1. New York Harbor Case, 47 ICC 643 (1917) at 739, 734, 733Google Scholar.

2. New York, New Jersey Port and Harbor Development Commission, Joint Report With Comprehensive Plan and Recommendations (Albany, 1920), 2, 38Google Scholar. The importance of the ICC's comments in the New York Harbor Case is clear from Section VI of Appendix H: “The Port of New York is one port: The Interstate Commerce Commission held, upon the argument of the State of New York, that ‘Historically, geographically, and commercially New York and the industrial district in the northern part of the State of New Jersey constitute a single community’” (488). On the Port Authority, see Doig, Jameson W., “Entrepreneurship in Government: Historical Roots in the Progressive Era” (paper prepared for the 1988 Annual Meeting of the American Political Science Association, Washington, D.C., September 1988)Google Scholar; idem, “Regional Planners and the New York Minefield in the 1920s: A Port Authority Tries to Light the Way” (paper prepared for the Annual Conference of the American Historical Association, Chicago, December 1991); and idem, “Joining New York City to the Greater Metropolis: Port Authority as Visionary, Target of Opportunity, and Opportunist,” in The Landscape of Modernity: Essays on New York City, 1900–1940, ed. David Ward and Olivier Zunz (New York, 1992), 76–105.

3. See Interstate Commerce Act, Section 15A, Paragraph 3, as found in Mac Veagh, Rogers, The Transportation Act, 1920: Its Sources, History, and Text, Together with Its Amendments to the Interstate Commerce Act (New York, 1923), 384Google Scholar. On the Transportation Act of 1920, see also Sharfman, I. L., The Interstate Commerce Commission: A Study in Administrative Law and Procedure (New York, 1931), 1: 177–244Google Scholar.

4. See Bard, Erwin Wilkie, The Port of New York Authority (New York, 1942)Google Scholar, and Doig, Jameson W., “Progressivism as Regional Planning: The Politics of Efficiency at the Port of New York,” Studies in American Political Development 7 (Fall 1993): 364–65CrossRefGoogle Scholar.

5. Kolko, Gabriel, Railroads and Regulation, 1877–1916 (Princeton, 1965)CrossRefGoogle Scholar, makes this argument for an earlier period of the commission's history. Bernstein, Marver H., Regulating Business by Independent Commission (Westport, Conn., 1955)CrossRefGoogle Scholar, argued that regulatory commissions underwent a “life cycle” during which they became “devitalized” (meaning more passive and beholden to the industries they oversaw) as they matured: “The ICC provides the most obvious illustration of maturity in the life cycle of a commission. … [By the 1920s] vitality and independence have petered out. Increasingly, the Commission has identified itself with the interests of the railroad industry” (90–91). In A History of the ICC: From Panacea to Palliative (New York, 1976), 111, 117–18Google Scholar, Ari and Olive Hoogenboom make a similar argument: “While the ICC traditionally preferred inaction, its lethargy during the 1920s reflected the drift of the federal government away from progressivism. … The commission … chose not to lead and shied away from interfering with private management's decisions concerning railroad organization and finance. … To solve the railroad problem and provide a national transportation system, the ICC needed to plan, shape, innovate, and act, but it continued merely to reflect power and respond to pressure from other sources [particularly Congress]. … In the 1920s the ICC was usually content to accept management's inclinations to abandon old or build new facilities, and its passive regulation of railroad securities deferred to private management's wishes even against the dictates of the commission's better judgment.”

Jameson W. Doig offers a very persuasive rendering of the return-to-normalcy hypothesis: “An alliance with the ICC seemed plausible in the early and mid-1920s, when that regulatory body was led by men like Joseph B. Eastman—commissioners appointed by Progressive era presidents and willing to employ the powers of government to carry out great national tasks. The activist tendency at the ICC had been reinforced by the federal Transportation Act of 1920, which encouraged the commission to take a leading role in improving coordination and efficiency in transport services. That the Port Authority and the ICC were potential allies was underscored in 1922, when the commission handed down its first decision in the Hastings case; in that opinion, the ICC concluded that the 1920 act ‘gives us a direct and explicit power to require the use by one carrier of the “terminal facilities” of another under certain conditions.’

“By 1926–1927, however, the ICC's membership and attitudes had been modified by years of conservative Republican leadership in Washington and by years of expansive economic vitality in the nation. A hint of what this might mean for the Port Authority's plans was provided in 1926, when the ICC essentially reversed its 1922 decision in the Hastings case. Then, early in 1927, an ICC examiner rejected the Port Authority's argument that the commission should force the Pennsylvania Railroad to open its Hell Gate Bridge to competing railroads. … What the ICC had offered in 1917 in the New York Harbor case—a readiness to use its influence, if needed, to end the ‘unrestrained competition’ among the rail lines and to unify the terminal operations in the Port of New York—was now, in this Age of Normalcy, a promise withdrawn, an opportunity abandoned.” Doig, , “Progressivism as Regional Planning,” 364–65Google Scholar. Let me say, as a general response, that I suspect that Julius Henry Cohen saw the transformation of the ICC in much this way. If we view the ICC's decisions primarily from the perspective of the Port Authority (and especially if you view the ICC's comments in the New York Harbor case as an enunciation of policy), the changes in ICC rulings from the New York Harbor case to the Hell Gate Bridge case seem to support the return-to-normalcy hypothesis.

6. Martin, Albro M., Enterprise Denied: Origins of the Decline of American Railroads, 1897–1917 (New York, 1971)Google Scholar, Benson, Lee, Merchants, Farmers, and Railroads: Railroad Regulation and New York Politics, 1850–1887 (Cambridge, Mass., 1955)CrossRefGoogle Scholar, Kolko, Railroads and Regulation, 1877–1916, and McCraw, Thomas K., Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landis, Alfred E. Kahn (Cambridge, Mass., 1984)Google Scholar. McCraw provides great insights into Adams, Landis, and Kahn, all of whom played key roles in regulatory agencies. And while his assessment of Brandeis is illuminating, Brandeis only played a peripheral role in ICC decisions and therefore does not tell us much about what the ICC was really doing. To be sure, Brandeisian antibigness was a major influence on governmental policy through the 1930s, but the course of ICC policy subsequent to the Eastern Rate case (where Brandeis appeared to have a great impact) was hardly determined by Brandeis's views on big business. By looking at the ICC through the lens of Brandeis's life, McCraw's account subordinates the discourse of the commissioners to the battle between big and small businesses that Brandeis fought all of his life.

In A History of the ICC, Ari and Olive Hoogenboom give the commissioners a greater role in the ICC's evolution. They note, for example, that Commissioner Edgar Clark was probably the principal author of the Esch bill (the House version of the Transportation Act of 1920), which suggests that the commissioners had their own views on railroad regulation and were not simply reflections of either railroad or shipping interests. These occasional episodes aside, however, the Hoogenbooms conclude that the commission was vacillating and lethargic during the 1920s (94, 107, 109, 111, 117–18).

7. Jones, Alan, “Thomas M. Cooley and the Interstate Commerce Commission: Continuity and Change in the Doctrine of Equal Rights,” Political Science Quarterly 81 (December 1966): 602–27, 613CrossRefGoogle Scholar.

8. Berk, Gerald, “Adversaries by Design: Railroads and the American State, 1887–1916,” Journal of Policy History 5 (1993): 335–54CrossRefGoogle Scholar; see also idem, “Constituting Corporations and Markets: Railroads in Gilded Age Politics,” Studies in American Political Development 4 (1990): 130–68, and idem, Alternative Tracks: Tke Constitution of American Industrial Order, 1865–1917 (Baltimore, 1994).

9. See, for example, Herring, Edward Pendleton, Public Administration and the Public Interest (New York, 1936), 199–201Google Scholar. It is not my contention that the ICC can be understood without reference to the larger political context or economic battles swirling around it. Rather, the customs, procedures, and precedents of the commission provided a buffer between direct external influences and the decision-making process, giving the ICC a significant degree of institutional autonomy.

10. Miller, C. A., The Lives of the Interstate Commerce Commissioners and the Commission's Secretaries Washington, D.C., 1946), 2–4Google Scholar; Meyer, a professor of political economy at the University of Wisconsin and chairman of the Railroad Commission of Wisconsin at the time of his appointment, served on the ICC from 1910 until 1939 (65–70); Aitchison, who was chairman of the Oregon Public Service Commission at the time of his appointment, compiled and annotated a five-volume collection of all the decisions of the federal courts, state courts, and ICC affecting railroad regulation, in addition to leading the Interstate Male Chorus (77–81); Eastman, who, according to his mentor, Louis Brandeis, “has more interest in public service and less in his own career than any man I have ever known,” was well known for his advocacy of government ownership of railroads (87–95); see also Fuess, Claude Moore, Joseph B. Eastman: Servant of the People (Westport, Conn., 1974)Google Scholar.

11. Among their other efforts to influence federal regulators, both Harding and Coolidge attempted, with some success, to control the decisions of the Shipping Board, which regulated the rates and fares of steamship companies. Hawley, Ellis W., The Great War and the Search for Modern Order: A History of the American People and Their Institutions, 1917–1933, 2d ed. (New York, 1992), 48, 54, 63, 84–86Google Scholar (Hawley notes, however, that ICC and the Federal Reserve were more difficult to assimilate within Hoover's expanding administrative empire; see page 85); idem, “Herbert Hoover, the Commerce Secretariat, and the Vision of an ‘Associative State,’ 1921–1928,” Journal of American History 61 (June 1974): 116–40; Bernstein, , Regulating Business by Independent Commission, 110–11Google Scholar; and Cushman, Robert E., The Independent Regulatory Commissions [1941] (New York, 1972), 233, 253–59Google Scholar.

12. Sharfman, , The Interstate Commerce Commission, 2:452–77Google Scholar. It is worth noting that Sharfman declared unequivocally that private interests had never tried to influence the ICC (452). Drawing on public as well as inside information, Sharfman explained how the Harding, Coolidge, and Hoover administrations encouraged the ICC to rule in favor of special interests—which, at least on one occasion, included direct contact between President Harding and one commissioner (456). Congress tried to interfere with the commission's decisions as well. In one notable case, Congress rejected the renomination of Commissioner John J. Esch—who as a congressman had been one of the primary authors of the Transportation Act of 1920—because certain senators were upset with Esch's voting record in the Lake Cargo Coal cases (463); southern and Progressive senators also blocked the nomination of Thomas Woodlock (Hoogenboom, , A History of the ICC, 111–12Google Scholar).

13. In other words, although political leaders were motivated by economic interests, they tended to exert them on a sectional or regional basis, rather than on behalf of particular industries. Sharfman, , Interstate Commerce Commission, 2: 455, 469–72Google Scholar. Edward Pendleton Herring also concluded that Congress had exerted pressure on the commission to favor agricultural interests; seePublic Administration and the Public Interest (New York, 1936), 196–98Google Scholar.

14. Sharfman, , Interstate Commerce Commission, 2: 458, 475–77Google Scholar. In a 1928 Phi Beta Kappa address, Commissioner Meyer described the ICC's relationship to political influence this way: “The Commission has always been an independent body. It has nothing to do with politics and no political influence has ever determined its official action on any question. I must admit, however, that occasionally attempts have been made to nibble politically at the Commission. In the past these nibbles were sometimes annoying but never harmful. It has remained for recent times to attempt to control Commission action through political channels. These attempts were made boldly and at times with fury. Every one of them has failed” (Miller, , Lives of the Interstate Commerce Commissioners, 68–69Google Scholar).

15. The transition would go something like this: in 1917, a unanimous commission ruled in favor of the Port Authority in the New York Harbor case; in 1922, with Progressive influence still strong but on the wane, a divided commission handed down the first Hastings ruling, a decision favoring joint use of terminal facilities; by 1926, however, Republican appointees had gained the upper hand, as illustrated by the second Hastings decision, with four Progressive Era commissioners raising their voices in dissent; finally, in the Hell Gate Bridge case, the now solidly conservative ICC ruled unanimously against the Port Authority's efforts to require joint use of facilities in New York harbor.

16. Manufacturers Association of York, Pa., v. Pennsylvania Railroad Company et al., 73 ICC 40 (hereafter cited as first York), and 107 ICC 219 (hereafter cited as second York); and Port Arthur Chamber of Commerce & Shipping v. Texarkana & Fort Smith Railway Company et al., 73 ICC 361 (hereafter cited as first Port Arthur), and 136 ICC 597 (hereafter cited as second Port Arthur).

17. Actually there were three railroads—the PRR, the WM, and the Maryland and Pennsylvania—but the PRR and the WM were the principal litigants.

18. So, if the PRR delivered a carload of freight from New York City to York, it could use the tracks of the WM within the trackage zone to deliver the carload to a manufacturer with a siding on the WM line. In other words, PRR and WM tracks within the trackage zone were jointly used.

19. These details are gleaned from both York cases: 73 ICC 40 and 107 ICC 219.

20. First York, 73 ICC 40 at 49.

21. “To require the Pennsylvania to afford use of its terminal facilities by another carrier [the WM] would be tantamount … to requiring a division … of traffic naturally tributary to the Pennsylvania. … There is no showing that the shippers [of York] are so inadequately served … that we are warranted, from the standpoint of public interest, in depriving the carrier [the PRR] … of an important volume of the traffic originating on its line” (first York, 73 ICC 40 at 50).

22. In other words, rather than extend the joint use of tracks, the ICC's ruling allowed the railroads to stop cooperating even within the trackage zone in order to put all shippers at York onto an equal footing. It is important to point out that the dissenting opinion in first York (written by Commissioner Potter, also a Wilson appointee) took an apparently even more probusiness line. Potter did not argue that the commission should extend the trackage zone—in what might be considered a Progressive approach. Instead, he argued that the commission had erred in its judgment that the trackage zone discriminated against businesses outside the zone. Potter thought the railroads should be allowed to maintain the trackage zone, even though it gave an advantage to some shippers in York. Potter vigorously asserted that carriers could not be called upon to redress the disadvantages of businesses who were not within the trackage zone: “An industry selecting a disadvantageous location because of low land values or for other reasons has no right to call upon carriers to overcome such disadvantage at the carriers' expense.” More important, Potter maintained that the ICC had to allow a railroad “some latitude for the exercise of business judgment and discretion in determining the field into which it will extend its operations.” This was especially true, Potter argued, because railroads developed terminal facilities in order to secure lucrative long-haul business: “Earnings from long hauls are the justification and reward for establishing facilities and developing territory. To the accomplishments of carriers in such development work is due the relative prosperity reflected in their security values. The position in the financial world of the securities of the Pennsylvania is due to its success in this regard. I do not think that the majority report conserves the strength and value of the position of that carrier to the reasonable extent to which it is entitled” (first York, 73 ICC 40 at 52–53). This is an important dissent because it shows that in 1922, a year in which the return-to-normalcy hypothesis suggests as Progressive, a Progressive Era appointee seems to be making a thoroughly pro-railroad argument.

23. United States and Interstate Commerce Commission v. Pennsylvania Railroad Company, 266 US 191.

24. Second York, 107 ICC 219 at 230, 240. The reasoning of the unanimous commission in second York was technically not under Section 3, Paragraph 4.

25. This is not to say that the commissioners lacked an overarching policy to guide their work. Rather, the nature of these decisions required them to determine in minute detail whether the general policy, enunciated in the Transportation Act, of facilitating cooperative use of terminals while assuring the financial viability of carriers made sense in particular cases. The layout of tracks and terminals, level of service, and needs of industries were very different in Hastings, Minnesota, than in York, Pennsylvania, or New York City. To determine whether general policies fit particular cases, commissioners and their staffs had to sort through hundreds (and sometimes thousands) of pages of testimony and numerous exhibits detailing local conditions. This led to an agonizingly slow pace of decision-making, as the ICC was faced with an increasingly large volume of cases under the Transportation Act.

26. These details are gleaned from both Port Arthur decisions: 73 ICC 361 and 136 ICC 597.

27. First Port Arthur, 73 ICC 361 at 364.

28. First Port Arthur, 73 ICC 361 at 364.

29. Second Port Arthur, 136 ICC 597 at 599.

30. Other cases also demonstrate that the ICC had not lost its interest in promoting the cooperative use of terminal facilities. Consider Chicago & Alton Railroad Company et al. v. Toledo, Peoria & Western Railway Company. In July 1928, one month after Hell Gate, a divided commission employed the joint-use provision of the Transportation Act to compel the Toledo, Peoria & Western Railway to continue to allow the Chicago & Alton Railroad to use twelve miles of its main-line track (not merely track closely connected to terminal areas) to reach the terminals of the Peoria & Pekin Union Railway. Commissioner Eastman wrote a vigorous dissent of the majority decision, arguing that neither was use of the main-line tracks of the TP&W in the public interest nor did the ICC have the power under Section 3, Paragraph 4, to compel such use even if it were in the public interest. Chicago & Alton Railroad Company et al. v. Toledo, Peoria & Western Railway Company, 146 ICC 171; Eastman's dissent is found at 182–85; Farrell, Brainerd, and Aitchison also dissented.

Sharfman (3A: 418–19, note 194) discussed this case, but left me with the impression that the commission's decision to vacate an emergency order compelling continuation of joint-use arrangements vitiated the effectiveness of its ruling that joint use was in the public interest, even though the ICC also ruled that the joint-use arrangements could not be discontinued without ICC approval. Sharfman also suggests (given the context in which he mentions this case) that by refusing to specify a rental fee for the use of the TP&W tracks, the ICC also effectively refused to grant the request of the Chicago & Alton Railroad to allow it to use the TP&W tracks at a reasonable fee—a point he makes by citing the commission's parting remarks on the fee arrangements: “We express no opinion as to the adequacy of the rental or the propriety of the other terms and conditions under which the Alton is now operating over the track of the TP&W. We have no authority to adjust that matter in this proceeding.” Sharfman then notes that Eastman, Farrell, Brainerd, and Aitchison dissented from the decision, leaving the impression (to me, at least) that they dissented regarding the majority's decision not to specify a fee, or more generally, regarding the effective nullification of the joint-use finding. However, Eastman dissented against the majority's finding that joint use was in the public interest (and with regard to their interpretation of Section 1, Paragraph 18, of the Transportation Act, which they argued gave them authority to prevent the discontinuance of the joint-use arrangements). Farrell, with Brainerd in concurrence, also objected to the majority's finding that joint use was in the public interest (and the majority's interpretation of Sec. 1, Par. 18). Aitchison made a silent dissent. If I am correct about Sharfman's interpretation, I have to conclude that he was incorrect that the dissents were directed at the majority's ruling on joint-use fees. More important, I do not think the majority would pursue so byzantine a course as to rule joint use to be in the public interest and then vitiate that ruling by declaring that, in effect, it would allow the TP&W to charge the Chicago & Alton a prohibitively high fee. I have not been able to determine whether the Chicago & Alton did in fact continue to use the main line tracks of the TP&W, but I read nothing in the ruling to suggest that the ICC intended the practice to cease.

In the Los Angeles Passenger Terminal cases, the ICC issued a certificate of convenience supporting the California Railroad Commission's efforts to compel certain railroads to construct a union passenger terminal in Los Angeles. The ICC did not go so far as to contend that it had the authority under the joint-use provision to compel construction, but it did support the efforts of California authorities who did have that power. In an interesting concurring opinion, Commissioner Eastman argued—somewhat speculatively—that the Transportation Act of 1920 probably did give the ICC the authority to compel construction of a union station. Relying on a combination of the joint use and other provisions of the Transportation Act, Eastman argued that the ICC should enter an order compelling construction of the station and allow the Supreme Court to clarify the limits of the law. Los Angeles Passenger Terminals Cases, 142 ICC 489; Eastman's speculations are found on 498–502; Harding appointees Lewis and McManamy joined Eastman in encouraging the commission to let the Supreme Court decide the limits of the ICC's authority under the joint-use provisions.

It is interesting to note that in the first ICC decision on the Los Angeles Terminal issue (100 ICC 421 [1925]), Commissioner Hall, a Wilson appointee, voiced a spirited dissent against the commission's support of the California Railroad Commission's efforts: “I am not prepared,” he wrote, “to take part in selection of sites and approval or disapproval of plans for railway structures, whether bridge, tunnel, or terminal, all over this broad land. I find nothing in the interstate commerce act which lays upon us any such duty” (at 461). This, and some of Hall's remarks in other cases, suggests that not all Progressive Era appointees conceived of the Transportation Act as tool for guiding the private decisions of railroad executives.

31. While first Hastings appears to have been proshipper, first York worked against shipping interests, as did first Port Arthur. Second Hastings appears to illustrate the ICC's turn away from cooperative use of facilities, but second York and second Port Arthur show the commission encouraging joint use. Commissioner Eastman, a Progressive famous for his dissents, voted with the majority in second Hastings and Hell Gate (against joint use); during this same period, however, he voted for expanding the trackage zone in second York. Commissioner Aitchison, another Wilson appointee, wrote the majority decisions in first Hastings, first York, second York, and Hell Gate. Commissioner Lewis, a Harding appointee, voted with Aitchison in each of these cases. Other Harding and Coolidge appointees voted for joint use in some cases and against it in others. In other words, actual commission decisions fail to show that Progressive Era commissioners advocated cooperation while Republican-era commissioners sided with the railroads.

32. Ninety-one principal steamship lines sailed from Manhattan, Brooklyn, and Staten Island, while only nine sailed from the New Jersey side of the port. The New York Harbor Case, 47 ICC 643 at 646, 651, 740, 741; Jacobs, Charles and Davies, John V., “New York City West Side Freight Problem, April 9, 1912,” Pennsylvania Railroad Company, Department Records, Executive Department, Hagley Museum and Library, Wilmington, Del., Acc. No. 1810, Box 141, File 9Google Scholar.

33. See Jacobs, and Davies, , “West Side Problem,” 4, 7Google Scholar, and Goodrich, E. P. and Nichols, Harry P., Report Upon the Elimination of Surface Freight Railroad Tracks of the New York Central and Hudson River Railroad, and A General Scheme of Improved Freight Handling Facilities at the Port of New York (March 1911), 16–17Google Scholar.

34. In March 1918, Congress passed the Federal Control Act, which limited government control to twenty-one months after the end of hostilities. Martin, , Enterprise Denied, 335–40Google Scholar; Kennedy, David M., Over Here: The First World War and American Society (Oxford, Press, 1980), 5–6, 252–54Google Scholar; Kerr, K. Austin, American Railroad Politics, 1914–1920: Rates, Wages, and Efficiency (Pittsburgh, 1968), 40–41Google Scholar.

35. Samuel Rea, “Pennsylvania Railroad New York Tunnel Extension: Historical Outline,” Remarks of Mr. Samuel Rea, Second Vice-President, at the Annual Dinner to the President Given by the Board of Directors of the Pennsylvania Railroad Co. (December 15, 1909), 56–81, James Forgie Collection, Smithsonian Institution, National Museum of American History, Division of Engineering and Industry, Box 46; Wilgus, William J., Proposed New Railway System for the Transportation and Distribution of Freight by Improved Methods in the City and Port of New York (Submitted to the Public Service Commission for the First District by the Amsterdam Corporation, September 25, 1908)Google Scholar; Tomkins, Calvin, Report on Transportation Conditions at the Port of New York, with Especial Reference to a Joint Railroad Terminal in Manhattan on the North River Above 25th Street (July 1910)Google Scholar.

36. Cohen, Julius Henry, They Builded Better Than They Knew [1946] (Freeport, N.Y., 1971), 281, 291–92, 296Google Scholar; Doig, , “Entrepreneurship in Government,” 77–86Google Scholar.

37. Port of New York Authority, Report, with Plan for the Comprehensive Development of the Port of New York (Albany, 1921), 11Google Scholar.

38. Bard, , Port of New York, 41–45, 63–92Google Scholar; Cohen, , They Builded Better Than They Knew, 279–80Google Scholar. Doig, “Regional Planners and the New York Minefield.” There were, of course, unfavorable signs. For instance, in 1925 the United States Supreme Court gave strong indications that the Port Authority had no power to stop railroads in the port district from building bridges or other facilities that were not in accord with the Port Authority's comprehensive plan; see City of Newark, et al. v. Central Railroad Company of New Jersey, et al., 267 US 377 (at 386 especially).

39. Kerr, , American Railroad Politics, 128–30Google Scholar.

40. In my view, the Transportation Act was primarily a response to the failure of ICC regulation, especially with regard to rates, between 1903 and 1917. Even though the ICC's New York Harbor case illustrated its concern for regional efficiency and its disgust with destructive competition, the commission was not as driven by those issues as the Port Authority. Although I think it is possible to show evidence (like the rhetoric of the New York Harbor case) that the commission as a whole or individual commissioners expressed keen interest in efficiency or cooperation, neither efficiency nor cooperation was ever the guiding principle of national transportation regulation to the same degree that those principles guided the work of the Port Authority. At the port of New York, efficiency and cooperation were directly related to the problem of providing adequate freight-handling facilities; continued inefficiency and waste at the port would eventually erode New York's competitive position and lead to ports taking business that was historically (and some would argue, rightfully) New York's—a case made variously by Julius Henry Cohen, railroad planner William Wilgus, and New York City Docks Commissioner Calvin Tomkins, among many others. Although Louis Brandeis and some efficiency experts argued—most notably in the Eastern Rate Case of 1910 (Advances in Rates–Eastern Case, 20 ICC 243)—that efficiency should be a primary concern for the railroads and the ICC, the language of the ICC's decisions shows that efficiency played only a minor role in the commission's reasoning, even in the Eastern Rate case. Thus, while I believe that Kerr is correct to emphasize the important role of scientific management in the debates over the Transportation Act, I believe that the failure of prewar regulatory policy played a more decisive role in shaping the specifics of the Act itself.

41. Railroad Commission of Wisconsin et al. v. Chicago, Burlington & Quincy Railroad Company, 257 US 563 at 583 (emphasis added); see also 584–85; and Dayton-Goose Creek Railway Company v. United States, Interstate Commerce Commission, et al., 263 US 456 at 478.

42. The commission recaptured earnings over the six percent limit and put half in a reserve fund. If a railroad failed to earn its six percent the next year, it could draw on the reserve fund to pay dividends, interest, or rent. The ICC took the other half of the recaptured earnings and placed it in a contingent fund. The ICC could use the contingent fund to make loans to other carriers for capital expenditures. See Section 15A, Paragraphs 2, 3,6, 7, and 10, in Mac Veagh, , Transportation Act, 384–87Google Scholar. For an analysis of the consolidation controversy, see Carson, Robert B., Main Line to Oblivion: Tne Disintegration of New York Railroads in the Twentieth Century (Port Washington, N.Y., 1971), 66–97Google Scholar.

43. To be sure, individual commissioners may have favored more sweeping national direction of transportation—Joseph Eastman's long-standing support for government ownership of railroads being the main example. But that was not the policy written into the Transportation Act.

44. There is evidence, of course, to suggest that some ICC members (along with some members of Congress) were interested in at least a more ambitious approach to joint use than the Transportation Act permitted. However, even if the ICC wanted to pursue cooperative use of terminals through the joint-use provision in the way the Port Authority envisioned, the Transportation Act emerged from congressional bargaining as an imperfect regulatory instrument. The Transportation Act did not contain unambiguous guidelines for the regulation of interstate commerce. Although the prewar rate cases were a primary influence on the Transportation Act, the federalization of the railroads during World War I created the opportunity for an array of other influences to contribute to the revamping of the ICC's mission, including those who wanted government ownership. The compromises that emerged from the bargaining process were plagued with inconsistencies—including the recapture clauses (repealed 1933) and the railroad consolidation plan (which was carried out largely by the railroads along the lines that suited them best). While the Transportation Act did include new rules on the cooperative use of terminal facilities, the details of the joint-use provision (as written by Congress) severely restricted the usefulness of the ICC's new power, insofar as the joint-use provision represented a potential tool for promoting even a limited range of cooperative relationships between carriers.

45. Shortly after the Armistice, ICC commissioners sent Congress their own recommendations for the reconstruction of the Interstate Commerce Act, including the revision of terms relating to cooperative use of terminal facilities. A majority of commissioners noted that revisions of the Act should include “elimination of wasteful or unduly expensive competition,” “the most efficient utilization of equipment,” “limitation of railway construction to the necessities and convenience … of the public,” and “emancipation of railway operations from financial dictation,” among other suggestions. The commissioners also affirmed that private investors needed to be adequately compensated if they were to be expected to provide sufficient facilities and service, and that the commission needed “broadened” regulatory powers to strike the “proper balance” between returns to capital and expenditures on operation, maintenance, and improvement. 33rd Annual Report of the Interstate Commerce Commission, December 1, 1919 (Washington, D.C., 1919), 1–6Google Scholar. Commissioner Wooley added some of his own remarks (7–8), and Commissioner Eastman, who had just been appointed, added a personal statement (9), arguing, it should be emphasized, for continued government ownership. See also Fuess, , Joseph B. Eastman, 98–100Google Scholar.

46. “Open” terminals were protected by the following exception written into the Interstate Commerce Act: “this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business.” When Commissioner Edgar E. Clark appeared before the House Committee on Interstate Commerce, he emphasized that the commission moved very cautiously regarding terminal sharing because the ICC believed that compelling carriers to share facilities (in those cases where it would be in the public interest) might be construed by the Supreme Court as a “taking” of private property. See Vanderblue, Homer Bews and Burgess, Kenneth Farwell, Railroads: Rates, Service, Management (New York, 1923), 274Google Scholar; Hearings before the Committee on Interstate and Foreign Commerce of the House of Representatives, 66th Cong., 1st Sess., on H.R. 4378, vol. 1 (Washington:, D.C., 1919), 16–17Google Scholar. I should point out here that I use Clark because he was chosen by the ICC to represent its views before Congress. Other commissioners did testify on various issues, but I have found no other testimony by a commissioner relating to the issue of terminal sharing.

There were other reasons that the distinction between “open” and “closed” terminals was not successful in resolving the terminal issue. In 1916 the Supreme Court had ruled that where terminals were jointly owned by two railroads they could remain “closed” (in other words, two railroads could avoid opening a given terminal to other railroads by making the terminal jointly owned rather than owned by one and open to the other). Carriers were also hesitant to share terminals because a carrier that had invested wisely in enlarged facilities ran the risk of losing some of the benefits of those facilities by throwing them open to every other road (and this tended to dampen enthusiasm both for investment and cooperation). See Sharfman, , Interstate Commerce Commission, 3A: 411–12Google Scholar and Vanderblue, and Burgess, , Railroads: Rates, Service, Management, 272–78Google Scholar.

47. 33rd Annual Report, 6.

48. Hearings before the Committee on Interstate Commerce … on H.R. 4378, 1: 73, 104Google Scholar. Although the ICC recommendation on terminal facilities clearly shows that commissioners were interested in promoting cooperative relationships, it is neither a denunciation of private management nor a call for national, regional, or local unification of terminal facilities. Clark himself told Congress that he believed that the “ideal” terminal situation involved either municipal ownership or ownership by a single terminal company. He did not suggest, however, that the joint-use provisions of the Transportation Act would encourage municipal ownership or that the ICC would use them for that purpose. Indeed, his testimony indicated that he did not believe all terminal sharing was necessarily in the public interest. Instead, it indicated that the ICC hoped that a revised approach to terminal use would “bring about agreements between competing carriers,” and that such an approach might allow the ICC to open terminals previously closed in order to improve local service.

49. The House version of the Transportation Act, written by Representative John J. Esch (the Wisconsin Republican who, as a member of the ICC, was one of the four dissenters in second Hastings), gave the commission the power to determine reasonable for joint use. Esch himself envisioned a more ambitious program of terminal sharing than did Commissioner Clark. In November 1919, Esch wrote of the joint-use provision: “The advantages of joint use of terminals have been fully demonstrated under Federal controlr, and it is to preserve these advantages that [the power to compel joint use] has been granted to the Commission in this bill. While the question of compensation may present some difficulties, these can be overcome.” And in language similar to that used by Julius Henry Cohen in Hell Gate, Esch added: “The right of the individual carrier to the exclusive use of its own property should be made to yield to the superior right of the public.” Esch linked the mechanisms of federal control to the prewar investment problems, as well as the potential for future cooperation: “In these days, when the cost of terminals in the larger cities is almost prohibitive, the joint use of terminals under regulations prescribed by the commission will result in large economies in operation, and in many instances add to the convenience of the public.” Mac Veagh, , Transportation Act, 252Google Scholar (emphasis added). Toward this end, Esch's bill gave the commission the power to “require the terminals of any carrier to be open to the traffic of other carriers upon such just and reasonable terms and conditions, including just compensation to the owners thereof, as the commission … may … prescribe.” Mac Veagh, , Transportation Act, 521Google Scholar. This is from H.R. 4378 of June 2, 1919. The same wording appears in the other versions of the Esch bill: Mac Veagh, , Transportation Act, 616Google Scholar, H.R. 10453 of November 8, 1919, and Mac Veagh, , Transportation Act, 645Google Scholar, H.R. 10453 of November 17, 1919.

In spite of Esch's prediction, however, the question of compensation was not put to rest satisfactorily by the Congress. In the Senate version of the Transportation Act—the so-called Cummins bill—the ICC was given the power to compel joint use, but its authority over compensation was to be guided by “the principle controlling compensation in condemnation proceedings.” Although Esch persisted in his attempts to free the ICC from this restriction, Congress finally agreed to the more conservative compensation provisions of the Cummins bill. Mac Veagh, , Transportation Act, 546Google Scholar; this language is from S. 2906 of August 23, 1919. The same wording appears in the other versions of the Cummins bill: Mac Veagh, , Transportation Act, 575Google Scholar, S. 3288 of October 22, 1919, and Mac Veagh, , Transportation Act, 667Google Scholar, H.R. 10453 of December 20, 1919 (this final version is H.R. 10453 with everything after the enacting clause and substituting the text of S. 3288). On this legislative history, see Mac Veagh, , Transportation Act, 7–8Google Scholar. This change can hardly be attributed to pro-railroad sentiments by Senator Albert Cummins, however, since Cummins had made his political career in Iowa and the U.S. Senate by attacking the railroads. Indeed, Albro Martin described Cummins as “one of the most radical midwestern Insurgents” who advocated the “repressive” Progressive Era policy of denying the railroads badly needed rate increases. And while Cummins apparently had a change of heart between 1910 and 1920 (Martin terms Cummins's support of the Transportation Act of 1920 a “belated apology”), he cannot be described as a railroad advocate; see Enterprise Denied, 150, 184–85.

50. In its recommendations to Congress concerning terminal sharing, the ICC suggested that it should be given the authority to determine compensation in joint-use arrangements: “Where this power [to compel joint use] was exercised the regulating tribunal would, as a matter of course, determine the reasonable compensation to be paid to the owning carrier for use of its property by the carriers or traffic so using the property” (33rd Annual Report, 6; see also Sharfman, , Interstate Commerce Commission, 3A: 416–21Google Scholar). In other words, the ICC wanted the power both to compel joint use and to establish reasonable fees for such use, in the same way that it could determine reasonable freight rates.

51. In this case, “public use” meant use by another carrier. Second Hastings, 107 ICC 208 at 212. This was explicitly recognized in first Port Arthur: “what complainant seeks,” wrote Commissioner Campbell, “is in substance an arrangement legally possible only through a condemnation of the terminals of the Kansas City Southern for the use of its competitor, the Southern Pacific.” Compensation was, therefore, not a trivial matter in the adjudication of joint-use matters. Perhaps more important, the joint-use provision only confirmed Commissioner Clark's suspicion—that compelling joint use was in fact a taking (first Port Arthur, 73 ICC 361 at 362). The import of such a procedure was also recognized by Commissioner Eastman in his dissent in Chicago & Alton, where he noted that the taking of private property for public use was a “drastic exercise of power,” “of so radical a nature and of such far-reaching importance” that it required explicit directions governing compensation, as Congress had done in the joint-use provision; Chicago & Alton, 146 ICC 171 at 184; Mac Veagh, , Transportation Act, 241Google Scholar.

52. Mac Veagh, , Transportation Act, 241Google Scholar.

53. Stenographer's Minutes, December 7, 1923, page 650, Formal Docket No. 11508, National Archives, Washington, D.C.

54. First Hastings, 69 ICC 489 at 489–92. The Hastings Commercial Club also gave testimony that the failure of the Burlington and the Milwaukee to interchange traffic on a regular basis had handicapped the town's growth for some years.

55. First Hastings, 69 ICC 489 at 493.

56. The Milwaukee's terminals were adequate for average traffic but not for peak-load traffic. Requiring the Burlington to furnish cars to Shane Brothers via the Milwaukee's terminals appeared therefore to be a method for serving shippers when they could not be served by the Milwaukee.

57. Meyer to Nelson, March 8, 1923, Formal Docket No. 11508. See also Nelson to ICC, March 6, 1923.

58. First Hastings, 69 ICC 489 at 499, 500; two other Wilson appointees concurred in Hall's dissent. Even in first York, the Western Maryland agreed with the York Manufacturers Association that the trackage zone should be extended.

59. Like the Port Authority, therefore, the ICC hoped that the railroads would cooperate. When the railroads did not come to terms, the issue of compensation became an entering wedge for a full reconsideration of the public interest question, giving the railroads an opportunity to argue for their interests before the commission.

60. Initial estimates by the railroads put the cost of using the Milwaukee's terminal between $19,632 and $10,247 annually. In its efforts to settle this dispute, the commission, following the letter of the joint-use provision, explored judicial precedents on compensation in condemnation proceedings, detailing all the possible components of value that might be used to fix a just and reasonable fee (second Hastings, 107 ICC 208 at 210–15). In his analysis of second Hastings, Sharfman noted that the compensation question played the major role in changing the commission's ruling. He cites the above passage as well as the dissent by Commissioner Balthasar Meyer (a Taft appointee) and three other commissioners (McManamy, Esch, and Campbell—all Harding appointees). Meyer argued that “more or less technical legal views based upon condemnation proceedings in other fields should not prevent a common-sense measure of compensation.” Meyer thought the commission should fix a fee, allowing the Hastings shippers and the Burlington to split the cost as they saw fit. Meyer made his case in language that Julius Henry Cohen (who, not coincidentally, was acting as counsel for the Hastings Commercial Club) must have appreciated: “The public interest requires the fullest utilization of existing terminal facilities in the interest of all the railroads which the industries located upon the terminals desire to use.… A liberalization of the use of terminal properties is in the interest of all railroad owners and users. It is in the spirit of the transportation act.” Given that John J. Esch, one of the principal authors of the Transportation Act and a sitting commissioner, concurred in the dissent, Meyer certainly had a point. Second Hastings, 107 ICC 208 at 218; Sharfman, , Interstate Commerce Commission, 3A: 416–17Google Scholar.

61. After citing the balancing test from York, the commission noted: “In the instant case any traffic gained by the Burlington would be at the expense of a corresponding loss to the Milwaukee, and although this is not controlling, we should consider it in arriving at our conclusion as to the public interest. The cost to be met by the user carrier, as compared with the traffic served, is an important element. We must also consider the financial consequences to the carriers involved and the inconveniences that may result to the shipping and traveling public in general. The record upon which our former report was based contained no evidence as to the compensation on the principles controlling in condemnation proceedings. Fairness demands that the whole question of ‘public interest’ be now reconsidered on the more complete record before us, especially as no order was entered by us, and the record was expressly held open, and we are considering what order is appropriate upon the whole record” (second Hastings, 107 ICC 208 at 216–17).

62. Freight cars in Hastings were set on sidings where the Milwaukee switch engine could conveniently pick them up for connection to through trains. To get Hastings cars to the Burlington, however, the Milwaukee switch engine, at its convenience, would have to haul cars through its already crowded terminal and then over part of the heavily traveled Burlington mainline from Chicago to Minneapolis, and then store the Hastings cars on Burlington holding tracks on the north side of the river. Testimony showed that it took from 20 to 50 minutes for the Milwaukee switch engine to make that journey. Burlington traffic officials estimated that Hastings would probably send a maximum of 694 cars per year via the Burlington—about two cars per day, or about 15 percent of the traffic it sent via the Milwaukee. They noted that the initial outlay for joint use of the Milwaukee's terminals, not to speak of the switching costs, would hardly warrant such a small amount of traffic (second Hastings, 107 ICC 208 at 215–16).

63. Second Hastings, 107 ICC 208 at 217.

64. Second Hastings, 107 ICC 208 at 217. The evidence in this more complete record is nothing unusual compared with other joint-use decisions; indeed, it seems likely that the commission would not have found joint use in the public interest had all this information been presented in the first hearing. Although this is my own speculation, I offer Commissioner Eastman's actions as supporting evidence. Eastman voted with the majority in both Hastings decisions. I believe that had joint use been in the public interest in second Hastings, or had it been reversed principally over the issue of compensation, Eastman would have dissented just as he did in the Missouri-Kansas-Texas Railroad case, decided in November 1925, only two and a half months before second Hastings. That case involved the joint use of the Kansas City Terminal Railway (KCT). Each of the twelve railroads that used the KCT paid one twelfth of the fixed charges of the road and then paid operating fees on a user basis. Two of the smallest and financially weakest railroads (which used the KCT only infrequently) found their fees for fixed charges considerably out of proportion to their actual use of the terminal. The smaller roads petitioned the ICC under the joint-use provision to free them from the burdensome contract. The commission found that while the continued use of the KCT was in the public interest, the Transportation Act did not give it the explicit power to alter contracts to facilitate joint-use arrangements. Eastman wrote an angry dissent from the majority opinion, arguing that neither the issue of compensation nor the lack of explicit authority to alter contracts should stop the ICC from correcting the injustice done to the smaller carriers using the KCT: “If we are wrong,” he insisted, “the courts will correct us, but at least we shall have given the interpretation which we believe coincides with the public interest a fighting chance for life.” Eastman passionately maintained that the ICC should construe its own authority broadly when the public interest was hanging in the balance. See Missouri-Kansas-Texas Railroad Company v. Kansas City Terminal Railway Company, 104 ICC 203 at 233. The absence of an Eastman dissent in second Hastings suggests to me that the commission did the right thing reversing itself on the question of public interest.

65. Port of New York Authority v. Atchison, Topeka & Santa Fe Railway Company et al., 144 ICC 514 at 523.

66. Port of New York Authority, 144 ICC 514 at 525–27 (quotations).

67. Port of New York Authority, 144 ICC 514 at 527.

68. Port of New York Authority, 144 ICC 514 at 527–33. Evidence also showed that the route between the Central's main tracks near the Hudson and the Hell Gate bridge posed considerable operating difficulties. The movement of trains through the New York Central's Mott Haven yards (which handled traffic destined for Grand Central Terminal) would have been blocked by trains destined for the Hell Gate route. The Port Morris yards (the interchange point between the New York Central and the New Haven) were awkwardly designed and would have required breaking up New York Central trains into short sections for their journey to Long Island. The Fresh Pond yard, where traffic would begin the move across the Hell Gate bridge, was frequently too overcrowded to handle existing traffic. And even though this route had been used during the period of federal control, testimony suggested that its primary benefit was as an emergency route. At 535 the commission noted that the route would be useful as an emergency or safety-valve route when the harbor was badly congested. I should add, however, that neither the Port Authority nor the ICC knew as much about the operation conditions of the railroads as they might have. As Jameson Doig has reminded me, the Port Authority lacked subpoena power to gain access to the internal records of the railroads—a power that Cohen had envisioned for the Port Authority, but had been denied in the legislative process. As such, the information on the operational difficulties at Long Island City and elsewhere came exclusively from the railroads themselves, who undoubtedly slanted the facts to suit their case.

69. Port of New York Authority, 144 ICC 514 at 521–22.

70. Port of New York Authority, 144 ICC 514 at 523–24, 533–34.