Commonwealth of Massachusetts.

IN SENATE, March 17, 1845.

The Joint Special Committee on Railways and Canals, to which was referred the petition of the Western Rail-road Corporation, "praying for authority to enter upon and use the Boston and Worcester Rail-road, and that the compensation to be paid therefor may be prescribed by the Legislature," also, an order of the fourteenth instant, directing said Committee "to consider the expediency of enacting a general law to regulate the use of Rail-roads connected with each other, and the interchange of business between the same," in submitting to the Legislature the two accompanying Bills, as the result of their consideration of a subject replete with difficulties, respectfully state:

That since the questions involved in the application of the Western Rail-road Corporation were argued before them on behalf of the petitioners and the Boston and Worcester Railroad Corporation, it has been the confident hope of the Committee that the directors of these two companies would succeed, by mutual effort and concession, in effecting such an arrangement as would render any legislation unnecessary with respect to them; or, if any was determined upon, that it would be such as would be assented to by both. In this hope, all practicable delay has been granted, until the near approach of

the termination of the session, and the unfortunate failure of these parties to come to an agreement between themselves, render it imperative upon the Committee to report to the Legislature the result of their deliberations. In doing this, at this late period, and amidst the pressure of other engagements, it is impossible for the Committee to go into any elaborate expositions of their views and opinions upon the general subject contemplated in the order, or to state any thing of the history and relations of these two companies beyond what is necessary to explain the provisions of the accompanying Bills.

For a statement of the controversies which have arisen between these two highly important corporations, the nature of the questions both of principle and detail upon which they differ, and for the arguments by which they respectively maintain their positions, the Committee must refer to the very able reports made by the directors of both corporations to their stockholders, and the annual reports of the corporations to this Legislature. The Committee have gone into no investigation of the facts upon which the respective allegations of the parties. rest, an investigation, it is obvious, peculiarly unsuited to a Legislative Committee, and which is rendered entirely unnecessary, by the view which was very early taken by the Committee after the subject was opened before them.

By the fourteenth section of the charter of the Boston and Worcester Rail-road Corporation, the Legislature reserved to the Commonwealth the power to authorize any company to enter with another rail-road at any point of said Boston and Worcester Road, paying, for the right of using the same, or any part thereof, such a rate of toll as the Legislature may, from time to time, prescribe, and complying with the regulations of the last named corporation.

This reserved power was not exercised by the Legislature in the charter of the Western Rail-road Corporation,-whether from inadvertence or design it is aside from the present purpose of the Committee to discuss. But in point of fact the two roads were united at Worcester, and the business interchanged between them has been transacted under such agreements of the parties, as have been entered into, from time to time, and,

during the last year, under an award of arbitrators mutually chosen; the terms of which award will cease to be binding on and after the fifteenth day of April next.

Under these circumstances, the Committee came to the conclusion, that this connection of the two roads should be assured and confirined to the Western Corporation by a legislative act; in the terms of the reservation in the Boston and Worcester Company's charter, and conformably to the provisions in the charters of other rail-roads, which the Legislature has permitted to be united with existing roads. This legislative sanction is therefore contained in the Bill herewith reported, entitled "An Act to authorize the Western Rail-road Corporation to enter upon and use the Boston and Worcester Rail-road."

The provisions of this Bill, it is apparent, do not reach the other portion of the petition of the Western Rail-road Corporation, which prays for a law regulating the interchange of business between it and the Boston and Worcester Company. The Committee were unwilling, upon so important a subject as this, to recominend any measure which should apply exclusively to these two companies, and thereby make them an exception to other rail-road corporations similarly connected. Under the order, therefore, which required the Committee to consider the expediency of a general law upon this subject, they have agreed upon a Bill, which, while its provisions (independent of any considerations applicable exclusively to these two corporations) commend themselves to the favorable, regard of the Legislature, will render any special enactments entirely unnecessary.

It is manifest, that the general legislation on this subject, both in view of the interests of all these corporations, and the convenience and safety of those who have occasion to use their roads, demands revision. The charters first granted were drawn in a state of entire ignorance as to the mode in which these great thoroughfares would be used. They evidently contemplated the employment upon them of the ordinary motive power then in use upon turnpikes and common roads; and the income of the stockholders was to be derived from a toll to be paid by travellers as they passed the toll-gates, which were to be erected, and by those who should use the roads, in a similar

manner, for the transportation of merchandise. The provisions contained in the early charters have been used as precedents, in those that have been subsequently enacted; although the change of circumstances and the progress of improvement have rendered them as unsuitable and inapplicable to the existing state of things, as a legislative regulation would now be for the use of steam locomotives upon the common highways. It is true, that in the more recent charters, an alternative proviso has been inserted, that one corporation may enter upon and use the road of another, unless that other shall consent to draw over its road the cars of the corporation thus authorized to enter upon and use it. And yet so apparent is it, that this use of one rail-road by several companies, with the independent motive power of each, is utterly incompatible with the safety of the public and the interests of the corporations themselves. No person can entertain a reasonable doubt, that, if this dangerous and impracticable alternative were resorted to, the Legislature itself would promptly interpose and prohibit it. The Committee are therefore of opinion, that these anomalous provisions in the charters of rail-road corporations, should at once and forever give place to enactments more conformable to a common sense recognition of the actual state of things, and the teachings of practical experience.

In preparing a Bill for this purpose, they have endeavored to meet the wants and protect the rights of all classes of these corporations that may have occasion to avail themselves of its provisions. In fixing upon a tribunal to establish the terms upon which the use of the road of one corporation is to be enjoyed by another, they were influenced to some extent by the consideration that the Commonwealth has a large pecuniary interest in some of these roads. It seemed to be proper, therefore, in order to secure a perfectly disinterested and impartial Board of Commissioners to adjust the terms of compensation to be paid by one corporation to another, that the appointment of those Commissioners should be confided to the Supreme Judicial Court. It is desirable also that parties should have the benefit of resorting to a permanent tribunal, and one that is always and easily accessible. The entire confidence and ready

acquiescence in the decisions of a tribunal thus unexceptionably constituted, which will be felt by all who may have occasion to invoke its interposition, cannot fail to receive the favorable consideration of the Legislature.

The other provisions of the Bill do not seem to the Committee to require comment or explanation. They are sufficiently intelligible as a part of the plan proposed by the Committee and explain themselves. In submitting these views, the Committee would venture to express their confident belief that a faithful and thorough examination of this subject will lead the Legislature to the conclusion that the proposed measure is one which the existing state of our Legislation on this subject imperatively demands, and which cannot, with a just regard to the interests of the public, be longer postponed.

They therefore respectfully recommend the passage of the two accompanying Bills.

For the Committee,

J. H. CLIFFORD, Chairman.