ROAD HOGS
STREET-WANDERING SWINE had been an abiding annoyance for Baltimore’s public authorities since the 1730s, when the town commissioners unsuccessfully attempted, first, to fence the hogs in, and then to fence them out. In 1812, the mayor and city council sought to meet the problem with an ordinance that declared open season on hogs. Any resident could legally kill or “seize, take and dispose of, for their own use, all swine” caught roaming the streets, lanes, or alleys of the city. The municipal authorities periodically placed notices in local newspapers to remind Baltimoreans that they could hunt for pork on the city streets. Later, in 1816, the city imposed a fine of two dollars per hog per day on owners of street pigs, but the ordinance did not specify how the ownership of stray hogs might be established.1
The situation grew more complicated when Baltimoreans realized there was something to be said for wayward swine. The hogs would consume almost any sort of garbage, and during the warm months of summer, when offal in the streets became awful, pigs performed a valued public service. An ordinance of 1821 made it lawful for hogs to roam at large from May 1 to November 1, but only within the limits of direct taxation, where hog hunting would be prohibited. In those parts of the Eastern and Western Precincts still exempt from city taxation, hog hunters could lawfully pursue their quarry year round.2
In November, swine restrictions applied once again across the city, and the city bailiffs began the annual hog roundup. The swine caught in their dragnet were taken to one of the city’s public markets to be auctioned off to the highest bidder. By 1828, Mayor Jacob Small pronounced the system a failure: “Three or four bailiffs accompany a covered cart, driver, and four persons, who seize swine under the protection of the Bailiffs, and convey them to the market . . . Persons (frequently females) follow the Carts and become the purchasers of those they think proper to claim, at from 5 to 100 cents each, and from the clamour they create, no person will bid against them, to this there would be no objection, provided they would keep them out of the street, but the next time the Carts take the circuit, the same swine are again found.” Small suggested an alternative to the stray-pig auction. Instead of selling swine to the highest bidder, the city could donate the hogs to the trustees of the city-county almshouse.3
This arrangement would feed poorhouse inmates at the expense of poor people in town. The hogs that roamed the streets usually belonged to impoverished Baltimoreans who had insufficient real estate to accommodate pigsties. They economized on pig feed by sending their swine into the streets of Baltimore to find food. One council member observed that the “several ordinances . . . for preventing swine from going at large within the limits of direct taxation have been found to operate severely on the poorer classes of the community.” He introduced a proposal that all such ordinances should be repealed, but failed to persuade a majority of his colleagues to go along. A local physician had recommended that poor families purchase piglets in the early spring and let them forage on the city’s streets during the seven months of mild weather. A street pig could provide a household with as much as 300 pounds of meat through the winter.4 The city’s November pig roundup would deprive these families of their hogs just when the pigs were ready for slaughter and consumption.
An 1828 ordinance provided the mayor with a $200 appropriation to pay for the apprehension of stray swine during the cold months. The city handed the captives over to the almshouse. The hogs’ warm weather exemption was extended from April 1 to December 1 by an ordinance of 1831 and confirmed in 1838.5 By 1842, Mayor Samuel Brady declared that the “Hog Law is a nullity; but two hundred dollars are appropriated annually to take up the Swine running at large within direct taxation. As soon as that sum is expended (a fact of which the owners of hogs become very soon apprized) every hog is set at large again.”6
STREET FIGHTS
The management of wandering swine was just one expression of a more general concern about the municipality’s capacity to control and maintain its public thoroughfares. One mayor after another used his annual message to complain about the state of the streets. In 1834, for example, Mayor Jesse Hunt noted “the roughness of many of our principal streets.” Repairs, he said, had been made up to the limit of the appropriation for that purpose, but many of the streets were in such “miserable condition” that mere repairs were pointless; “nothing short of an entire new pavement will effectually remedy the evil.”7 The complaint was commonplace. So was the request to place “flag stones” at street crossings so that pedestrians might walk on them instead of stepping into the murky effluent that oozed down city streets during and after a rain. On the positive side, the money the city earned by selling the harvest of manure collected by its street scrapers more than offset the cost of paying them at 75 cents a day.8
Other sources of pedestrian annoyance were “assemblages of unruly boys” who caused “great inconvenience to peaceable citizens in every part of the city, especially at the corners of streets, where young men assemble, particularly on the Sabbath day, and give offence to females passing them.” The young men not only gave offence but carried concealed weapons, which they sometimes used to stab one another.9
The crossing at Liberty and West Baltimore Streets provided flagstones so that pedestrians could avoid stepping in the odorous ooze that flowed down many of the town’s thoroughfares.
While the municipality contended for control of the streets with footloose swine and juvenile delinquents, it also had to struggle with chartered corporations. The city allowed the Baltimore Water Company to sink its mains beneath the streets on the condition that the company return the paving to its original condition after the excavations. This responsibility was so frequently disregarded that the city commissioners prepared a printed form to notify the Water Company of the locations where it was supposed to undo the damage left in its wake.10 The negligence was all the more annoying because the company was not providing sufficient water to the town’s fire plugs when it was most needed. In 1835, Mayor Hunt acknowledged that the “want of an abundant supply of water has upon some occasions rendered the invaluable services of our Fire Companies less effectual than they would otherwise have been.” The city had considered purchasing the Water Company to remedy the problem, but Hunt worried that Baltimore’s “large stock debt”—arising principally from its railroad investments—made such additional investments infeasible.11
Railroads posed the most serious threat to the city’s control of the streets. City officials had gone out of their way to ensure that the B&O would locate its terminals within the limits of Baltimore. A necessary consequence was that the railroad would have to run its tracks down city streets. In 1840, when the Philadelphia and Trenton Railroad had attempted to extend its right-of-way along Front Street in Philadelphia, the Irish immigrants of Kensington had rioted and attacked the railroad workers.12 Baltimoreans were in no position to do the same. Their city officials had committed half a million dollars of municipal revenue—the people’s taxes—to the B&O and would later pledge millions more. Thousands of the city’s residents had invested in the company. Baltimoreans were nevertheless sharply divided about sharing their streets with railroads. The city government regularly sided with the railroads in the face of citizen protests. Officials claimed that they were protecting not only the city’s investment but its future prosperity.
The B&O’s starting point in Baltimore was the “first stone” on West Pratt Street, where Charles Carroll had planted a spade in the ground on July 4, 1828. Nearby were the roundhouses and shops of the railroad’s Mount Clare depot, the site of today’s B&O Railroad Museum. From this yard, the railroad’s “main stem” would extend northeast, then east along Pratt Street, across town to Fell’s Point, where it turned south to reach the nine-acre parcel of waterfront land created out of harbor sludge. The B&O president, Philip Thomas, noted that the company’s tracks would be “running parallel with the entire water front of the city, communicating with all the wharves, and intersecting all the principal streets which extend northwardly and southwardly.” For much of this distance, the Pratt Street line would parallel another track on Camden Street, one block to the south, so that the railroad would be able to run trains in both directions simultaneously.13
The city imposed conditions on the railroads’ use of the streets. An 1831 ordinance prohibited the use of steam locomotives in the city. Only “animal power” could propel the trains. If at any time the council determined that trains constituted an obstruction on a street, it could require the company to take up its rails and return the street to its original condition.14 B&O president Philip Thomas assured city officials that “there will be less interruption and danger from the passing of railway cars along the Streets than from the passing of Drays now commonly in use.”15
CORPORATIONS IN THE STREETS
The city ordinance that authorized the B&O to build its railway down the middle of Pratt Street also allowed branch lines to be laid down by local businesses whose owners wanted to make connections with the main stem.16 The branches were arteries of city prosperity, and Baltimoreans in outlying neighborhoods wanted access to the commercial concentration arising from the B&O’s waterfront operations. Residents of Northwest Baltimore unsuccessfully petitioned the city for permission to build their own tracks from the intersection of Presstman Street and Pennsylvania Avenue to the railroad’s main stem.17
Baltimoreans in immediate contact with the railroad did not always appreciate its advantages. As the B&O extended its line along the waterfront, the Patriot carried a letter “To The Citizens Of Baltimore” from “a number of . . . fellow citizens interested in the prosperity of Pratt Street.” The fellow citizens declared that the railroad was “fraught with immense mischief to a great portion of the city, particularly to persons owning property on Pratt Street.” The practice of backing up carts and wagons to load or unload goods at Pratt Street businesses had to stop because the wagons would block the tracks. The railroad cars would pass “so near the stores and dwellings that they will keep the whole neighborhood continually under alarm, danger and excitement.” The wells from which the neighborhood pumps drew water lay under the tracks; there was no way to open and clean them out. The “main pipes” of the Water Company also ran under the center of the street; any effort to repair them would halt all train traffic. The rails also constituted a “frightful barrier” between the two sides of the street, and parents would “labor under constant apprehensions for their children, they will hesitate to send them on errands, or to school, across the street.” The citizens reminded Patriot readers “that the original motive for the enterprize was, not to build up a corporation for the exclusive benefit of particular interests, but to raise the City from a state of deep depression to which its business had sunk.”18
While the B&O extended its tracks across Baltimore from west to east, the Baltimore and Susquehanna prepared to enter the city from the north. On its way south to the harbor, the railroad was required by the council to build a branch westward to a parcel of land between Madison and Biddle Streets, once occupied by the city-county almshouse and still owned by the city. Like other property owners, the city sought to exploit rail access to enhance the value of its real estate. The Baltimore and Susquehanna had less bargaining power with the city than did the B&O. It still lacked legal access to its intended destination in Pennsylvania. It was also heavily dependent on the city’s stock subscription and the security that Baltimore had pledged to guarantee the company’s interest payments to the state. For once, the city seems to have taken advantage of a railroad. It required the company to use one acre of the almshouse site for construction of a depot, a possible benefit for northwest Baltimoreans cut off from the B&O’s main stem. The rest of the property would be parceled out into lots. A special board of assessors decided how much the value of the land would increase because of the planned rail depot. The unoccupied land would pass to the school commissioners, who were to sell it; the proceeds would help to support Baltimore’s underfunded attempt at public education.19 After this diversion in the cause of learning, the railroad traveled east and crossed the Jones Falls on a “Costly Viaduct,” then turned south to the waterfront—all on or across city streets—to the same Fell’s Point plot originally donated to the B&O. The B&O, in the meantime, had decided to move its depot a short distance to the east and requested permission to extend its tracks for several blocks along four streets in this already congested area.20
A third railroad sought to enter the city from the east. The Baltimore and Port Deposit (soon to become part of the Philadelphia, Wilmington, and Baltimore Railroad) proposed to operate on an unusual and possibly unworkable business plan. It presented itself as the “perfect Winter line” for passengers traveling south from Boston, New York, and Philadelphia to Washington during the season when the steamboats were “shut up by the Ice” and the “Stage road” from Philadelphia to Baltimore became impassable. The profitability of its seasonal business depended on minimizing its own capital investments by renting track and depot space in Baltimore from the B&O. The two companies concluded an agreement by which the B&O would accommodate the Port Deposit line for $2,500 annually.21
The agreement became controversial when the city council instructed its eight representatives on the B&O board of directors to vote against it. (Since the city’s investment in the company had increased, its representation on the B&O board had grown as well.) Six of the eight city directors rebelled. Their 18-page manifesto suggested that the city council was opposed to the shared-depot agreement because it would deprive local merchants of access to potential customers who would otherwise have disembarked in Baltimore to shuttle between separate Port Deposit and B&O stations. More precisely, the opponents of a single depot held that if “Southern and Western Traders” had to travel through the city from one station to the other, they might “trade more extensively with our Citizens.”22
Like John Diffenderffer, the councilmen on the B&O board of directors had become advocates for the railroad they were directing, which would gain $2,500 in annual rent under the agreement, at little or no cost to itself. They argued, in opposition to their colleagues on the council, that any additional cost or inconvenience imposed on travelers through Baltimore would actually hurt the city’s trade. But the most striking feature of their argument was their dismissive assessment of their own city. Baltimore could not afford to inconvenience traders or travelers—it had nothing to offer but the speediest possible passage through town. In the directors’ view, there was “nothing in our past history, or in our present population, trade, or accumulation of Capital, to authorize the conclusion that Baltimore is unrivaled—on the contrary, is not the comparative tardiness of our progress in trade and in wealth, a constant theme of reproach in the newspapers, founded on the allegation, that the public spirit of Philadelphia, and of New York, their Canals, Railways, Steamboats, and Packets, facilitate the freest system of internal and external communication, are the sole causes of their relative superiority in trade and riches.”23 Baltimoreans repeatedly chastised one another for a deficiency of “public spirit.”
The controversy about the Port Deposit Railroad became moot when it merged with the Philadelphia, Wilmington, and Baltimore line—a company with its own depot at the President Street Station in Fell’s Point and its own stretch of track extending east along Fleet Street and across the city line to the industrial precincts of Canton.24
RAILROAD RUCKUS AND RESOLUTION
As the length of the railroad tracks grew, so did complaints about them. A correspondent of the Baltimore Gazette, “Civis,” expressed concerns about the railroad’s interference with street drainage. Civis was not alone. In 1835, the city council’s Joint Committee on Rail Roads had considered complaints about flooding on Pratt Street. The problem arose at intersections where the B&O tracks crossed gutters. The company had devised small iron bridges to carry its rails across these channels, but in heavy rains trash would collect around and under the bridges, causing water “to overflow the whole street to the great inconvenience of the public.” The garbage that collected under the rails was “seldom or never cleaned out by a flow of water, consequently the stench arising from it in hot weather is a great grievance to the neighbourhood.” Winter storms created problems of their own. The snow pushed off the tracks on Pratt Street created a solid barrier on the sidewalk that made “many of the houses on the street inaccessible to wheel carriages for several days.” The Committee on Rail Roads concluded that the B&O tracks constituted an obstruction on Pratt Street, and under the terms of the ordinance authorizing construction of the railroad, the rails would have to go. Tearing up the tracks on Pratt Street, of course, would deprive many rail sidings of access to the main stem. Both branches of the city council dissented from the committee’s report.25
The committee report also drew opposition outside the council. More than 200 persons and business firms endorsed a petition declaring that the B&O tracks did not constitute an obstruction on Pratt Street and, noting the railroad’s contribution to local prosperity, asked the mayor and council for an ordinance making the “railways . . . permanent and not liable to be removed or their location changed except for the purpose of repairing or improving, and adding to their usefulness.”26 Uncertainty about the staying power of the railroad’s main stem could undermine the value of its stock, to which the city and its residents were major subscribers.
The council referred the petitions not to the Committee on Rail Roads, which had already betrayed its odd animosity to railroads, but to an ad hoc select committee. The majority on the select committee deferred ruling on whether the railroad constituted an obstruction on Pratt Street in order to raise questions about the city’s legal authority to order the removal of railroad tracks. The “General System” for approving branch lines required that the owners of more than half the street frontage along the proposed track endorse its construction. The property owners who sponsored the siding had to bear a portion of its cost. According to the select committee, these payments gave the property owners a “vested interest which no present action of the Council can impair.” If the council ordered the removal of the main stem on Pratt Street, it would violate “the well known principle which make[s] . . . Laws impairing the obligations of Contract Unconstitutional.” The committee reasoned that since the value of the branch lines depended on their connections with the main stem, the city’s right “to order the removal of the main stem Ceased as fully . . . as though the ordinance reserving said right had been expressly repealed.”27
An indignant dissent to the select committee’s report was submitted by a minority of one. James Peregoy was a councilman from the Twelfth Ward, a sparsely populated district extending to the western frontiers of the city, the same region whose residents had petitioned the council for a rail connection to the B&O tracks on the waterfront. Peregoy denounced the surrender of the streets to the railroad as a “monstrous impropriety.” Granting legal permanence to the tracks would require the city to surrender one of the powers granted in its charter—its authority over the city’s streets. Peregoy insisted that “the legislative authority of the Mayor and City Council over the streets, must forever remain unimpaired.” He went on to question the B&O’s contribution to municipal prosperity. The railroad, he said, operated “most injuriously to the town. The immense amount of produce formerly brought hither in wagons, was diffused throughout the City, giving ample employment to draymen, porters, and others, who, though toiling in a humble sphere constituted the foundation of a great and opulent community.” These “labourious poor” made a contribution to the city’s prosperity just as worthy as the railroad’s. In fact, Peregoy maintained, the B&O was engaged in a “ruinous competition with the labouring classes for the internal transformation of the City.” If the railroad prevailed, Baltimore would become a “mere point of transit, where nothing will remain for the consumption of a rapidly decreasing population.”28
A further appeal came to the council from carters, hackney drivers, and draymen required to pay license fees for the right to use city streets. They complained of being “greatly hindered in their enjoyment of this right by the introduction of the Baltimore and Ohio Rail Road . . . and especially by its extension along several of the most frequented thoroughfares, which are completely blocked up by long trains of cars standing or moving on them.” The relief requested was removal of the railroad tracks from city streets. The Joint Committee on Rail Roads found these complaints to be “well founded,” and it expressed “peculiar” gratification that by granting their request, “we are presented with an opportunity of relieving one of our main avenues of a Rail Track, which we were assured by the projectors should occasion not the slightest interruption to the general travel in the street.” While acknowledging the property rights of the railroad, the committee added that it also had a duty “to take the same care that those who depend for their support on their daily labours should be protected in their employments.”29 Their jobs were their property.
The conclusion of the Committee on Rail Roads was startling. It proposed “terminating the Baltimore and Ohio Rail Road at a distance from tide water on the West and the Susquehanna Rail Road at a distance from tide water to the East. Then will the labouring classes find employment in carrying the trade thro’ your streets to the different parts of town.” When the growth of trade required urban expansion, “then will the labour of your mechanics be called in” to enlarge the city’s “accommodations in the East and in the West.” Competition between the two sides of town would “regulate the price of unimproved property, and the whole community will thrive.”30
In the face of contradictory petitions and reports, the city council came down solidly on the side of the railroads. It resolved “that the General Welfare of the Citizens and the especial advantage of the property of the City . . . require that the said rail ways should no longer be considered temporary and liable to be removed.”31 The resolution did not silence citizens’ complaints about tracks in the streets. In 1837, a petition reached the council expressing “surprise and uneasiness” at the attempt “on the part of some of your honorable body, to divest it of legislative authority over certain streets of this city, as regards the rail ways of the Baltimore and Ohio Rail Road Company.” The petitioners wanted representatives “whose fortunes and feelings are identified with theirs,” not “agents of a moneyed corporation, which may hereafter belong to strangers, and whose immediate object is its own pecuniary advantage.”32
The select committee refashioned its argument to answer this new petition. Those who demanded that the council remove the B&O tracks from city streets mistakenly conveyed “the impression that the Mayor and City Council have the absolute control over the streets of Baltimore.” But the paramount “power to shut up or close any of those High way[s], whether they be called roads or streets, is a Sovereign power, vested where all Sovereign powers are vested”—in the state legislature.33 As a mere corporation, a creature of the state, Baltimore could not claim “sovereign” power.
The sovereignty of states (and railroads) over municipalities has since been enshrined in American law. In 1868, Chief Justice John Foster Dillon of the Iowa Supreme Court resolved a dispute between the town of Clinton and the Cedar Rapids and Missouri River Railroad. Iowa’s state legislature had authorized the railroad to extend its tracks through Clinton to complete a rail connection between Council Bluffs and Cedar Rapids. The Clinton City Council immediately objected to the railroad’s intrusion and obtained an injunction against the company in the district court. But Justice Dillon and the state’s supreme court overturned the injunction, reasoning that the enactment by the legislature superseded the provision of Clinton’s charter that gave the city control over its streets. It was the legislature, after all, that granted Clinton its charter and its control of the streets. It had done so in the service of a public interest—not just of Clinton’s public, but the public in general. Acting on behalf of that same interest, the legislature had provided the railroad with all the power and permission it needed to extend its tracks down Clinton’s streets.34
The “Dillon Rule” entered American jurisprudence as a principle (occasionally contested) establishing the near-absolute supremacy of state over municipal governments. In a sense, the Baltimore City Council’s deference to the General Assembly in the case of city streets and their occupation by railroads simply recognized that principle. Of course, the Dillon Rule lay 30 years in the future, and instead of being compelled to observe the principle by a court or state legislature, the council simply imposed its anticipation of the rule on itself.