Autobiography of Charles Clinton Nourse / Prepared for use of Members of the Family

by Charles Clinton Nourse

CHAPTER X

Regulation of Freight and Passenger Tariffs

Leaving the subject of temperance and prohibition for the present, the next important question of a public nature in which I became interested professionally was the question of the regulation of freight and passenger tariffs by the general assembly of the state. The general assembly of 1888 enacted a law providing for the election of three Railroad Commissioners, and gave them authority to prepare schedules of rates that might be charged by the railroads of the state for the transportation of freight and passengers.

Charles Clinton Nourse
From Photograph by Pearson.
Des Moines

Under this statute the people elected as Commissioners Frank T. Campbell, Peter A. Dey, and Spencer Smith. In pursuance of the authority of the statute these Commissioners proceeded to formulate schedules of rates to be charged by the several railroads of the state. The law required the Commissioners to publish for three successive weeks in certain newspapers the date at which these rates should take effect. Before the third publication was made the attorneys of the Northwestern Railroad Company telegraphed to the Railroad Commissioners requesting a change of the date of the taking effect of their proposed schedule of rates, and received from the secretary of the board, under the instructions of Mr. Dey, an answer that the time of the taking effect would be changed accordingly. A new advertisement was prepared and published, but before the three insertions were completed three of the principal railroad companies operating in the state; to-wit, the Northwestern, Chicago, Burlington & Quincy, and the Milwaukee & St. Paul filed their petitions with the circuit court of the United States for an injunction against the further publication of the notice, on the ground that the rates fixed by the Railroad Commissioners were not compensatory. The hearing of this application was had before Justice Brewer at his residence in Leavenworth, Kansas. I was employed by the Railroad Commissioners to appear in their behalf, and Mr. James T. Lain, of Davenport, was employed by certain shippers of that place to appear with me in the case. We argued the case before Justice Brewer, and he granted the injunction on the 28th of July, 1888. This injunction in large part was based upon the evidence of the complainants' general manager to the effect that the Commissioners had adopted a classification known as the western classification, which, as compared with the classification known as the Illinois classification made a difference against the railroads of fifty per cent. Subsequent to the granting of these injunctions, upon complaint of certain shippers the Railroad Commissioners, after a hearing before them, proceeded to formulate new schedules, and in pursuance of what appeared to be the principal objection at the former hearing they adopted a classification more favorable to the railroad companies known as the Illinois classification. Immediately upon this action of the Railroad Commissioners the railroad companies filed a supplemental bill asking a further injunction to restrain the Railroad Commissioners from putting into effect these new rates with the new classification. Mr. Campbell of the Railroad Commissioners immediately waited on me asking my further appearance in the cause to argue the question of a further injunction as against their new schedules and classification. He expressed a doubt as to whether or not it was worth our efforts to defeat this new application as he was disposed to think that Judge Brewer would grant whatever the railroad companies might ask in this behalf. I told him that he had a duty to perform as a public officer, in my opinion, and if the Commissioners did their duty in making the proper resistance to this new application, the responsibility would rest with Judge Brewer if he failed in his duty. We accordingly made the necessary preparation for a hearing, which was finally had at St. Paul, Minnesota. In the argument of this case the attorneys for the three railroads applying for the injunction made a very formidable array of distinguished counsel embracing the ablest lawyers of Chicago and Milwaukee. A. J. Baker was then Attorney General of the state of Iowa and nominally appeared with me for the Commissioners, but gave me no assistance whatever. We had for an audience in the argument of the case many leading men of Minnesota, members of the State Grange of that state, which association was then in session at St. Paul. I took into the court-room a blackboard that I extemporized for the occasion and taking several copies of the official reports of the railroads in question, I put one copy in the hands of Justice Brewer, holding another copy in my hand and putting the figures upon the blackboard, showing the earnings of these railroads and what they were pleased to call their fixed charges, and demonstrating beyond question that the complaints made of the proposed railroad rates were without foundation. The same person who had made an affidavit in regard to the difference between the Illinois and the western classification had made a new affidavit stating that there was an error in his former computation. I criticised with some severity the reliability of the affidavits in which mistakes occurred according to the convenience and exigencies of this litigation. I had not much confidence in the result, however, but I felt quite complimented when a number of the leading men of the Minnesota Grange, who were present at the argument, made me a complimentary visit at the hotel that evening. The attorney for the railroad company who was expected to make the closing argument in the case complained that he did not feel very well and only spoke about fifteen or twenty minutes in a general way, without going into the facts or figures in the case. My supposed assistant, the Attorney General of the state of Iowa, took no part in the argument, and on my way home that night I learned that he had been in conference with Mr. Stickney of the Chicago Great Western Railroad Company, and had made an arrangement with that gentleman for employment as attorney for that corporation, to take effect at the close of his then official term which was to occur in a few months. On the 2nd day of the ensuing February, 1889, Justice Brewer filed in the circuit court his opinion refusing the injunction on the supplemental bill and entering an order dissolving the injunctions theretofore granted, at the cost of the complainants. The railroad companies made no further fight against the action of the Railroad Commissioners but acquiesced therein, and found the earnings of their several roads "compensatory."

Concurrent with this proceeding on the part of the Northwestern Railroad Company and the Chicago, Burlington & Quincy, and Milwaukee & St. Paul, the Chicago, Rock Island & Pacific Railroad Company and the Burlington, Cedar Rapids & Northern applied to and obtained from Judge Fairall, of Iowa City, district judge of Johnson county, an injunction against the Railroad Commissioners to the same effect as that issued by Justice Brewer. I appeared with Mr. Lain before the district court and argued a motion to dissolve this injunction before Judge Fairall, which was refused, and from his order refusing to dissolve the injunction we at once took an appeal to the supreme court of Iowa. This appeal was heard and submitted to the supreme court by both printed and oral argument, but after the action of Justice Brewer upon the supplemental bill in the federal court, the attorneys for the Chicago, Rock Island & Pacific Railroad Company and the Burlington, Cedar Rapids & Northern dismissed their suit in the district court of Johnson county, and then applied to the supreme court for an order dismissing the appeal in that court. We resisted this application, but the court held that as the original suit was dismissed the injunction itself necessarily was dissolved, and as the appeal was only from an interlocutory order, the court had no occasion to deliver an opinion upon the merits of the controversy. The opinion of the court permitting these parties to dismiss their suit in this manner will be found in 76th Iowa, 278.

Mr. A. B. Cummins, since Governor of the state of Iowa, has lately been posing as the original friend of the people in this fight against railroad injustice. It would be well to state here that I do not know when he became a convert to the importance of regulating the action of railroads in justice to the people, but as the foregoing was the first great contest we had in Iowa on this subject, I give here a speech delivered by that gentleman as late as December 22, 1891, at a banquet of the Railroad Employees' Club, as follows:

It is the railroad, it is the spirit that has moved and stimulated that property which has made it possible to people in the valley of the Mississippi, which has made it possible to create within the limits of the United States a greater wealth than has any other nation on the face of the earth. I speak of the transportation industry as limited to railways, and so limited, it is instructive to reflect that the railways of the earth are now of the value of something near $33,000,000,000, an appalling sum that no human mind can appreciate, save when compared with some other species of property. The railways of the earth, without reckoning either "wind or water," are equal to one-tenth of all the property of the world. The railways represent substantially one-third of all the invested capital of mankind; and if all the currency of the civilized world and its gold and all its silver and its currency in paper; all its precious stones, its diamonds and rubies were heaped together in such places as would contain them, they would still represent less than one-half of the railway property of the world. The comparisons indicate in what a stupendous enterprise you are now engaged. I have no disposition, whatever, to convert a single sentiment suggested by my brother Wallace, I do not recognize a conflict between the farmers of the nation or the state of Iowa and the railways. No fair man ought to recognize any such conflict, but THAT THE STATE OF IOWA OR THAT HER ORGANIZED TRIBUNALS HAVE DONE INJUSTICE TO THE RAILWAYS AND THROUGH THEM TO THE RAILWAY EMPLOYEES, NO FAIR MINDED MAN CAN DISPUTE. These systems grew up; they most naturally fall into the hands best adapted to organize and handle them, and I would be the last man in the world to claim that, as they grew up, as they were systemized and organized, that wrong was not done here or wrong was not done there. I know too well that there were grievous complaints justly made against the management of railways not only in this state, but in many others. But I beg the people of Iowa to remember, and the railway employees to remember that, although railway managers and railway presidents may sometimes be unjust, that affords no excuse whatever for the sovereign power of the state of Iowa in being unjust. The wrongs of capital produce, it is said, the anarchist—so it is with respect to the wrongs perpetrated by the railway companies, the railway organizations. They created a prejudice which, in its impetus, has carried the attack made upon the railway property far beyond what is justified by the sober second thought and judgment of those who instituted it, and far beyond the limits which the fair-minded people of Iowa now justify.