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and advice not only of men skilled in motive power practices, but of the men who understand the exact requirements for the additional engines from both a territorial and tonnage standpoint. Here again the law is available as a prod if necessary, and the machinery for making the will of the regulatory body effective exists in the voluntary associations of the carriers.
The law, the reports of the Interstate Commerce Commission, and the decisions of the United States Supreme Court, have combined in the past to hold a carrier's terminals sacred to i tself. Attempts under the old act to regulate commerce to overturn the closed terminal policy of various railroads throughout the country uniformly failed. Now the statute itself has been overturned, and we seem started on a policy of open terminals—wide open, if the regulatory body so decrees in time of emergency, and open as the public interest primarily, as distinguished from the owning carrier's individual interest, may require otherwise.
Should the carriers continue the closed terminal policies of the past, it is to be expected that the petitions for relief will a gain be presented. There will then arise the issue of public inte test, but this will involve not merely a conflict between the petitioners and the carrier, but as well with the patrons of the ca rier whose terminals are sought to be opened.
Is it not reasonable to assume that where the law has for years protected a certain facility for the benefit of the owner thereof and its patrons, that the development of that facility meanwhile has been for the satisfaction of their particular needs? This being so, the sudden imposition of an additional load upon terminals may well produce a decidedly adverse effect upon what previously was entirely satisfactory service. And, if it be true, as has sometimes been said, that terminal development has lagged behind other railroad development, the question of just where the public interest lies becomes a very delicate one.
It affects not only service upon local private side tracks, but team tracks as well, and also hold and classification yards, passenger stations and freight houses, and highly specialized terminal facilities, as, for instance, fruit auction houses, which are in some cities a la rge factor in terminal development from a competitive standpoint.
The word “ use ” is included in the new terminal provision of the act in a way that seems to require that the opening of one
carrier's terminals to another shall be accomplished by permitting the physical operation of the terminal tracks by the locomotives and cars of the second carrier. This would be more conducive to trouble than would be the extension of the rates of the second carrier to the particular terminals involved, with proper participation in such rates by the owning line which would perform the terminal service under such rates. Undoubtedly this would in many cases suffice to forestall any attempt to secure the physical opening up of the terminal facilities.
It may be mentioned here that in 1917 the Railroad War Board established terminal committees at some thirty points throughout the country. The membership was in each instance composed of representatives of the road at that point. The plan was continued by the Railroad Administration and at some points terminal managers were appointed. In the congestion and car shortage period of 1920 the American Railway Association again adopted the committee idea and as a rule, representatives of the Interstate Commerce Commission and of the local shippers have been closely associated with these committees. The results have been beneficial in terminal operation; the plan, skeletonized, remains in effect, and there is no reason why it cannot again be utilized as conditions may require, the more efficient because of past experience, and co-operative use thus made unnecessary.
As the statute is not so constructed as to require any cooperative use of main line tracks, there is no occasion for any detailed discussion of the practical aspects of such joint operation. Undoubtedly there may be some instances where that policy would result in economy and perhaps be more productive of efficiency. But the experience of the Railroad Administration in scrambling the properties of individual carriers did in some cases produce immediate as well as ultimate detrimental results. Throwing all the business of parallel lines to one or the other may result in measurable economy of railroad operation, but service and competition have a well-defined value to the communities enjoying the same, and their loss to the community may easily overbalance the gain in the financial results of the carrier's operation.
Economic loss of this kind may result from the operation of the consolidation provisions of the status. A foretaste of what may
be in store in this connection may be gathered from the objections made before the Interstate Commerce Commission to applications for permission to abandon operation of existing railroads.
Fortunately the statute as finally enacted does not contain the once seriously proposed mathematical limitation upon the minimum and maximum number of competing systems into which our railroads are to be consolidated. The statutory call is for a “ limited number of systems." This would seem to permit some leeway and it is to be hoped will provide enough. For while some additional consolidation may yet well be, there are many honest minds that see much unwisdom in statutory consolidations as now proposed, and can show excellent reasons why consolidation in general should be a process of evolution, which has produced the great systems of the present day.
Then, too, our medium length lines include enough which are operated with particular economy and efficiency to convince many students of the railroad problem that they should remain intact.
There is one feature of this entire subject of co-operative use of carriers' facilities which is of particular interest from both the legal and practical aspects. In those paragraphs which confer jurisdiction on the commission in emergency periods there is language reading: without answer or other formal pleading by the interested carrier or carriers.
It has been observed by some shippers that this was harsh upon the carriers but harsher upon the shippers, in that it seems to pre-suppose that the shipper has no particular interest. That he has was made quite plain by the emphatic objections by shippers to the commission's exercise of this jurisdiction during 1920. The fact is that the shipper's interest in service orders of the commission is much greater than in rate orders. He may be injured by an order affecting rates, but proof of that injury might be difficult and he may indeed pass on the loss. But when he has his output all sold, and is prevented from making delivery by some service order which curtails his transportation, he can measure almost to a penny what he loses and his chances to recoup are substantially nil.
And yet, if service regulation is to be, it would seem that to be effective in emergencies it must be on the plan now laid down.
the uselike th.
For operation and service, like the brook, must flow onward continuously, and if the usual course of litigation over service orders were to precede their issue, no emergency would ever be alleviated by such an order. Seemingly, the time is here, certainly while our railroads remain unrecuperated from their war experience and while business continues in fits and starts, when transportation emergencies may arise. It is better than otherwise that a responsible and disinterested public body at Washington should declare the fact when they do arise and govern the departures from laws primarily enacted for normal times. Mistakes may be made, but in the opinion of those close to the situation in 1920 the regulatory body handled matters vigorously and wisely in the light of all the facts available.
For the future there would seem likely to be less and less occasion for active regulation of service as the carriers succeed in getting back to normal physical condition and operation. They stand ready through their American Railway Association to do in a co-operative way what the law and their individual interests permit to meet the real necessities of the public for transportation. What has been so far accomplished in this way promises well for the future. But there is an exceedingly practical phase of the whole matter that comes in right here. The rehabilitation and the future development of our railways will take money. It may well be that old time enthusiasm for such work and for the purchase of the securities issued to produce the funds wherewith to accomplish such work may be laeking if too liberal cooperative use of carriers' facilities is compelled. Our railroads are individual corporate entities, and while their functions are primarily public, they are private property, and to be really successful public servants, must make money as such. Their officers can never afford to lose sight of that fact; they are entrusted with the property for that purpose as well as to serve the public. They should, as experts, be permitted to serve the public with their individual property, and, as necessity may demand, by their voluntary co-operative use of such properties. To the extent that their voluntary co-operation fails, or is impossible under the law, the task will be with the Interstate Commerce Commission.
DEVELOPING PORT FACILITIES BY INTERSTATE
COMPACT AND AGENCIES.
JULIUS HENRY COHEN,
OF NEW YORK, N. Y. In its decision in the New York Harbor Case, No. 8994, the Interstate Commerce Commission, quoting from the testimony of one of the witnesses, said:
The essential defect of the country's railroad system is the great cost of terminal handling as compared with the economy of hauling the trains. .... Defective city terminals throughout the land must be enlarged, modernized and integrated. At each city, as in the cities of Europe, the terminals will come to be conducted as administrative units.
This point of view has been recently confirmed by the testimony of John F. Wallace, the engineer under whose general direction the Chicago terminal situation was worked •out, and by various reports coming from the United States Shipping Board, the War Department, and elsewhere. The problem is nowhere more complicated and more difficult than at the port of New York, which handles more than half the commerce of the country. But though more difficult at the port of New York than elsewhere, the fundamentals of the New York port problem are present in other ports.
In the report of the Committee on Interstate Compacts of the National Conference of Commissioners on Uniform State Laws, made at the session of the commissioners held contemporaneously with the present American Bar Association meeting, the committee (84) stresses the necessity of cooperation between adjacent states in the matter of harbor development and recommends, as the type of expedient most adaptable for the harmonious administration of a commercial situation common to two or more states, the New York-New Jersey port treaty or compact. It would seem appropriate, therefore, that there should be presented to the lawyers forming the Public Utilities Section