislature to give them the fair and
honest money value of their work, reckoned by any such
standard as that ; but they would show you how it happened
that their reasonable expectation of profit was disappointed ;
how their expenses were swelled, without any fault of their
own, beyond all previous calculation ; how they have ren¬
dered beneficial service outside of the requirements of
their contract, which is fairly entitled to favorable considera¬
tion ; in the hope that, without too much reference to legal
or narrow questions or, considerations, it may be deemed,
under all the circumstances, more consistent with the charac¬
ter, the good feeling, the sense of justice of Massachusetts,
not to receive this work from the contractors at less than its
actual cost to them.
Their unexpected and increased expenses came from several
sources.
Failure of Deeefield Eiver Dam.
For the purpose of furnishing power to drive the machine-
drills, the Commonwealth had built a dam across the Deerfield
Eiver, and incidental works, at an expense of $258,000.
From seeing such a large expenditure, a contractor coming
here from abroad might naturally suppose that the water-
power could be relied, on as sufiicient. The Messrs. Shanly
were under this impression. But it proved insufficient. It
was a subject of comment in Mr. Frost's reports during the
summer, and is indeed a matter of common knowledge. The
Messrs. Shanly were obliged to build steam-works to supply
the deficiency of water-power, at an original cost of about
$18,000, and the extra expenses of driving the compressors
was about $10,000 more.
Great Storm of 1869.
Then came the great storm of October 4, 1869, unprece¬
dented in its violence and destructive power, and still fresh
in the memory of us all. Its effect upon the Tunnel has
been more than once described in official reports. The east
and west ends were both flooded, one man was drowned, and
there was much material injury, besides loss of time.
What should be done ?
8
In Helps's life of Thomas Brassey, it is said,—
" In the execution of any great undertaking, Mr- Brassey's anx¬
iety was that the work should be done quickly, and be done well.
The minor questions as to who should bear the expense of minor
matters, unprovided for by specific contract, he left to be settled
afterwards ; whereas many men, perhaps I may say most men,
would have insisted beforehand upon the question being settled as
to who should bear the outlay." (Page 16.)
From what was done, not only in respect to the damages
caused by this flood, but many other matters which have eome
before you, it is apparent that this description of Mr. Bras¬
sey is strikingly applicable to Mr. Shanly also.
Without a day's delay, without stopping to settle in advance,
or even to raise any question who should bear the expense,
he at once began the work of restoration at both ends of the
Tunnel.
The injury at the west end was caused in this manner :
The State had diverted the water of a brook through an
artificial water-course adjoining the Barren arch (which is the
west end of the main Tunnel), not in any manner connected
with the work of Messrs. Shanly, but wholly within the lim¬
it^ where Farren's work extended ; and had built the banks
of this canal so insecurely that the water broke through,
washed away a large amount of the material covering the
Barren arch, down into the space between the Haupt Tunnel
and the west portal of the main Tunnel, so that a dam was
made which set back the water and a large quantity of material
into Barren's arch, and the water flooded the Tunnel for the
whole length then constructed there.
This is thus described by the legislative committee of 1869
(Sen. Doc.', 1870, No. 58, pp. 9 and 10) ;—
" The progress of the work at the west end was seriously inter¬
rupted by the October freshet, which caused the water in the brook,
which formerly crossed the line of the Tunnel, but had been diverted
by the State into a canal, to break through the artificial bank into
the Tunnel, the water carrying with it great quantities of earth and
stone and entirely filling it in a few minutes, drowning one man and
the rest escaping with difficulty, and doing damage to the "work, as
9
is: statedv to an amount somewhat less than $ÍO,000. This caused
an entire suspension of the work at the west end, so far as progress
is concerned, for three weeks, and an. interruption to the usual
rate of progress for a longer period." (See,, also,. Senate Doc ,,
1871, No. 55, p. 15.) • .
Later in the month, the Messrs. Shanly presented a claim
for reimbursement to the governor and council, and in a com¬
munication dated October 21, 1869, setting forth their views
in detail, they say :—
" In thus promptly striving to protect the property of the Com¬
monwealth and to restore the Tunnel to the condition it was in pre¬
vious" to the storm of the 4th of October, the contractors assumed
no responsibility for the cause of the accident, or any liability for
its results. They had the means for prompt and efficient action at
their disposal and applied them in good faith and as good neigh¬
bors, and will continue to carry on the work of restoration till com¬
pleted, in the fullest confidence that, for the great expenses they
have incurred and the losses they have sustained, the Common¬
wealth will hold them harmless."
The executive officers considered that, as the breaking away
of the water injured both the Commonwealth and the Messrs.
Shanly, both parties should join in bearing the expense,
according to certain rules laid down by themselves.
To this the Messrs. Shanly replied at length, saying among
other things :—" They affirm that their neighbor, the State,
had no right to inflict injury on them in the first instance;
and, secondly, that having so injured them, it has no right
to make gain out of its own wrong-doing," as it would, by the
work of the contractors in restoring the property of the
State, and making the banks secure for the future.
The state officers did not, however, recede from their
position, and finally, on January 23, 1872 (not till then),
made a payment of $3,305.19, which Messrs. Shanly received,
making at the same time a written protest that they did not.
waive their claim for payment in full. Their statement
shows a balance of $9,812.17 due on this account, including
certain work done by their sub-contractors, Hocking & Hol-
brook, amounting to $4,059. The accuracy of the items is
not questioned.
10
Upon this plain statement of facts, it is not apparent what
valid reason there was then, or is now, for refusing to pay this
amount. If the State had built its canal securely, this injury
would not have happened. The loss arose wholly from the
failure of the State to make its canal safe. The banks built
and maintained by the State were iusufScient, and when the
storm came they gave way. There is no ground of equity
or of law on which the State ought to be exempted from
bearing this loss. The Messrs. Shanly were not bound to
take into consideration that the State might leave its canal
insecure.
The item for clearing out the Farren arch rests on the
same grounds. This was, clearing out the rubbish which
remained until 1874. It was the residue of the material
brought in by that storm of 1869.
At the east end, the railroad was washed away between
the Tunnel and Greenfield, so that it remained unused for
about nine months. This made it necessary to haul every¬
thing required for the east-end work over the mountain from
North Adams ; and it cut off the contractors from the use of
coal for their steam-engines, erected to supply the deficiency
in water-power. The weekly reports of Mr. Frost contain
constant references to the labors of the Messrs. Shanly in
restoring things to their former condition ; the delays and
difficulties from anchor-ice and from the lack of coal. They
need not be cited from, in detail, because the fact of the loss
is not questioned. They afford a vivid picture of the troubles
of that autumn and winter, resulting from the great flood.
The losses to the Messrs. Shanly at the east end from this
cause, are estimated at' $9., 122, as shown by the statement
furnished.
In judging of this matter, you are not without the advan¬
tage of a precedent established by two former legislatures.
The railroad between Greenfield and the Tunnel was under a
lease to the Vermont- & Massachusetts and Fitchburg Kail-
road companies, with covenants making it their legal duty to
restore the railroad, where it had been washed away. The
attorney general argues that the Commonwealth was legally
bound to make such restoration. Such was not the opinion
11
entertained by his predecessor. The opinion of the attorney
general of that time to the contrary, is found in House Doc.
of 1870, No. 323, pp. 6, 7, and after insisting that no legal
duty rested upon the Commonwealth, contains in conclusion
the following :—
At the same time, this construction, which I think is required
by the application of the rules of law, seems to'me in this instance,
as in others where it has sometimes been applied by courts, to be
harsh and oppressive upon occupiers of property belonging to
others ; and as a matter of justice I quite agree with the report of
?dr. Appleton, submitted to me, that the loss fairly traceable to the
unusual and extreme violence of the storm, should be borne by the
Commonwealth, it probably not having been in the minds of the
parties at the time of execution of the lease."
These railroad companies would do nothing towards the
work of restoration, until after legislation by which the State
assumed the great bulk of the expensé ; and by the statute
of 1870, chap. 252, and 1871, chap. 153,' allowances were
made under which they received a little over $140,000 in
money, and an abatement of nine months' rent for the rail¬
road. This action was taken after written reports by the
attorney general, and by one of the railroad commissioners,
and after an investigation in the executive department, as
well as before different legislative committees.
Thus, the legislatures of two successive years have recog¬
nized the justice of relieving the Vermont & Massachusetts
and Fitchburg Eailroad companies from their obligations
under their contract with the State, and have made good to
them the whole damages traceable to the unusual and extreme
violence of this storm, upon the line of the Troy & Greenfield
Eailroad. Is their position in relation to this enterprise so
much more meritorious than Mr. Shanly's, that the Common¬
wealth, in the face of the world, can be willing to say :—" To
our own railroad companies, with whom we have contracted,
we will make good their loss, to the amount of $140,000 in
cash, and abatement of nine months' rent. To these contract¬
ors, who have come here from another country, trusting to
the honor and good faith of Massachusetts, and who have
rescued this enterprise from the almost hopeless discredit
t
12
into which it had fallen, and made it respectable, we will not
make good their loss of $18,000."
Water Difficulties in Central .Section.
The great and overshadowing element of increased expense
is found in the unexpected influx of water in the central shaft
workings, and the action of the state authorities in requiring
the Messrs. Shanly to undertake to cope with it, contrary to
their own judgment.
This influx of water was unexpected. The opinion was
generally entertained that no serious trouble in tunnelling
the mountain would be met with from this source. President
Hitchcock, in 1854, gave an extended description of the
geological characteristics of the mountain, summing it up by
declaring that he thought the Tunnel would be found dry, after
penetrating a considerable distance from the surface, and
gave his reasons for k. This opinion was generally followed.
The commissioners appointed by Gov. Andrew, say :—
" Our estimate [of cost] will be based upon Pres. Hitchcock's
opinion, the highest attainable authority, that the quantity of water
to be met with, except in the secondary formation at the west end,
will not be so large as to be seriously troublesome." (Page 54.)
Mr. Latrobe likewise founded his estimate of the cost of
the Tunnel upon the same assumption.
Without pausing to dwell upon other opinions which might
be cited, the deliberate judgment of the official representatives
of the legislature, at the time when this contract was entered
into, is found recorded in the report of the joint committee of
1868, on the Hoosac Tunnel (Sen. Doc., 1869, No. 61, pp.
12, 13), in these words :—
" Beyond the [west] shaft, all the roch is self-sustaining, and will
be found so throughout the mountain. As Prof. Hitchcock has said
in another connection, ' it would be a thing unheard of in geology,
were it otherwise.' The chance of a great influx of water during
further progress of the Tunnel, is very remote and improbable, and
however great it may be, it will discharge itself at either end by
natural flow. . . . The proofs derived by. actual inspection at
the east end, central shaft and west end are morally irresistible
13
in forcing the conclusion that progress at all points is to depend
hereafter solely on the greater or less hardness of the material, and the
greater or less efficiency of the means that may he devised for break¬
ing it up."
This they emphasized by italics, as if to show that no doubt
Was to be entertained.
Messrs. Shanly shared in this opinion, and the character of
the rock throughout the whole 445 feet sunk by them, and for
a short distance of tunnelling to the westward from the shaft,
was a clear confirmation of it. Everything had been made
ready, in expectation of rapid and continuous progress. The
sides of the central shaft had been trimmed,.the machinery
put in perfect • order, excavations by hand-work had been
made sufiicient for the use of the large carriages for machine-
drills, and these had been lowered and put in place for the
westward work. All this having been done, iu March, 1871,
the water was struck.
At this date, they had already made up for the loss of time
consumed at the outset in the work of preparation in the east
and west-end workings, so that both were a little further
advanced than the contract required ; and they were now
proceeding at the rate of ten per cent, in excess of the con¬
tract rates. Mr. Philbrick himself testifies to this. Their
pneumatic drills, already ordered, and to be applied as soon
as the requisite room should be obtained, were soon to give a
material increase to this excess. Coming east from the cen¬
tral shaft, there was no reason to doubt that the same
advanced rate might be maintained. This was the situation
when the water was first struck.
Mr. Shanly's description of the subsequent difficulties from
water has been laid before you by himself, in the following
* written document.
[Mr. Shanly's statement, printed on page 19 of the testi¬
mony, was here read.]
Mr. Frost's description of the same, for 1871, may be
found in the Sen. Doc.,' 1872, No. 250, p. 10.
The .difficulty from the great influx of water was of the
gi-avest description that can be imagined. In November,
1871, Messrs. Shanly had provided pumping power for
14
raising 200 gallons of water per minute through the eentral
shaft. They represented to the governor and council the
danger that would be incurred in seeking to force the heading
westward. Mr. Crowell, who is described by Mr. Philhrick
as the active member of the council committee at the time, is
called by the attorney general, and testified to you in these
words :—
" I think we concluded that it was not perhaps wise for us to insist
upon his pushing the work west from the central shaft. . . . My
impression is now that Mr. Philhrick said something to me to the
effect that with more pumps there the water might be removed,
and they could proceed with the work ; but it was questionable, I
think, with the council at that time whether he would not find more
water, and more than he would he able to remove with another set of
pumps, even."
It seems, however, that Mr. Philbrick's view finally pre¬
vailed ; and the order was given (contrary, as it would seem,
to the judgment of the council, and reversing the conclusion
that they had originally arrived at) that the work must be
resumed'at all hazards. There was no alternative for the
Messrs. Shanly; so they recommenced, and had made about
127 feet of progress, when the increase of water was so great
that they stopped again.
It was now obvious that the water was likely soon to over¬
power the pumps. The flow was already at the rate of about
140 gallons per minute. To Mr. Shanly's mind, it was a
plain proposition, that to press on in the face of this was
attended with extreme danger. It seemed to him that no
competent engineer could come to a different conclusion.
But on the 2d of March, 1872, Mr. Frost sent to them a
letter containing the following imperative order :—
" I have to notify you of the conclusion of the executive council,
that you must be required to resume at once the progress at the head¬
ing westward from the central shaft."
It has been made known, in the present hearings, that Mr.
Frost's order was written in consequence of a letter from
Mr. Philhrick, saying that the governor and council were
"unanimous in the opinion that the contractors should be
15
required to resume work on the western heading at once, and
prosecute that point, as well as the enlargements both ways,
as required by the contract."
Mr. Frost testifies to you frankly that, at the time of giving
this order, he thought the wise way of proceeding would be,
not to undertake to make progress westward until more
pumps had been provided. He was questioned closely upon
this subject by a member of the Committee (Mr. Lovering),
and was as little equivocal in this opinion as in any that he
gave to the Committee. In this, as in some other matters, it
is probable that the opinion and advice of the consulting engi¬
neer were followed, instead of his own.
The written order, however, was distinct and imperative,
to resume work on the heading at once, without waiting for
pumps, or anything else.
Mr. Shanly appealed to the governor and council for a
reversal of this order, and he has laid before you, and fur¬
nished to the attorney general, his memorandum, made at the
time of the hearing on that occasiqn. It is as follows :—
" March 14, 1872. Central Shaft — West Heading Question.—
Hearing before governor and council to-day. Mr. Allen, as counsel
with me, the hearing being to discuss the question of driving west
heading as ordered by Frost's letter of 2d inst. Mr. Philbrick
insisted that a second large pump should be put in, and I showed
the utter impossibilitj' of getting such a pump at work in time be of
any service in advancing the completion of Tunnel, and that the
putting of it in must inevitably retard the work eastward, on the
progress of which the due and timely completion of the Tunnel
really hinged. I also tried to convince the council that the forcing
of the west heading, in the face of such threatening of more water,
was to run the risk of being wholly driven out of the shaft, which,
' if once filled with water, would probably ndver again be pumped out.
The driving of the heading, at all hazards, was, however, insisted
on, water or no water ; but the new pump question yielded. I also
said, that, in order to drivé the heading at all, it was absolutely
necessary that it be dropped from top to bottom level, and driven on
an upward slope from the starting-point below. That to accomplish
this change would take till about 1st May. Agreed to.
" (Signed)
W. S."
16
The heading was accordingly dropped from the top to the
bottom level, and in May, in an advance of only 17 feet,
there was an increased flow of about 60 gallons per minute
(not 100, as Mr. Philbrick said), which was more than suffi¬
cient for the capacity of the pumps. The mining was of
course stopped, the hoisting of rock discontinued, the hoist¬
ing cages equipped with baling tanks ; which, in the words
of Mr. Frost, given in his report of May 24, 1872, was "the
only present action consistent with reasonable security " ; the
regular flow being then, as stated in the same report, a little
more than 205 gallons a minute. Preparations were also
made for putting in new pumps of 7^ inches in diameter.
In this condition of things, an order in council was passed,
June 14, 1873, as follows :—
" Whereas, upon a special report of Edward S. Philbrick, engineer
on the Hoosac Tunnel, made upon the return for the month of May,
1872, that the Messrs. W. & F. Shanly, contractors, have not per¬
formed their contract in the progress of the work, the certificate.
No. 19, which would otherwise be due, be withheld until further
ordered."
This was sent to the Messrs. Shanly, with a letter saying that
Mr. Philbrick had reported that the progress of the work west
of the central shaft was not satisfactory ; but oflering to him
an opportunity to be heard, if he desired it.
Upon this, Mr. Shanly made all his arrangements for
abandoning the work, if, upon a hearing before the governor
and council, the order should be insisted upon. He came to
Boston, and his memoranda of the hearings, made at the time,
have been laid before you, and furnished to the attorney
general, and are as follows
" June 20,1872. Council Meeting, Boston. Central Shaft.—Went
before the governor and council, by request, to explain reasons for
having discontinued working west from central shaft. Stated that
the increase of water was so great as to require our whole, power of
engines and pumps to keep it down ; that it would require at least
four months to erect new power; and that during that time but
little work could be done eastward, as the hoisting machinery would
be mostl}^ engaged in assisting in getting in the new pumps ; and
also, if we continued to work east, as at present, we might reasonably
expect to have the headings meet in six months, when no further
17
pumping would be necessary. Mr. Philbricb, who was present,
admitted that it was now too late to think of new pumping
machinery, and that it would be better for us to abandon west
workings, keeping all the force east, so as to let the water off as
soon as possible. He gave it as his opinion, however, that we
could not finish the work within the time.
" The council will meet again on Fridaj'^, 28th inst., to hear our
statement as to what we were doing and of the progress we think
can be made, showing the very earliest time the work can be com¬
pleted.
» (Signed) F. S."
" June 28,1872. Hearing before Council. Central Shaft Question.
—Had interview with governor and council on subject of central
shaft and suspension of west heading work. Fhilbrick present.
Had previously had a private interview with the governor, and ex¬
plained to him the great risk of filling the shaft with water if the
driving of west heading be persisted in ; also stating that the
filling of the shaft means the indefinite postponement of the com¬
pletion of the Tunnel.
" Repeated same statement before council, and in answer to ques¬
tion from governor as to what progress we can make without driv¬
ing westwards from shaft, I stated that the most'we can promise
from three headings would be what the contract requires from the
four headings,—385 feet per month,—and that our progress hence¬
forward till end of year would be from 370 to 385 feet per month ;
that we fully expect to- be cut through between east end and central
shaft by 31st December, and that be3'ond that time we hope to make
from 250 to 280 feet per month on the two headings west of shaft.
Stated the whole distance now to penetrate at about 5,300 feet, of
which 1,400 was east and 3,900 west of centre. Also showed that
to attempt to put in more pumping machinerj' would simplj' be to
delay the eastward work, and that even then it would not be possible
to get another pump into working order in time to be of anj- service.
" Mr. Fhilbrick ceased to urge the pump matter, and turned his
arguments to show that, with the progress promised, the Tunnel
could not be finished by 1st March, 1874. In figuring up the period
for joining the easterly workings, he fixed the 15th January, instead
of 3l8t December, as calculated by me, and said he considered that
eight months after joining of headings would be required for com¬
pletion of work east and west.
" After a full hearing of the matter, council decided to adopt my
views, and allow us to proceed on the three headings, and without
putting in other pumping machinery.
" (Signed) W. S." '
18
Mr. Philbrick's report of June 13, 1872, has also been laid
before you, and no one can read it without the feeling that
he hardly thought it an even chance that the work could go on,
even with a third pwnp, as large as the largest of those already
in.
Mr. Frost, also, in his report of June 10, 1872, said that
" no advance westward can reasonably be undertaken unless
further means for removal of the water shall first be pro¬
vided."
These matters have thus been detailed, in order that it
may be seen how the prospect appeared at that time. And
in this aspect it is entirely nnimportant whether it afterwards
proved that there was a largely increased influx of water or
not. As Mr. Philbrick said in his report, the condition of
"the rock could not be ascertained before piercing it, and
after piercing it it would be next to impossible to check the
flow from the newly-cut seams. If new pumps should be
put in, and shotild be overtaxed by new water, the mining
would have to stop again.
This, then, was the situation. It was impossible to ad¬
vance westward without new pumps. To provide new pumps
would take several months. If provided, the chances were
that they would be useless.
It so happened, however, that experience afterwards proved,
as a matter of fact, that the fears of Mr. Philbrick and the con¬
viction of Mr. Shanly were both well founded. The steady
flow of water was greate'r than the capacity of two pumps of
the largest size used or contemplated, and the occasional flow,
for a day or two, was immense. Measurements were not taken
regularly (so Mr. Shanly and Mr. Frost both say), but the
testimony of Mr. Shanly to finding a large cavern of water
on the 21st of June, 1873 (five months before joining the
western headings), which yielded over 500 gallons per minute
for a day or two, is explicit, he having made a memorandum
of it at the time ; and Mr. Frost's testimony is substantially
to the same effect. •
Mr. Shanly has also given a statement based on the actual
progress made afterwards, which shows what would have
been the progress of the work if his plan had not been inter¬
fered with. The opening east, which Mr. Philbrick, in his
19
report of June 13, 1872, thought could not be made
before February 1, was actually effected on the 12th of
December, and would have been in the early part of October.
Drainage being thus obtained, the westward headings would
have been joined early in September, 1873, or less than three
months after the time contemplated in the contract, if regular
rates of progress had been made.
The loss to the Messrs. Shanly in consequence of the order
of November, 1871, is set forth in a detailed statement of
items which has been submitted to you, and amounts to a
little over $217,000. This is exclusive of the cost of putting
in the large pumps, which was just under $56,000.
This result, so disastrous to themselves, and so injurious
also to the Commonwealth, justifies them in the opinion
which they have always entertained, that the mildest criticism
that can be passed on the course pursued by the engineers is,
that it was a gross blunder. Fortunate is it for the reputa¬
tion of Massachusetts, as well as for its business interests,
that a contractor was in charge of that work with intelligence
enough to appreciate the situation, and nerve enough to
withstand these engineers to their face. The Commonwealth
was spared the last and crowning discredit of seeing the
central shaft filled with water, from -obedience to an official
order which could not be understood otherwise than as an
order to continue the wéstward workings, given in the face
of an official report that the work could not be done.
TJneeasonable Eequieements oe Engineers. ■
In the next place, there has been a strictness of con¬
struction on the part of the engineers manifesting itself in
respect to many different mattçrs of detail, some of which, in
his opinion, undoubtedly furnish to the Messrs. Shanly a just
legal claim for compensation for extra work, and others have
at least subjected them to unnecessary annoyance and ex¬
pense without any benefit to the Commonwealth. Several
illustrations may be given :—
Trimming.—One subject of question that has arisen between
the contractors and the engineers, has been in respect to the
trimming of the Tunnel. The Tunnel was to be made of a
4
20
certain prescribed size, and it was expected that the rock
wonld be self-sustaining, and that there would be no water in
any troublesome amount, so that the contractor might in
working approach very closely to the prescribed size, with¬
out being obliged to excavate a greatly increased amount.
The language of the specifications prepared and put out by
the Commonwealth, and serving as the basis upon which all
the bids of contractors were made, was as follows :—
" As the rocTc is sufficiently hard to prevent apprehension from falls
and slides, estimates will be made only of quantities within the
exterior lines prescribed for the Tunnel." (Page 3.)
This is what the Commonwealth said before making this
contract :—
On the 25th of April, 1868, General Haupt was applied to
by eighty-three members of the legislature for information as
to the best manner of completing the Tunnel. His reply to
this communication has, therefore, a character almost ofiicial.
In giving the terms and conditions on which a contract might
be made, he says :-r-
" The manner of finishing the Tunnel should be accurately pre¬
scribed in the contract, so as to prevent unreasonable exactions
from the contractor. An engineer could absorb any profit, however
large, by requiring excessive trimming. . . . As a Tunnel
through such a rock as that of the Hoosac must necessarily be rough,
and cannot be made to conform exactly to any prescribed dimen¬
sions, the amount of inequality that will be admissible should be
distinctlj' recognized in the contract, and great care should be
observed to leave no room for misunderstanding,' for the courts
afford no means of redress to the contractor if differences should
arise, although they are open to the State." (Page 15.)
Unfortunately for Mr. Shanly, he had not seen this caution
of General Haupt before making his contract ; and if he had
seen it, he would have been slow to believe that in practice
engineers would put so extremely literal a construction upon
the words of a contract as has been done in this case. He
made the mistake of supposing that his contract to excavate
a Tunnel of a prescribed height and width, and according to a
prescribed section, would be satisfied if he should excavate a
21
Tunnel which on the whole, in all its parts, should be sub¬
stantially larger than the area of the section prescribed, even
although a minute examination might detect occasionally
points of rock projecting an inch or more in portions of the
section where no injury could arise from them. This was a
grand mistake. Such was not the spirit or the construction
of the engineers. The contractors had undertaken to make
*a Tunnel of a certain size and section. No matter how large
the general excavation might be. The contract, they say, is
not complied with, unless there is a literal compliance down
to the minutest measurement. There has been, they say, an
increase in the size of grain cars since this contract was made,
and, therefore, it was perhaps considered just that the con¬
tractors must submit to a construction that otherwise would
have been monstrous. That no injustice may be done to
anybody, Mr. Philbrick's own words of July 13, 1872, shall
be given :—
"We can't, with safety, allow them [the new grain-cars] to pass
through the Tunnel, unless every inch of the established form is
' excavated. Mr. Shanly says, and Mr. Frost admits, that the former
has complied with all the latter's directions in regard to trimming.
This seems to indicate a lack of directions ; and, in conversing with
Mr. Frost, I am sorry to say, that he does not appear to appreciate,
as I do, the importance of urging the contractors at once, and per¬
sistently, in this particular."
To the common mind, neither the need nor the justice of
so rigid a construction was perceptible ; and, accordingly, it is
not strange that Mr. Frost did not appreciate the importance
of it, nor is it probable that he, .alone, would have adopted it.
But Mr. Philbrick's counsels prevailed, and were executed in
this wise : frames, or forms, were constructed, the inner lines
of which were of the exact section prescribed for the Tunnel,
and placed at distances, usually of twenty-five feet apart, and
observations were taken with candles, and literally every pro¬
jecting inch was marked, and was actually removed by the
Messrs.. Shanly, even on the very roof of the Tunnel. For
this purpose, new scaffolds had to be erected and new blasting
done. The whole Tunnel was gone over in. this way, and
was, in effect, sand-papered down to such a degree of smooth-
22
ness that there was no projecting inch within the lines of
section prescribed in any part of the Tunnel. The contract
required it, as was supposed, and a precise fulfilment was
exacted, by withholding large sums of money till it was
done,^—down to the last inch. In this way, an amount of
detailed trimming was got out of Mr. Shanly, that subjected
him to' an expense of $110,000.
You thus see that these engineers were faithful and strict, '
in getting out of INIr. Shanly every particle of work that a
strict construction of his contract could be made to include.
Having done this, he naturally supposed that he had fulfilled
his duty as to the excavation of rock.
Taking down loose rock.—He was mistaken. The Tunnel
must be gone through with once more. The engineers then
proceeded to examine and see if there was not some more
rock that ought to come down. The rock was not of that
character that had been described in the specifications which
had been issued to Messrs. Shanly. These specifications had
declared, in effect, that as the rock would be self-sustaining,
no apprehensions were felt from falls or slides, and there¬
fore no estimates would be made or állowed for any excava¬
tions outside of the exterior lines jsrescribed for the Tunnel,
because the contractor would not he called on to make any
such excavations. But now it was found that the rock in
certain long spaces was not self-sustaining, and apprehensions
were felt from falls and slides, and it was necessary to make
excavations outside of the exterior lines of the Tunnel. Who
should be held responsible for this changed state of things ?
Nobody is here to deny that the Tunnel should be made safe.
This should be done, of course, no matter how much rock is
to come down. But the question is, whether this work, now
found necessary, but which the Commonwealth at the outset
said, in express terms, would not be necessary, and there¬
fore should not be paid for, shall be done at the cost and
expense of the Messrs. Shanly. Your attention has been
called to the language of the specifications irpon which the
bids were made. Now, please attend to the language of the
contract itself. The contract says,—
23
" The size and general description of the work," and other par¬
ticulars, " are set forth in the schedule hereunto appended, which
constitutes a part of this agreement." (Page 1.)
" The engineer or engineers -of the Commonwealth shall give the
lines and grades of the Tunnel, and the lines of the central, shaft,
and he responsible therefor." (Page 2.)
The size of the Tunnel is to he as follows :—
" In rock, without arch, 24 feet wide in the clear ; 20 feet high in
the clear," and larger where arching is required. (Page 6.)
There are repeated references to "full-size Tunnel," "full-
size section of Tunnel," etc., meaning the size just mentioned.
The estimated amounts are all based on a Tunnel of the size
mentioned.
The contract then says,—
" Estimates will be made only of quantities within the exterior
lines prescribed for the Tunnel." (Page 7.)
"Any material detached by blasting or otherwise, outside of
said lines, must be removed by the contractors without charge."
(Page 8.)
The contractors are only bound to remove what is de¬
tached; and detached means "severed, disjoined, separated,
disengaged, .parted from." It does not mean loosened.
As if to show still more precisely what was meant, the
contract recurs to this subject further on, and says,—
" Estimates will be based upon quantity of material which lies
within the line of section prescribed bj' the engineer or engineers ;
and any material falling from outside of these lines, whether de¬
tached by blasts or falls, must be removed by the contractor without
charge." (Page 10.)
That shows what the contractors are to remove without
charge. It is such rock ' as is detached, and falls. If they
are called upon and compelled to go outside of the exterior
lines prescribed for the Tunnel, and take down rock which is
loose, but which nevertheless stands, and to remove it from
the Tunnel after they have taken it down, the question is,
whether this also shall be done without charge. Is it not
plain that the express mention in the contract of the duty of
24
removing without charge material which is detached and falls
from outside those liues, conveys by direct implication the
idea that material which is not detached, and does not fall,
hut has to be taken down by blasting or otherwise, and then
removed, will form a proper subject of charge as for extra
work,—work not contemplated in the contract?
Can any argument make it plainer ? It rests on the same
ground that was last year recognized hy the legislature in
respect to the duty of laying a hrick arch. The contract
provides that the contractors should lay bricks to an amount
not exceeding 4,500,000. The argument against the con¬
tractors was, that they must lay all the arch that might be
found necessary, even if it were the whole length of the Tun¬
nel, and the cost were to be reckoned by millions ; and they
were accordingly called upon to lay a long distance, after the
4,500,000 brick had been used. They resisted this call,
and came to thé legislature, and the legislature did not insist
upon that construction of the contract. Now, what was the
ground taken by the engineers ? They said, the contractors
were bound to do everything that was required to be done,
in order to leave the Tunnel ready for use, be the same more
or less ; no matter what may be found necessary, the con¬
tractors must do it, and the attorney general declares before
you that he relies on the same ground now. But the contract,
in its true construction, requires nothing of the sort. Mr.
Bartlett gave a legal opinion to this etfect last winter, which
was published. The contractors undertake " to do and per¬
form all the work necessary to complete the Hoosac Tunnel,
in accordance with the schedule hereunto appended." (Page
1.) And the clause at the conclusion of the schedule holds
them to "the full and complete performance of the entire
work of the completion of the Hoosac Tunnel to he per¬
formed under this contract."
Take those two general provisions, with which the contract
opens and closes, and examine them in connection with the
other parts of the contract, and you will see that these con¬
tractors, upon a just and fair construction of the language
used, do not bind themselves so far, that, being allowed to
estimate only for laying 4,500,000 of brick, they must go on
and arch the Tunnel from one end to the other if safety shall
25
be found to require that to be done, and at a cost of $2,000,000
to $2,500,000, as the attorney general contends; nor so far
that, being allowed to estimate only for excavating rock
within a certain area, and for removing what shall, be de¬
tached and falls, they must go on and take down and remove
a large amount outside of that area, if safety shall be found
to require this to be done. Such a contract would be a one¬
sided one. The advantage would all be on the part of the
Commonwealth. The legislature of last year, without going
nicely into the legal question, did not insist upon such a con¬
struction. They gave it up, and assumed the extra arching
themselves. The same principle is applicable now.
It may well be contended that it is plain, as a matter oí
law, that the Commonwealth has no right to insist upon such
a construction, and one might appeal with great confidence
to the legislature on this ground alone. But it is also sub¬
mitted to the practical judgment of every intelligent man,
that even if the strict rule of law were otherwise, these con¬
tractors might fairly consider that this work was outside of
their duty ; that business men generally would so consider
it ; and that if the matter be merely questionable, the legis¬
lature would not wish to force contractors, in a doubtful
matter, to submit to an adverse decision, with no right of
appeal. ■
The correspondence shows that the requirement of the
engineers was that the contractors should remove from the
roof and sides the slightly loosened slabs or masses, which,
not threatening any danger in the present use of the Tunnel,
would evidently impair the measure of probable security
which belongs to entire completion ; and this duty, so re¬
quired, involved the necessity of further blasting. These
are the words of Mr. Frost, in a letter which was referred to.
The correspondence is long, and shows cleaidy the explicit
orders for the work, the remonstrances and protests from the
contractors, their final performance of the work under pro¬
test, and the subsequent recognition of it as extra work to
the extent of $5,000, which wás paid. The amount unpaid
is about $22,000, and Mr. Frost, who has examined the
items, candidly admits that this fairly represents the cost of
the work, and there is no question as to the amount.
26
Indeed, it would be doing injustiee to Mr. Frost not to
say, that in respect to the details of all of these items, after
full and critical examination, he declaves, without evasion or
criticism, his approval of them all.
Enlarging Tunnel 810 feet from East Portal.—The
contract says, in referring to the east section, "a portion of
which has been enlarged to the full height of 20 feet and the
width of 24 feet, as proposed." It thus appears, by the eon-
tract itself, that the Tunnel had been made of full size for
some distance. How much? The distance is fixed by official
documents beyond dispute.
The Commissioners' report. House Doc., 1869, No. 192,
p. 28, in the paragraph which was omitted or suppressed
in reprinting "that report last year, says: "At the east end
the distance excavated is 5,282 feet, and the Tunnel is of full
size from its portal to a point 810 feet west."
Mr. Frost's report, appended to that of the Commissioners,
says : " The Tunnel has been opened out to full size during the
past year for a distance of 810 feet from east portal."
(Page 58. ) And again, on page 67, he says ; " Of the first half
mile of this distance [at the east end] a length of 810 feet is
entirely completed." This work was done under Mr. Frost's
own superintendence, and at the commencement of the Messrs.
Shanly's work, as he admits himself ; and while these matters
were fresh in mind, he furnished them with a set of diagrams
showing'what work they were to do, and these diagrams began
at a point 800 or 810 feet west from the east portal, and Mr.
Shanly says he gave oral assurances to the same eifect.
Under tliis state of things, the Messrs. Shanly might
reasonably suppose that they had no work of excavation to
do for the first 810 feet. But they were again mistaken.
Notwithstanding the express language of the contract that a
a portion had been made of full height and width ; notwith¬
standing Mr. Frost's official statements that the Tunnel had
been entirely completed for this 810 feet ; notwithstanding the
approval of the Commissioners of that part of the work as a
sul)stantial completion within the just meaning of the con¬
tract ; notwithstanding the diagrams ; the engineers, finding
upon applying their careful scrutiny that there were a few
27
points of projecting rock in that'portion of the Tunnel also,
sought to strain the contract so as to get the work of removing
those, points done for nothing. .
Now, this was a most disreputable piece of business, such
as no man in his private transactions could do, hoping to
maintain his credit as a just man. But what was, in fact,
done? March 22, 1871, Mr. Frost ordered the Messrs. Shanly
to commence the work of Tunnel enlargement from the
jportal. May 6, he repeats this order with a threat of with¬
drawing sums from the estimates. May 8, the Messrs.
Shanly reply, saying :— *
" East, end, from the portal for 800 feet, we bold that we have no
work to do till we come to lay the track, that part of the Tunnel
having been handed over to us as finished work."
Mr. Frost's reply. May 17, peremptorily ordered him to
proceed with the work " in the east end of the Tunnel, com¬
mencing ivith the portal," and saying a set of frames would be
furnished for his use. As Mr. Shanly still did not recognize
his duty to do this work, Mr. Frost, on the 5th of August,
1871, writes to him as follows :—
" In your letter of 8th Ma}', you set forward the claim that, from
portal at east end for 800 feet in, you have no work to do, 'that part
of the Tunnel having been handed over to us as finished work.'
I have not any such understanding, and the record and memoranda
in my office would seem to show very clearly that your work com¬
mences at the east portal of the Tunnel. The contract mentions
about 860 feet at the west end of the Tunnel as already completed by
B. N. Farren, forming part of the 931 feet which was reserved only
your contract as to excavation and brick-work.- It is very desirable
to have the fullest understanding as to such points. I will suggest
the possibility of your having had in mind, at moment of writing,
the sentence above quoted, without distinctly recalling its context."
The Messrs. Shanly replied, August 7, reiterating their
views, consented to do the work, but saying, " we must hold
that in equity we are entitled to be paid for it extra to the
contract." The cost of the work was $3,582.
Now, when it is remembered that Mr. Frost was speaking
of work done under his own superintendence, and pronounced
28
entirely completed by himself in an official report, the imagi¬
nation runs wild in endeavoring to understand what he was
thinking of in writing that letter. Would any one of you,
without the evidence before you of documents made at the
time, suppose \ij)ossihle for an engineer of the Commonwealth,
intrusted with the superintendence of a great work, to put
himself into so ridiculous a situation as that? But that is not
the worst of it. The governor and council, who in the hurry
of their concluding days of official service could not have
time to examine these matters minutely, and who, very likely,
on referring to the reprint of the Commissioners' report, were
misled by the suppression of that important paragraph (which
suppression is not yet explained), have been allowed to take
a position which it woiild seem that they coidd not have taken
if aware of the actual facts. Mr. Frost thinks he informed
them fully. But it is not to be supposed that they would
have rejected this item, if they had understood the matter as
you do now. Nor will the legislature readily adopt the view
urged by the attorney general that no matter if the State did
represent, in the schedule appended to the contract, that a
part of the Tunnel was already done, yet they are not bound
by it, and the contractors must, nevertheless, be held to do
the work without compensation. No one of you would take
such ground as that in a private transaction.
Grading Embankments at East End.—The contract says :
" The material removed from the Tunnel, at both ends thereof,
will be deposited wherever the Commonwealth, by its officers in
charge of the work, shall direct, . . . and the contractors
shall not be required to haul the same more than 3,000 feet from
either end of the Tunnel."
The contractors were to haul and deposit this material.
But the Commonwealth wished to build a railroad track, and
also a county road, within 3,000 feet from the east end of
the Tunnel, and so the engineers thought they could compel
the contractors, not only to haul and deposit the material,
but also to grade the embankments.
Mr. Frost was asked the direct question what his directions
to Mr. Shanly were, and he testifies explicitly that his direc-
29
tious were " to build the railroad bank," and " to build the
highway " ; and that the charge was for handling the rock
after it was deposited.
What is reasonably implied, as the duty of the contractors,
from the obligation to haul and deposit this material? You
are to remember this is a work that was going on day
and night ; there was no cessation in the motion of these
cars, except when stopped by flood or other disaster. The
question is, whether the contractors were bound to handle
over the rock after dumping it; to leave it at an accurate
grade ; or whether their duty was discharged by hauling out
the rock and depositing it where it would be available for use
by the Commonwealth, for the purposes required.
The work which the Messrs. Shanly undertook to do was
the construction of the. Iloosac Tunnel. The hauling and
depositing of rock required by them was simply incidental
to their work-fra the Tunnel. They did not undertake, in
whole or in part, to build a railroad or a county road, outside
of the Tunnel. No contractor upon reading the contract of
the Messrs. Shanly could fairly be held to understand that he
could be called upon to deposit this rock material at so accu¬
rate a grade, according to stakes set, as to serve, without
further handling, as an embankment for a road.
The correspondence shows that this work was done under
a prptest from the Messrs. Shanly, that it was outside of their
contract, and ymuld be regarded by them as extra work.
[See letters from the Messrs. Shanly of June 27 and August
8, 1873, to Mr. Frost; and Mr. Frost's letters of August 7,
September 12, 18 and 26, 1873.]
Mr. F'rost, in his testimony, goes on to say that $600 was
allowed to the hiessrs. Shanly for work in grading which was
done before he had charge of that part of the work, and that
no allowance was made for any work done "under his super¬
intendence. The memorandum of the decision of the governor
and-council shows the same fact. Now, here is found another
illustration of the whimsicalities of this eccentric engineer.
From the fact that this matter was presented to the governor
and council, and disallowed, in terms implying that no extra
work was done except during the time of his predecessor,
you would naturally infer that it was not recognized that any.
30
such extra work was done. But, ou the contrary, Mr. Frost's
letter of August 7, 1873, Mr. Shanly's reply of August 8,
and Mr. Frost's second letter of September 12, expressly
recognize and stipulate that a portion of this work is outside
of the contract, and to be. paid for extra ; and in the last
letter Mr. Frost says,—
" As to the additional work which I recognize to be outside of
your contract, I shall propose to compensate you in the same man¬
ner with other claimants for current account, hy a special voucher for
the amount, to he paid as soon as the work is completed."
And the amount per cubic yard is fixed.
Now, this was in 1873, and the very last of this work was
finished in April, 1874 ; and yet the Messrs. Shanly wait for
their pay till this hour. Their claim is rejected by the governor
and council, with the declaration that the engineers have ad¬
vised them that nothing was due ; and they are here informed
by this agent of the Commonwealth, that if they will withdraw
this item from their petition to the legislature, and apply to
him at North Adams, he will be ready, in the course of a
week, to furnish a voucher or payment for so much as he
recognizes to be work outside of their contract ! This is a
very good illustration of the methods of doing business, and
which the Messrs. Shanly have been subjected for over five
years.
The cost of this work was $3,511 ; a part incurred by
injury to their rolling-stock in being forced to go down too
steep a grade, in the work upon the highway. This element
of injury is recognized by the engineers.
Central Drain.—When the Shanly contract was executed,
5,017 feet of central drain from the east portal were supposed
to be finished. The contract shows that the eastern division
was 10,617 feet in length, and 5,600 feet of central drain
were specified as to be made, leaving 5,017 feet supposed to
be already finished. Mr. Frost admits this ; according to his
own report, 2,256 feet were excavated in 1868. (House Doc.,
1869, No. 192, p. 65.) He admits that this was done under
his own superintendence, as engineer ; and covered up with
timber, as completed, and the loose rock and debris allowed
31
to accumulate, so that no one eould examine it, even if so dis¬
posed. The final covering of this with stone, would be one
of the last pieces of work to be done in the Tunnel.
In point of fact, it turned out that of this 5,017 feet of cen¬
tral drain supposed to be finished, 4,816 feet' had not been
brought down to grade, and 201 feet had not been touched.
■ This happened, as Mr. Frost testifies, through the eareless-
ness of his subordinates, and it was not detected by himself,
and the imperfection was first brought to light by the letter
of Messrs. Shanly of August 7, 1874, to Mr. Frost, as follows :
" As far as we have yet uncovered the central drain east of 4,800
eastern section, we find it all too high in the bottom ; so much.too
high as to require a great deal of labor to bring it to the proper
grade, and it will .take all the force we now have at east end to
complete it ready for the drain-pipe, by latter part of this month,—
that is, provided it all proves to be as much above ' grade ' as what
we have already uncovered. This work, being outside of our con¬
tract, we shall charge as ' extra ' to the State."
Mr. Frost's reply of August 13, says,—
" I recognize that your understanding, and my belief also, at time of
making your contract, regarded this length of trench as having been
excavated to the proper grade. I am not, however, authorized to
entertain and decide equitable considerations."
And he suggests that the Messrs. Shanly should transmit
to him a statement of the cost each month.
Thus it appears that the agent of the Commonwealth,
before the Shanly contract was made, did this work, in part
imperfectly, and in part not at all,—concealed the imperfection
in part dy covering it with timber, and in part by allowing
loose roch and debris to accumulate upon it, so that it was not
open to examination; and then represented the worh as com¬
plete,—so that the Messrs. Shanly entered into this contract
upon the strength of those representations. Discovering the
imperfection five and a half years afterward, they have done
the work themselves, giving notice that it was outside of
their contract. The engineer assented ; but to this day no
allowance has been made for the $8,700 which they expended
in doing it.
32
Now it is argued here by the attorney general that, never-,
theless, the Messrs. Shanly, though thus ruisled, .took their
own risk of the dri\in's having been completed. This argu¬
ment scarcely differs from an argument that the State might
take advantage of its own fraud. So far as the Messrs.
Shanly are concerned, the transaction, in its effect, was the
same as a direct fraud. ]\Ir. Frost concealed the imperfection
in the work done under his own superintendence, and then
represented to them that the work was complete, and they
were misled and deceived thereby. If he knew of the imper¬
fection, this was a gross fraud. If he did riot know of it, it
was gross negligence. It is not intended, of course, to
charge upon Mr. Frost that he was guilty of an intentional
frand ; but he only escapes from the imputation of a gross
fraud, by asserting his own gross negligence, and the effect
on the Shanlys is the same. And yet it is argued here that
this was a fair risk assumed by them. The Commonwealth
of Massachusetts cannot afford to take that position.
This is a sample of the kind of construction of their con¬
tract to which they have been obliged to submit for years,
and is a good illustration of the wonderful and mysterious
engineering that has characterized the superintendence of the
whole work.
These various matters serve to show the kind of require¬
ments that have been made by the engineers upon the Messrs.
Shanly, and the spirit in which they have been met. There
has never been an instance when the Commonwealth has had
Avork necessary to be done, but outside of the contract, where
the Messrs. Shanly have refused or hesitated or haggled for
sharp terms. Suppose they had taken the example of the
engineers for a guide, and said, "There is onr contract; we
will do that, and we vñll do nothing else." Such was not
their course. They have shown the most entire good faith
to the State, under all emergencies and oppressions and
embarrassments, financial and otherwise ; repairing storm
damages in advance even of any request to do it ; willing to
undertake extra work, with no provision made in advance for
payment ; but relying with a confidence, that even the conduct
of these engineers has not wholly removed, in the ultimate
good faith and justice of the Commonwealth. They appeal
33
from the agents of the State to the State itself, and expect
from you that justice which they have not hitherto received.
Mistake in OraoiNAL Measurement.
Again, it is now a conceded fact that there was an error in
the computation of the amount of solid rock excavation per
running foot of Tunnel, by which Mr. Shanly was misled at
the time of making his contract. This computation had been
made by an assistant of Mr. Frost's, who thought that the
amount to be excavated, for an area of the size prescribed
for the Tunnel, would be of a cubic yard less than it
really was, for each running foot.
Mr. Frost frankly concedes this error, and admits that the
cost of this additional excavation would amount in all to
$22,000, at contract rates. Mr. Shanly entered into this
contract relying implicitly on Mr. Frost's figures. Every¬
body agrees that he accepted them as accurate.* This is a
matter of absolute injury to the Messrs. Shanly. They were
misled and deceived, though not intentionally. By this
blunder, the price they got for the Tunnel is $22,000 less than
it otherwise ivould have been. The contract price was arrived
at by adding up Mr. Frost's various items ; $22,000 more
would have been included but for this blunder in a matter-
of pure mathematics. Mr. Shanly has lost this amount out¬
right. If the truth had been told to him, he would have had it.
The contract price would have been just so much more.
Without disputing this,—for it is indisputable,—it is said
that in the western section, where arching was expected to
be done, a smaller number of cubic yards was in fact exca¬
vated than Mr. Frost estimated at the outset, and this, it is
supposed, in some way furnishes a reason why Mr. Shanly
has now no ground of complaint. But the argument is an
unjust one.
In the first place, the fact is not satisfactorily established ;
it was not brought up before the governor and council ; it was
never intimated till near the conclusion of the hearings ; no
details were given making verification possible, and it was,
as it were, sprung upon us, after Mr. Frost had written Mr.
Shanly a letter, dated March 8, 1875, telling him his item oí
$22,000 needed no change.
34
In the second place, there is no question that excavation
■was made suiBcient to receive 4,500,000 brick laid in arch.
How much excavation would be required for this was known
to be a matter of estimate, not of exact computation. The
amount would depend upon the thickness of the arch required,
and this could not be known beforehand. If, therefore, the
actual excavation required should prove more than the esti¬
mate, Messrs. Shanly must nevertheless take out the rock ;
, if less, they were entitled to the advantage._ The contract
price was not to be varied by the result of a conjectural esti¬
mate ; but if the contractors are to suffer from the effect of
an erroneous computation in pure mathematics, in a matter
wherein they were confessedly forced to rely implicitly on
the statement of the engineer of the Commonwealth, it has
all the effect of a positive fraud.
In the third place, Mr. Frost tells you that in fact, according
to the best judgment he can form upon a detailed exami¬
nation of the rock, the Messrs. Shanly have actually exca¬
vated 22,638 cubic yards of rock outside of the prescribed
section of the Tunnel, in those 8,573 running feet which
three of the experts, employed by the corporators, have agreed
upon as likely to require arching; and that if this space
should be arched, according to the recommendation of the three
concurring experts, the value of this extra excavation to the
State, at contract rates, will be $250,000. It is not, there¬
fore, for the State to say that the Messrs. Shanly have done
less work than was estimated at the outset, when in only
8,573 running feet they have made an excavation, necessary
for the State now, of 22,638 cubic yards outside of the pre¬
scribed lilies ; showing that in the whole Tunnel they have
probably exceeded the assumed quantities, in their actual
excavation, by as much as 50,000 cubic yards ! Shall the
State avail itself of this $250,000 worth of ■ necessary work,
outside of the contract, without paying for it, and send the
Shanly s home with a loss of $225,000 9
The Destruction of the Haupt Tunnel
Caused loss by increasing the working expenses $2,700, and
by delaying the completion of the Tunnel.
The necessity ■ of the Haupt Tunnel to give an exit west.
35
was recognized in the contract, and an allowance of |8,500
made for clearing out and timbering it. To understand this
clearly requires some acquaintance with the situation of . the
ground at the west portal of the Hoosac Tunnel. Just to
the west of that portal there is a hill, through which the
Haupt Tunnel was built. An open cut for the railroad has
now been made through that hill, but, at the time when the
Shanly contract was entered into, there was no way of deliv¬
ering the material from the west end of the Hoosac Tunnel
except through the Haupt Tunnel. It was not only the duty
of the Messrs. Shanly to keep the Haupt Tunnel open, but it'
was their plain right to have free egress through it from the
west end of the Hoosac Tunnel, until the completion of the
work under their contract.
The railroad from the west portal of the Tunnel was to
be built by other contractors,—Messrs. McClallan, Son &
Walker,—whose work in August, 1873, began to interfere
with the maintenance of the Haupt Tunnel by the Messrs.
Shanly. On the 28th of August, 1873, the Messrs. Shanly
sent to Mr. Frost the following letter, a copy of which was
sent to the governor :—
lioKTH Adams, 28th August, 1873.
Dear Sir:—"We have to notify you that unless the work now
doing under the state contract with Messrs. McClallan, Son &
Walker, in the deep cutting approaching the western portal, be sus¬
pended at once, we will not hold ourselves responsible for the
maintenance of the Haupt Tunnel.
As the case now stands, it may be said that while we, under our
contract, are bound to keep up the old Tunnel, a contract has been
made with other parties to batter it down.
The action of Mr. Dwyer's steam-excavator, which has stripped
the outer covering from off the south side of the Tunnel for about
half its length, causes the supporting timbers inside to shake and
vibrate to such an extent that they must inevitably, and before long,
give way, and so cause the Tunnel to close in, while his blasting
operations will certainly complete the ruin. A single blast outside
yesterday, brought down several carloads of rock inside, obstruct¬
ing the passage through.
The Haupt Tunnel has by us been maintained in perfectly safe
condition for all purposes contemplated by or required under our
contract, but we cannot undertake to protect it against the batter-
6
36
ing-rams and artillery now assailing it from without. The stripping
of one side, while the other is left fully loaded, would, be sufficient to
overbalance the very best constructed arch.
We warn you that the destruction of the Haupt Tunnel, now
imminent, will cause us great damage, and seriously impede the
progress of the main Tunnel.
This is a matter of so great moment that we deem it advisable to
send a copy of this communication to His Excellency the governor.
Yours truly,
(Signed) F. SHANLY & CO.
Benj. D. Feost, Esq., Engineer, etc.
On the 30th of August, Frost sends a reply containing the
following :—
" The incident which you mention occurred from the jar of an
unusually heavy blast, but it showed the limits of safe proximity to
have been reached. I therefore directed J. W. Dwj'er, who is
making the approach cut for McClallan & Co., to withdraw his
steam-shovel tb the point 700 feet distant, at which he will com¬
mence to bring up the lower (grade) breast of the cut."
The matter then rested for a time, till on February 4,
1874, the Messrs. Shanly addressed Frost as follows :—,
" We must again draw your attention to the condition of the
Haupt Tunnel, which has never been safe, and not for two consecu¬
tive da3's even passable, since the heavy fall of rock which took place
on the 4th of January. We have been entirely cut off from access
to our excavation from façade and put to much loss both of time
and money, and must again record our. sense of the injustice and
injury done us in not being allowed to complete the façade and
arch last summer." ' .
Frost's reply, February 11, was very long. Among many
other things, it contains the following :—
" Unavoidably, your excavation has been much hindered by the
successive interruptions of route of haulage of materials." . . .
"A week later [i. e., after Jan. 13], ñnding the prevalent mild
weather was occasioning falls from slopes, and other incidents of
unavoidable danger, I became convinced that new arrangements
37
must be made in order to secure tbe concurrent progress of the rail¬
road and façade excavation." . . .
" At the immediate present, it is not reasonably possible to main¬
tain safe passage through the whole length of the Haupt Tunnel. I
have already made provision for the important matter of drainage
through it, and must, of course, deem the State henceforward respon¬
sible^ for the maintenance of its construction. . . . When¬
ever you shall conclude to resume the excavation with your own
force, or whenever you shall desire to transport any other material
through the Haupt Tunnel, it seems to me that you should present
to me, as the agent for the State, the option of re-opening the Haupt
Tunnel for your transportation, or of allowance to you for the in¬
creased cost of moving your excavation or other materials by
other route."
On February 16, the Messrs. Shanly reply to him, thus :—
" Referring to your letter of 11th inst. about the Haupt Tunnel,
we, of course, have no further responsibility for it, but still must
hold the Commonwealth responsible to us for the damage and incon¬
venience we have been, and still may be, put to, by being deprived
of access through it to our works. Our sub-contractors, too, may
look to us to make good any loss or inconvenience they maj' be put
to through the same cause."
March 6, 1874, the Messrs. Shanly again write as fol¬
lows :—
..." As we hold, that the passage through the Tunnel is
no longer safe, and that large masses of the roof may come down
at any moment, to the endangering of human life, if we continue to
run our excavation out through the Tunnel, we have decided to
erect derricks and other appliances for hoisting the material to sur¬
face-level."
And asking him to indicate where the material may be dis¬
posed of.
Mr. Frost replied, March 7, saying,—
" Recognizing that the continuous maintenance of the Haupt
Tunnel, so as to allow you transportation through it for removal of
material excavated, must, before long, become a matter of consider¬
able difiSculty and expense, and also appreciating the consideration
of greater safety in the alterations now proposed, I am glad to learn
38
your present conclusion to resort to hoisting direct to the surface-
level by steam."
After this correspondence, in which Mr. Frost recognized
the responsibility of the State for the^ interference with the
Messrs. Shanly's work, and the annoyance and expense to
them, time passed on until August, and no means of exit at
the west end were furnished,—the Haupt Tunnel was de¬
stroyed,—the material had to be hoisted up through the west
shaft ; and, so long as the shaft was used for hoisting, the
large amount of rock still to be excavated near the bottom of
that shaft, must remain untouched. That work could not be
done till egress was furnished at the west end, for blasting
and hoisting could not go on together. Accordingly, August
26, 1874, the Messrs. Shanly wrote to Mr. Frost, as fol¬
lows :—
" When may we count on having a track laid to the west portal,
that we may run our cars out to the dumping-ground, and so enable
us to complete the arch within the Tunnel ? The want of our track
through the Haupt Tunnel has caused us great delay, and is now
adding largely to our expenses, and the time has arrived when we
must have corresponding ingress and egress provided for us."
September 4, Mr. Frost replies, recognizing the increased
expense to Shanly by reason of the closing of the Haupt
Tunnel, in these words :—
" It is expected that the ballasting of the northern side of the
west approach cutting will be finished by Wednesday next, and you
can then proceed to extend, with suitable curves, from end of one of
your present tracks,—say 100 feet west of the west portal," etc.
" So soon as you shall have laid your short, necessary lengths of
track and third rail, you will please furnish me a statement of the
cost. It is evidently one which you could have avoided., if continuous
use of the Haupt Tunnel had been left to you."
September 16, 1874, the Messrs. Shanly again write to Mr.
Frost, as follows :—
" We are greatly delayed in completing the excavation around
west shaft, and all other finishing in west-end section in fact, by
want of free access from west portal, immediately outside of which
39
Mr. Dwyer (sub-contractor for McClallan & Co.) still occupies the
ground and blocks the track so as to render our sending out our
cars with any degree of regularity not practicable. We wish to
learn when we can be accommodated with free access to the dump¬
ing-ground, in order to allow of our arranging for closing the shaft."
Mr. Frost, in his testimony, concedes that the use of the
Haupt Tunnel was necessary for them to finish their work
in the west end of the main Tunnel ; that the work must all
he done up the west shaft till exit was possible through the
west portal ; that the work remaining to be done near the
west shaft could not be done until that shaft was closed and
exit obtained through the portal ; that the State were forced
to cut off that exit till September, 1874 ; and that Mr.
Shanly was delayed in his work in consequence. It was a
■ plain invasion of the Messrs. Shanly's rights, subjecting them,
not only to the extra working expenses, but also, and more
important by far, to the damage resulting from delay. Upon
Mr. Frost's own statement—upon facts not here in any con¬
troversy at all—this loss is manifest.
It is now argued, that although it is just to allow to the
Messrs. Shanly the damages sustained by them to March 1,
1874, yet nothing should be allowed for the damages during
the time for which the contract was extended. . This argu¬
ment is, in substance, that the Commonwealth, while extend¬
ing the time for good reasons, might, nevertheless, prevent
the contractors from doing the work within that time. The
attorney general fails to appreciate the ground on which this
matter rests. It is this : the Commonwealth for a long time
prevented the contractors from using an exit through the
west end of the Tunnel. So long as the contractors were so
prevented, they could not finish the Tunnel, and the delay
was the fault of the Commonwealth.
Losses of Interest.
Mr. Shanly has shown that, but for the delay thus imposed
upon him, the use of the west shaft would have been aban¬
doned in April, 1874 ; his whole work would have been finished
by September 1, 1874, and he would have been entitled to a
settlement on that day. Had a settlement been then made,
and they been paid the amount in full which they had then
áO
earned, they would have received in money $548,164. The
interest on this sum from September 1 till December 22
(which was the day of the actual settlement), making proper
allowances for sums actually paid between those dates, would
amount to $10,603.
By the Eesolve of 1873, chap. 48, it was provided that
$350,000 should be reserved and retained in the treasury
until the completion of the contract, and, subject to said'
reservation, " the full amounts already earned or hereafter to
be earned by the Messrs. Shanly shall be paid over to them."
This Eesolve has not been fairly carried out according to its
true spirit, as appears from the fact that when the final settle¬
ment was made with them, $456,000 which had been kept
back till then, was paid, instead of $350,000 ; and the sum
of $60,000 in excess of their earnings for the month had been
paid to them in a recent estimate. The Messrs. Shanly put
these losses of interest at $19,850, according to a detailed
statement which has been laid before you.
The Messrs. Shanly have also lost interest on the amounts
of all those items for which payment should have been made
to them heretofore ; for example, the sum due for the work
on the first 810 feet, at the east portal ; for the grading of
the embankments ; for the central " drain ; for the storm
damages at the west end; and for taking down the loose
rock.
Moneys Weongfully Withheld feom Conteactoes.
There is another kindred source of injury to the Messrs.
Shanly, founded in a manifest and very oppressive injustice.
Their performance of the contract was secured by $500,000
of money earned by them, which was retained by the Com¬
monwealth. Till their earnings reached this sum they re¬
ceived nothing. And after their earnings reached this sum,
there was never a time when the State had not at least
$500,000 of their earnings in its treasury, until after the
passage of the Eesolve of 1873, directing that thereafter only
$350,000 should be retained, and even this was to a consid¬
erable extent nidlified by the construction of the engineers,
as has been shown.
This retention of money was the security provided in the
41
contract itself, and it was the sufficient and only security
which the contractors were bound to furnish, or the State
was at liberty to exact. It was withheld as security ; and it
was the security agreed upon as sufficient and satisfactory.
If the contractors failed to observe the provisions of the
contract, the remedy was, for the State, if it saw fit, to give
them three months' notice, and put an end to the contract.
But if this was not done, the, contractors were entitled to be
paid for their work, subject to the retention of the amount
agreed upon for security. But the engineers enforced
against the Messrs. Shanly another and additional security,
not provided for in the contract, and wholly unjustifiable and
illegal. They withheld in their estimates, at various times,
large sums of money, which had been earned, as a sentence or
punishment on the Messrs. Shanly for failure to observe direc¬
tions or requests of the engineers as to methods and times oí
doing certain details of the work. For instance, Mr. Frost
tells you that thousands and thousands of dollars were with¬
held on account of an omission to do certain matters of trim¬
ming, at the times when the engineers wished. They would
not allow the Messrs. Shanly to select their own times for
doing this work. Simply for a failure to do it at the par¬
ticular times required by the engineers, this deduction was
made.
The strictness of construction of the engineers seemed to
increase with the difficulties of the contractors. In that dark
season of 1872, in July, when work was necessarily "sus¬
pended west from the central shaft, and was prosecuted to
the east under the difficulties that have been described, the
order came to trim ofi" every inch of projecting rock without
delay.
At one time $27,000 was withheld from Mr. Shanly on
account of trimming. The $500,000 security was designed
to cover all such matters as this. Other reservations of
money were also made. It was oppressive and harsh and
illegal.
■ ® .
Interest Paid by Contractors.
All reservations of money, as well as all increased ex¬
penses of working, had also the direct efi"ect to swell the
42
amount of interest paid by tbe Messrs. Shanly, so that in the
aggregate it reached an amount quite beyond the original
expectation. Including the $500,000 retained by the State,
the capital required for the prosecution of the work would
not fall far short of $700,000, the interest on which, at seven
per cent., would be about $50,000 a year. Following close
upon the water difficulties of 1872, came the financial panic
of that year, culminating in its çiemorable Black Friday, and
forcing strongest houses to the payment of unusual rates of
interest. The following year another season of financial embar¬
rassment succeeded, which tested in the severest manner the
strength of all who were carrying on enterprises which in¬
volved the necessity of large capital. In addition to the work
required by the contract, the State, from time to time, were
calling upon the Messrs. Shanly for extra work, which they
undertook and performed, the payment for which was long de¬
layed, and some of it has not even yet been received. These
advances of money, when already overburdened with a losing
contract, in two seasons of wide-spread financial distress,
have contributed to swell their interest account to an amount
so great that it has been thought fit to make it a subject of
special comment by the attorney general. But in view of
the circumstances, there is occasion rather to be surprised
that the amount of interest paid was as small as it appears.
It is to their credit, and shows their financial strength, that
this account is no larger.
Indeed, looking back upon the history of their work under
the contract,—considering the capital invested, the security
required by the State, the two seasons of financial distress
and panic which convulsed the country, the great physical
difficulties to be overcome, the strict constructions of the
engineers, the withholding of money earned and due, the
calls for extra work, the numerous unexpected difficulties
which beset the Messrs. Shanly, physical and moral,—the
wonder is rather that they ever got through with the work at
all. Looking back upon it now, it is simply a marvel that
perseverance and pluck endured so long.
43
Official Commendations of the Messrs. Shanly.
The joint standing conimittees of the legislature have not
failed, from year to year, to recognize the energy, ability
and fidelity displayed by them throughout their work.
The committee for 1869 say,—
" We feel called upon to say, generally, that every portion of this
stupendous work showed a capacity, thoroughness and energy in its
prosecution which speak well for the contractors, and give the best
assurance that the work will be completed by them, and within the
time prescribed b}' the contract." (Senate Doc., 1870, No. 58, p. 3.)
The committee for 1870 say,—
" The committee have made a close examination into every part
of the Tunnel work, and have also made themselves perfectly famil¬
iar with all the discouraging difBculties which have from time to
time been encountered in the progress of the work in the past, and
have carefully compared them with all contingencies that may rea¬
sonably be anticipated in the future, and they are settled in the
opinion that the contractors will be able to finish the Tunnel within
the time specified in the contract." (Senate Doc., 1871, No. 55, pp.
16, 17.)
The committee for 1871 say,—
" Since the last session, we have visited and' examined the work¬
ings of the contractors of the Hoosac Tunnel, and find much reason
for satisfaction in the apparent energy and ability displa3'ed in push¬
ing forward the work. The rate of progress then prevailing at the
east end of the Tunnel, as ascertained from the state engineer, was
more than twenty-five per cent, in excess of contract rate, and the
report of the whole j-ear's advance at this point shows an aggregate
excess of about sixteen per cent."
" The progress attained during the past year in the headings,
both at the east and west ends of the Tunnel, has considerablj' ex¬
ceeded that of the preceding j'ear, and is now m each of these
instances in advance of the point required by the stipulation of the
contract." (Senate Doc., 1872, No. 250, pp. 4, 5, 14.)
The committee for 1872 say,—
" The progress of this work during the past 3'ear seems to evince
very commendable diligence and faithfulness on the part of Messrs.
7
44
Walter and Francis Shanly, contractors. The advance of heading
westward from the central shaft was suspended during more than
ten months of the year by reason of enforced delays arising out of
the large volume of water encountered, and the apprehension of de¬
veloping a further increase of quantity which should exceed the
resources of the pumping machineiy provided for its removal. Not¬
withstanding the suspension of progress at this single point of ad¬
vance during the greater part of the year, the great exertions made
at the other points of penetration, seconded by very remarkable
immunity from any considerable delay, have given an aggregate
quantity of work in lineal feet of heading opened during the year
which considerably exceeds the hmount of advance for that time
that would have been reasonably anticipated if the difficulties and
dangers of interruption which were to be met with had been fully
apprehended." (Senate Doc., 1873, No. 201, pp. 5, 6.)
The committee for 1873 say,—
" The contractors, Messrs. Walter and Francis Shanly, seem to
have continued to maintain a high standard of diligence and energy
in the prosecution of their work. . . . /i has been a matter of
advantage to the enterprise that the contract for its execution should
have fallen into the hands of men alike energetic and competent,
who have contended successfully with its many difficulties." (Senate
Doc., 1874, No. 201, pp. 6, 7.)
Mr. Frost, also, in his report for the year 1872, which
included the dark and difficult season of this contract, says ;
" The operations during the year by Messrs. Walter and Francis
Shanly, contractors, upon their contract for the completion of this
work, were prosecuted with most excellent resource and energ}-.
. . . They have attained results of progress eminently satisfac¬
tory, in view alike of the sources of delay which were apprehended,
and of the actual difficulties met and surmounted.
" With the single exception of progress westward from the cen¬
tral shafti which was suspended in February, the advance of the
last year in the work of driving the headings may be said to have-
been substantially without peculiar hindrances, and the results
obtained have satisfied the most sanguine anticipations. In the head¬
ing from the west end, up to January I, 1872, the whole length
obtained was but 32 feet in excess of the contract requirement.
For the year following, the contract would require a progress of
1,200 feet. The actual length penetrated was 1,61G feet, an excess
45
of more than 33 per cent. This very favorable result iß paralleled
as to ratio between required and actual rates, by the ver^' creditable,
as well as very fortunate progress which has been accomplished
tlirotigh extraordinary efforts in the heading eastward from the central
shaft. In this the contract rates would require, for the eleven and
a half months' work which preceded the junction made with the east-
end section, December 12, a length of 920 feet ; and the actual
amount accomplished was 1,226 feet, an excess of very nearly 33
per cent.
" It should, however, he remembered that the extraordinary progress
is due largely to the extraordinary exertions made."
Their Character as Contractors.
These are the comments which have been made from time
to time, as the work has proceeded. They are quoted here,
because they show the concurring testimony of every legis¬
lative committee, year after year, whose official duty it was
to examine and report upon their work. They do not leave
it in any doubt that the Messrs. Shanly have displayed the
highest qualities in the prosecution of this enterprise. To
their uprightness and truthfulness. Governor Talbot has borne
a willing confirmation. But it needs no witnesses to satisfy
you upon this point. Such absolute fidelity to truth as has
been shown here by Mr. Walter Shanly, you are not likely to
find surpassed. He seems to have taken for his motto the
Saxon oath,—
" By Woden, God of Saxons, ^
Truth is a thing that I will ever keep, '
Until that day in which I creep
Into my sepulchre."
Intellectually, he is a man for great tasks and responsibil¬
ities, and not for holiday duties ; of clear perceptions ; of
strong convictions ; of self-reliance almost unwavering.
Such a man is not swayed much either by the doubts or the
overconfidence of others. In a matter of high moment, he
must needs act upon his own judgment alone. For carrying
through an engineering work of supreme difficulty to-day,
where is the man you would select in preference to Walter
Shanly ? Whose judgment would you hold superior to his?
Looking back upon the history of this great enterprise
46
\
from the beginning, who, of all those at any time engaged in
its prosecution, comes out with the highest and best repu¬
tation? It is Walter Shanly. Who else has succeeded but
the Shanlys? If any other reputations have suffered, no
stain has come upon that of these contractors.
Their chief commendation is this : that when natural and
physical obstacles alone were almost enough to appall the
stoutest heart, they have not been broken down by the addi¬
tion of needless annoyances, of exactions in matters of detail,
—many, perhaps, comparatively petty in themselves, though
serious in the aggregate,—of unwise direction and control, and
all the ceaseless, nameless vexations springing from a super¬
intendence that was a constant hindrance rather than a help ;
and that they persevered, even though, in the gravest exi¬
gency that has arisen in the progress of the work, the Com¬
monwealth, acting under the advice of its engineers, assumed
the responsibility of imperatively controlling their course,
holding them responsible for results, while forbidding them
to exercise their own judgment as to the best means of accom¬
plishing those results, and forcing them to act in a manner
which they at the time proclaimed to be foolish, reckless,
ruinous.
Their losses have come upon them through no fault of their
own. The history of their connection with the work is now
before you ; and they are unwilling to believe that the legis¬
lature or people of Massachusetts, on reviewing the whole
matter, will wish to see them dismissed from the successful
execution of this great public work, not only with these
heavy outlays to bear, but also with the smarting sense of
injustice which springs from the conviction, that, even in
spite of the unexpected natural difficulties which they have
encountered and overcome, they would have escaped without
pei^uuiary loss but for the unreasonable exactions and
requirements to which they have had to submit.
For these reasons, they respectfully ask for an ajjpropria-
tion which shall make good to them their loss.
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