of a system upon which to expend the money first. Then I think the national commission, or whoever had charge of the Government expenditures in connection with the State highway commissions of the different States or the State highway commission of our State, should decide on a general plan and specifications for the construction of roads; that is, jointly, having a joint interest in the matter, and they should establish certain conditions, the grade line and surfacing, so as to best accommodate the travel and suit the interests involved. Then I think the State should let all contracts for doing that work, subject, of course, to the approval of the Federal commission, and I think the Federal commission need not be burdened with the continuous inspection of that work. I do not think there is any need for continual inspection by the Government, because we have 40 or 50 assistant engineers and our men are familiar with the country; they know best what to devise in the matter of construction and they can be intrusted with that, and if not, we will have to drop them out.

Senator SWANSON. You think the proper plan would be for the initiation to be with the State, with the approval of the Federal authorities?

Mr. COOLEY. Yes.

The CHAIRMAN. Do you try to work out any general plan to build roads for the whole number of counties in your State?

Mr. COOLEY. We haven't quite reached that. We have not a welldefined plan or the cost.

The CHAIRMAN. Can a plan be evolved, and is one applicable to your whole State?

Mr. COOLEY. I think it would have to be modified to suit existing conditions, as, for instance, we have 10,000 square miles of country that is practically undeveloped, and we have certain men in certain portions of this country who go to market only twice a year—once on snowshoes and once in a canoe. This map will show there are very few State roads in there. This is the territory in through here [pointing at map]. That country is gradually developing, and we are encouraging the opening up of new roads wherever we can.

The CHAIRMAN. The plan is to improve your present road system rather than to add new roads up in here? [Pointing.]

Mr. COOLEY. We have seldom had new roads. The proposition is, the State owns about 2,000,000 acres of land and there will be a proposition presented to the present legislature asking for an appropriation to open up and develop new territory by cutting new roads through. That means new earth roads.

The CHAIRMAN. Then the way the good-roads matter appears to you it is better to improve the transportation facilities you already have than to extend the present system?

Mr. COOLEY. Rather than to extend the present system, except it may be that in this undeveloped portion of the State we are to assist in the development and the opening of the country.

The CHAIRMAN. Before we adjourn I should like to say to you gentlemen who are present that we will be very glad to receive any written statements you may care to submit bearing on this question, and I would ask you to send them in as soon as possible and address them to me, so that they will all get into the committee's hands.

STATEMENT OF HORACE ATKISSON.

At the request of Senator Overman I will direct that the following discussion of the constitutional problems involved be inserted in the record:

THE EXPRESS POWER OF CONGRESS UNDER THE CONSTITUTION TO CONSTRUCT POST ROADS.

[By Horace Atkisson, of the Washington City Bar.]

From the early history of national road building in the United States, and the debates in Congress as to the power of the General Government under the Constitution to construct roads from one State to another, as well as from the writings of the few authors who have undertaken to explain the meaning of this feature of the Constitution, it appears that the whole question hinged upon the implied power given to Congress to construct roads and canals and improve harbors and watercourses for the general welfare and for the common defense; and that the express power to establish post offices and post roads received little, if any, attention in the controversy.

Roads were then considered merely as internal improvements, and the question of their construction was therefore placed on the same footing as the improvement of rivers and harbors. The question of their use for the convenient transportation of mails hardly entered into the discussion at all.

This question of internal improvements had arisen before the adoption of the Constitution in 1787, negotiations having taken place between different States in regard to undertakings of this sort, such as the construction of roads and canals and the improvement of rivers and harbors which would be to their mutual advantage. In the Federalist, No. 14, Madison himself pointed out how greatly the Union would be strengthened in the future in this way.

In 1806, during Jefferson's administration, a bill was passed for the construction of a national road from Cumberland in Maryland to a point in the State of Ohio; but a bill for the preservation of this road was vetoed by Monroe in 1821 as being unconstitutional, although he recommended an amendment to the Constitution giving Congress the power to make improvements for great national purposes.

66

Jefferson, Madison, and Monroe favored internal improvements, but denied that the Constitution gave Congress the express power to make them, although Madison, in his message of December 3, 1816, spoke expressly of the "existing powers" of Congress which needed only enlargement." On March 14, 1818, a resolution was passed by the House of Representatives that Congress had the power to appropriate money for the construction of roads and canals and for the improvement of watercourses.

In opposition to this power of Congress there was much "quibbling over words and legal technicalities' and much "reasoning in circles." For example, in his message of 1823, vetoing the appropriation for the improvement of the Cumberland Road, Monroe contended that the "building of the Cumberland Road had been originally commenced and so far executed under the power vested in Congress to make appropriations for the public welfare." Under this he claimed that, "while Congress could not make the roads, it could appropriate money in aid of their construction." Clay declared it absolutely inadmissible to appeal to this particular right, because "the appropriation of money is a result and not a cause."

Another contention raised by those in opposition to this power of Congress was that it would be taking jurisdiction by the Federal Government over a large extent of territory belonging to the States in violation of the rights of those States. There was much needless debate on this phase of the question; and much undue importance was attached to it, for the reason that even those who were most strongly inclined to the view that Congress had such power to make internal improvements, at the same time conceded that it must be done with the consent of the State, just as the consent of the State is necessary to the erection of forts, magazines, arsenals, and docks. However, Clay, in 1818, contended that the States and the Federal Government had concurrent rights of eminent domain, which entitled them to make roads and even to seize private property for such purposes, provided an equivalent was paid therefor. In

66

making this contention, he relied on the fifth amendment to the Constitution: Private property shall not be taken without just compensation." In this view he was supported by Mr. Cushman, of New York, and Mr. Lowndes, of South Carolina, the latter claiming, however, that only an emergency would justify such an act and that the necessity should be determined by the Govern ment itself.

Some rather vague ideas on the subject seemed to prevail in Congress, if one may judge from a vote taken on March 14, 1818. By 90 to 75 votes it was decided that Congress could appropriate money for the construction of roads and canals; by 84 to 82 that it had not the right to construct post and military roads; and by 83 to to 81 that it could construct canals for military purposes. In the inaugural address of President John Quincy Adams, on the 4th of March, 1825, he alluded to this question, and his opinion seemed to be in favor of the constitutional right and of the policy and wisdom of the liberal application of the national resources to the internal improvement of the country. He intimated that speculative scruples on this subject would probably be soothed by the practical blessings resulting from the application of the power, and the extent and limitations of the General Government in relation to this important interest settled and acknowledged to the satisfaction of all. Says Chancellor Kent, Vol. I, page 268; "This declaration may be considered as withdrawing the influence of the official authority of the President from the side on which it has hitherto pressed, and adding it to the support of the preponderating opinion in favor of the competency of the power claimed by Congress."

Three bills for Government subscription to the Maysville Turnpike Road were passed and vetoed by President Jackson in 1830; but it soon appeared that he laid claim only to the right to decide in each particular case whether or not the matter was properly a national undertaking, and whether the use of Federal resources was expedient. (Niles Register, XL, 106.)

President Jackson, in 1830, declared himself to be of the opinion that Congress did not possess the power to construct roads and canals, or appropriate money for improvements of a local character; but he admitted that the right to make appropriations for such as were of a national character had been so generally acted upon and so long acquiesced in as to justify the exercise of it on the ground of continued usage. He objected, upon that distinction, to the bills authorizing subscription to the Maysville and Rockville Road Cos. as not being within the legitimate powers of Congress, those roads being confined within the boundaries of a single State, Kentucky.

During all this time the constitutional question did not progress an inch, but one internal improvement after another was undertaken, and the system was constantly pushed further and further. The same objections that were raised to the construction of roads by the Federal Government were raised against the improvement of rivers and harbors and to the same extent. In 1846 President Polk vetoed a bill for the improvement of rivers and harbors on the ground that it was unconstitutional. In 1847, the House of Representatives resolved by a large majority that the General Government has the power to improve harbors and rivers for the advantage of commerce and for the common defense. Still we hear little or no mention of the undoubted power of Congress to construct post roads by force of the express power given to it in Article I, section 8, of the Constitution: 'Congress shall have power to establish post offices and post roads."

66

Upon the construction of this clause of the Constitution two opposite opinions have been expressed. One maintains that the power to establish post offices and post roads can intend no more than the power to direct where post offices shall be kept and on what roads the mails shall be carried. Or, as it has been on other occasions expressed, the power to establish post roads is a power to designate or point out what roads shall be mail roads, and the right of passage or way along them when so designated.

The other maintains that, although those modes of exercising the power are perfectly constitutional, yet they are not the whole of the power and do not exhaust it. On the contrary, the power comprehends the right to make or construct any roads which Congress may deem proper for the conveyance of the mail and to keep them in due repair for such purpose.

There appears to be only one instance in which this much-mooted question reached the courts and received judicial interpretation. This was the case of Dickey v. The Turnpike Road Co.. reported in Seventh Dana, page 113 et seq., wherein the Kentucky court of appeals decided that the power given to Congress by the Constitution to establish post roads enabled them to

make, repair, keep open, and improve post roads when they should deem the exercise of the power expedient. In commenting on this celebrated case, Chancellor Kent concludes with this sentence: "This important decision was well supported by sound reasoning."

To contend that this article confers on Congress the power only to designate or point out some road over which the mails shall be caried is hardly consistent with the powers it exercises in other cases. From the same clause the words "to establish post offices" have apparently been assumed by Congress to give it the power to purchase buildings, or to purchase land and erect thereon structures to be used as post offices. From its express power to lay and collect taxes, duties, etc., it erects customhouses; from that "to raise and support armies, etc.," it purchases the land and erects the buildings thereon for a military academy; and a naval academy likewise from its simple express power "to provide and maintain a navy." Other instances ad infinitum might be cited. What is the difference, save in the application, between constructing a house and constructing a road?

No word could possibly have been chosen that would have given more explicit power to Congress than this word "establish."

In his Commentaries on the Constitution, Mr. Story says: "Establish," according to Johnson and Webster, “means to settle firmly, to confirm, to fix, to form, to found, to build firmly, to erect permanently. This is also the popular and generally accepted meaning of the word. There is no such known sense of the word establish as to direct, designate, or point out. Again, in legislative acts, in State papers, in the Constitution itself, the word is found with the same general sense now insisted on-to create, to form, to make, to construct, to settle, to build up with a view to permanence. To construe the word in any of the instances used in the Constitution as to designate or point out would be absolutely absurd. For example, to establish justice, to establish the Constitution, to establish courts, to establish naturalization and bankruptcy laws."

The opponents of this power of Congress to build post roads have laid great stress upon the fact that Congress has never undertaken to make any roads, but has merely designated those roads over which the mails should pass. Is this position tenable? Does the statute of limitations run against the Government? Does the Government lose a right by nonuser?

However, Congress has never designated any roads over which mail shall be carried. It has always been satisfied to name the points between which mail shall be carried, and until this day of railroads and its contracts with them has never designated or pointed out over which of two or more roads the mail shall be carried. All roads and all canals and other watercourses over which the mails are carried have by congressional enactment been made post roads, but this designation has always followed previous choice of those routes by the mail service.

In the grants and concessions made by the Government to the Mobile & Ohio Railroad, the Illinois Central, and the various Pacific railroads, by means of which those roads were constructed, Congress certainly designated those roads as mail roads. But if surveying a line through the wilderness, leveling hills and filling valleys, placing ties and laying steel rails do not constitute construction, it would indeed be difficult to define the word, and in these instances designation certainly preceded construction.

Further, it is not admitted that Congress has not exercised this very power with reference to this object. In addition to the Cumberland road, above referred to, Congress, on April 21, 1806, authorized the construction of a road from Athens on the frontier of Georgia to New Orleans and a road or roads through the territory lately ceded by the Indians to the United States from the Mississippi to the Ohio and the former Indian boundary line established by the treaty of Greenville; also a road from Nashville in Tennessee to Natchez in Mississippi. (For a number of other instances see S. Doc. 300, 24th Cong., 1st sess.)

To quote again from the language of Mr. Story: "This question as to the right to lay out and construct post roads is wholly distinct from that more general power to lay out and make canals and military and other roads. This latter power may not exist at all, even if the former should be unquestionable. It turns upon a question of implied power. The other turns upon the true interpretation of words of express grant. Nobody doubts that the words 'establish post roads' may, without violating their received meaning in other cases, be construed so as to include the power to lay out and construct roads. The question is whether that is the true sense of the words as used in the Constitution.

And here, if ever, the rule of interpretation, which requires us to look at the nature of the instrument and the objects of the power as a national power in order to expound its meaning, must come into operation."

In accord with this view would appear to be that of Hon. John Randolph Tucker, who, in his work on the Constitution, says:

"The establishment of post offices may include the power to create them if necessary and proper to carry out that power. The same construction applies to the words 'post roads.' It may involve the construction of roads if necessary and proper for postal purposes. The practice of the Government under the confederation and under the Constitution has been to designate, and thus give legal sanction and status to, the roads of the States as the postal roads of the Government. If there were no roads, they being necessary to the transmission of mail matter, to make a road under such circumstances would be a fair exercise of power. The fair construction of the whole clause therefore is that as the mails can only be carried on roads upon the land, the power to establish post roads was intended to grant the power to make them, if there were none already made, where roads were necessary for postal purposes."

No consideration is here given to the question of expediency or to the great commercial, political, and military advantages which would accrue to the whole country and to all of its people from the construction or aid of these roads by the Federal Government. That phase of the question has been too ably dealt with for a long time past by speakers and writers in and out of Congress to call for more than passing notice here, and the opinion in favor of such improvements seems almost unanimous. Neither has any stress been laid upon the implied powers of Congress or that clause which gives it the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, etc."

It is contended that Congress has the power to aid in the construction, to construct, to improve, to repair, and to keep open such roads as may be necessary and convenient for the transmission of mails. The grounds for such contention are the words of express grant in the Constitution itself; the judicial sanction which that view of the question has received in the only case on the subject which has ever reached the courts; the unanimous opinion of the standard-law writers on the subject; and the precedents set by the contracts heretofore entered into between the Government and various railroads by which those roads received material assistance in their construction and were in turn designated as post roads.

VIEWS OF HIGHWAY COMMISSIONERS AND OTHERS.

For the purpose of securing the views of a considerable number of men who are specially qualified to speak upon the subject of highway improvement, the chairman sent a circular letter to all the State highway commissioners and others who have been connected extensively with highway improvement. These letters were very general in character and were designed to secure the general views of these gentlemen.

The following is a copy of the circular letter:

CONGRESS OF THE UNITED STATES,

JOINT COMMITTEE ON FEDERAL AID

IN THE CONSTRUCTION OF POST ROADS, Washington, D. C., December 21, 1912. MY DEAR SIR: The last session of Congress created a joint committee to investigate the question of Federal aid to road improvement in the various States. The joint committee now has that matter under consideration and we would be very glad to receive information from you regarding it. We would like your views:

(1) As to a general plan upon which this Federal aid should be given.

(2) To what extent the plan should require the State or local authorities to contribute to the amount of money appropriated; and