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the decisions of the Supreme Court of the United States, which show our constitutional law to be a thing conditioned upon and in perfect and full harmony with the economic and moral life of the people as a nation — something mobile, just as the national life is mobile; not a principle of immobility, which means death, but of mobility, which means life and growth.
Certain specific requirements of the Constitution have become absolutely dead letters, pure fiction, and bear no more relation to the existing conditions than the twelve tables bore to the Roman law in the time of Justinian. Such, for instance, is the provision with regard to presidential electors. It was an undemocratic provision and the people soon found a means for its perfect nullification. The reasons given by Hamilton for its creation wero applied in another way by the people, and instead of having the President elected by a body of independent electors party conventions were invented, each convention being a body of primary electors actuated by the precise motives, as far as humanly possible, which Hamilton thought would actuate the Electoral College, but whose ultimate determination became final and conclusive upon the Electoral College and made of it a mere piece of machinery, an incumbrance, a survival fit only for the institutional scrap pile!
The clause with regard to the regulation of commerce between the States has had various interpretations according to the condition of the national economic state at the time of the interpretation; and our present constitutional law, resulting from a long series of judicial constructions, is something which would be as unrecognizable by, and as foreign to the thought of, the “Fathers” as the economic conditions under which we live would be. They never had any forethought or conception of the possibility of either, and their opinions are as valueless to us as last year's almanac or as the literature of medicine which was written before Harvey's discovery of the circulation of the blood or before the recognition of the germ theory of disease.
Vested interests always will be found looking backward and favoring the continuance of the conditions which have made possible their growth and power. The great bulk of the American people will be found looking forward and considering only those conditions which look to a more perfect control, both State and national, in respect to all things which involve the entire nation as a commonwealth. Mr. Root's correctness of prophecy of December, 1906, that the failure of the State to curb predatory wealth will certainly result in a continuous strengthening and centralization of power in the nation is beyond question.
Even as recently as the time between the repeal of the Missouri Compromise in 1854 and the close of General Grant's second term, after reconstruction was practically accomplished, the national control of railroads and of telegraphs was practically undreamed of; and yet there is to-day no sane economist or publicist who denies the right of such national control as a constitutional necessity.
This case may be taken as typical and illustrative. The enactment of the national pure food bill — the necessity for which is undeniable - is enough to make each individual member of the Constitutional Convention of 1787 turn in his grave! Between their day and ours a complete change has come over the character of our population. Great cities and the most fruitful agricultural communities in the world have grown up in what was wilderness when Clay introduced his Compromise resolutions in 1850 and when Webster made his famous 7th of March speech. A single city has come to have a population of nearly four and a half million people, in which alone there are more Irish than in Dublin, more Italians than in Rome, more Germans than in Munich or Vienna and more Jews than there ever were in Jerusalem, if not in all of Palestine! The increment of national population from immigration alone has reached 1,300,000 a year! America is depopulating Europe, and since 1865 there has either been born or come in as immigrants a totally new people, who never think of themselves as citizens of the State in any other sense than that in which they think of themselves as citizens of their city or their village. They think of themselves first and foremost as Americans, not as Virginians, not as Pennsylvanians; and they recognize the complete and full primacy of the national government in everything which affects the national life. Wherever State laws further or abet conditions which militate against the welfare of the nation as a whole they look to the national govern
ment to nullify such State laws; and they find the traditional division of powers between State and nation an actual hindrance to national welfare. They recognize that the United States of to-day constitutes a more homogeneous and unified people than existed in any individual State whatever in 1850, when we had less than 6,000 miles of railway, when communication with the Pacific Coast was a matter of weeks, where it is now only a matter of minutes; when the telegraph was still in its infancy and the telephone as inconceivable as the strangest miracle ever wrought by Aladdin on his wonderful lamp! Then we had a large number of what might be described as “local political nerve centres,” but no true national nerve centre, because the nervous organization of the nation, which consists of its railway system, its telegraph system and its press, had not come into existence. Nor had there grown up that indestructible economic interdependence of the several States and geographical planes which has become a fundamental condition not only of our national trade and life, but of our international trade and life.
These are the facts. Generally speaking, our State governments have been more and more successive failures and our national government more and more a developing success, from the birth of the nation until to-day. And it is as preposterous that any State should be left free to create conditions which militate against the welfare of the nation as it is that any county in the State, any township, any village or any city should be left free to create conditions which militate against the welfare of the State as a larger local community.
Nowhere in the country was there greater necessity of wise, just and adequate regulation of public corporations than in the state and city of New York when Mr. Hughes was elected Governor in 1906, and no one in the State was more cognizant of this necessity for the enactment of legislation than the Governor himself, as the result of his conduct of the legislative investigation of the gas and insurance companies and his personal familiarity with the transportation problem in the city of New York. It was, therefore, no surprise to the people of the state and city that he -hould have laid peculiar emphasis on this necessity in his first message to the Legislature of 1907. This message sheds a very
clear light upon the purpose of the law, and it seems proper that part of it should be now republished as a matter for reference by those interested in the study of this and other similar legislation. Speaking of public service corporations, the Governor said:
' Proper means for the regulation of the operations of railroad corporations should be supplied. For want of it. pernicious favoritism has been practiced. Secret rebates have been allowed, and there have been unjust discriminations in rates and in furnishing facilities for transportation. Those who have sought to monopolize trade have thus been enabled to crush competition and to grow in wealth and power by crowding out their rivals who have been deprived of access to markets upon equal terms. These abuses are not to be tolerated. Congress has legislated upon the subject with reference to interstate commerce, where naturally the evil has been most prominent. But domestic commerce must be regulated by the State, and the State should exercise its power to secure impartial treatment to shippers and the maintenance of reasonable rates. There is also need of regulation and strict supervision to ensure adequate service and due regard for the convenience and safety of the public. The most practicable way of attaining these ends is for the Legislature to confer proper power upon a subordinate administrative body.
“We have now a Board of Railroad Commissioners of five members. It is charged specifically with important duties. The execution of mortgages and the increase or reduction of capital stock are subject to its approval, its certificate that public convenience and necessity require the construction of a projected railroad is required before construction can be begun, and it deals with changes in highway grade crossings and various other matters in a definitive way.
“The law also provides that the board ‘shall have general supervision of all railroads and shall examine the same and keep informed as to their condition and the manner in which they are operated for the security and accommodation of the public and their compliance with the provisions of their charters and of law.' If in the judgment of the board it appears that any change of the rates of fare for transporting freight or passengers or in the mode of operating the road or conducting its business is reasonable and expedient in order to promote the security, convenience and accommodation of the public,' it may after notice and hearing fix a time within which the changes shall be made.
“ But the action of the board in the exercise of this general power of supervision amounts to a recommendation. If its direction is not complied with, the law provides that the matter shall be presented to the Attorney-General for his consideration and action, and shall be reported to the Legislature. So, if it appears that any railroad corporation has violated the law or unjustly discriminates in its charges, and the wrongful conduct is continued after notice, the matter is to be brought to the attention of the Attorney-General, 'who shall take such proceedings thereon as may be necessary for the protection of the public interests.'
“ The present scheme of regulation is inadequate. There is a lack of precision in the definition of the powers of the board and an absence of suitable means to compel compliance with its decisions. No penalties are provided for disobedience to orders of the board made within its proper authority. Nor is the board authorized to institute and conduct legal proceedings for the purpose of enforcing its requirements.
“ It is also provided that the expenses of the commission shall be borne by the railroad corporations upon the apportionment of the Comptroller. This plan of reimbursing the State is wholly indefensible. The supervision of railroads is in the interest of all the people and should be borne by the people as any other expense of administration. Such a board should be established in public confidence as an independent governmental body receiving no support from the railroads save as they are duly taxed for the general support of the government.
“We have also a Commission of Gas and Electricity with broad powers with reference to corporations engaged in supplying gas and electric current.
"It is my judgment that there is no need of two separate commissions to deal with these subjects. There are now corporations which are subject to the jurisdiction of both commissions, and in some cases the same questions are presented for the decision of both. Similar principles are applicable to the decision in many cases within the jurisdiction of each and harmony of administration would be promoted by having a single body. It is plainly in the interest of economic administration in order to avoid the unnecessary multiplication of officers and clerical force that there should be but one commission. In the two boards we have now eight commissioners. A board of less than this number would answer both purposes.
“I therefore recommend that the present Board of Rail