Monopolies and the People

by D. C. Cloud

Formerly, the people, through the ballot box, governed the country; they were sovereign. In this republic no rival power existed, and it was our boast that our people were free and independent. Our fundamental law is still the same. In theory, our people are still sovereign; in fact, most of their sovereignty has been legislated from them. Statutes are enacted compelling the people to divide their hard-earned substance with private corporations without any consideration; and the highest courts of the country have affirmed the constitutionality of these laws. The freedom and equality which was our national boast have disappeared, and instead thereof the people are ruled by cruel and oppressive task-masters, who are fostered and supported by legislatures and courts in their united purpose of controlling the country. These oppressions have been endured by the people, with but feeble efforts to regain their rights, until the alternative is presented of organized resistance or absolute ruin. Throughout the length and breadth of our common country, the laboring and producing classes are struggling for the necessaries of life, whilst those who own and manage the corporations of the country have firmly grasped and now control the financial and commercial interests of the country, and are amassing princely fortunes and rolling in wealth. To stay the course of their oppressors, and get back some of their rights, the laboring classes are organizing, and demanding of their employers such compensation as will enable them to supply the common necessaries of life. They demand that their wages shall be increased in proportion to the increased cost of living, occasioned by special grants and privileges bestowed upon corporations and monopolies; that instead of being treated as vassals of the despots who now rule the country and control the government, that their rights as freemen shall be recognized.

The operatives and mechanics are banding together for the same purpose. They are all seeking, in the same degree, to counteract the evil effects of the grants and privileges conferred upon monopolies. The farmers, who, as a class, have always been deemed the most independent in the country, are so impoverished by these monopolies that they have been compelled to band together for mutual protection. No choice was left them. The bestowal of such great powers and special privileges upon corporations presented the alternative of utter financial ruin, or united and combined efforts on the part of the people, to check the great and growing power which now is fattening upon their toil and industry. While under ordinary circumstances, all class organizations are attended with some bad results, yet when any interest becomes so powerful as to oppress all others, when it has such strength that it can defy all ordinary attempts at reform, then any and all organizations having for their object the correction of abuses, the restoration of the rights of the people, the destruction of an oligarchy that has already obtained such power in the land as to subvert the very nature of free institutions, is not only right, but its objects are patriotic. Though the organization may have for its object the protection of a single interest, the correction of a single abuse, the restoration of a single right, it benefits all classes who suffer like oppressions. It is fortunate that while the grants of great bounties and special privileges to corporations have resulted in great wrongs and oppressions to the people generally, they have also been the means of effecting organizations that will eventually restore to the people those rights which in our government are considered as inalienable. When the agriculturalists of the whole country become united in their demands for redress, neither the state legislatures, the congress of the nation, or the courts, will dare to disregard their demands. Numbering more than all who are engaged in other pursuits, being a majority of the whole people, when their united voice is heard it will not be an "uncertain sound." It will command obedience. Grants of bounties and privileges to corporations have depressed and sometimes destroyed other great interests to the injury of the people, and divided the people into classes, one class representing the capital and corporate interests of the country, and the other, comprised of the laboring and producing classes; but this special legislation has also resulted in bringing to the front the great agricultural population, who possess the power, by united action, of restoring to the people their lost rights, while corporations shall enjoy equal rights with other interests, shorn of their power granted to them by corrupt and interested legislation and partial decisions of courts. This legislation and these decisions we have reviewed in preceding pages. It now remains for us to express our views upon the policy rendered necessary by the grave situation of the country.

Second.—The Constitutional Right and Duty Resting upon the People to Repeal all Class Legislation.—While we do not claim to possess more knowledge than other men, and while our views as to the means to be employed for remedying the evils under which we now suffer may be erroneous, we shall venture to present them with the hope of aiding the efforts now being made to arrest the rapid concentration of the whole political, commercial, and financial interests of the country, in corporations and other monopolies. We must not lose sight of the fact that under our constitution the people are sovereign; that the will of the majority expressed as provided by the fundamental law is supreme; that all the rights, privileges, and powers possessed by man in his normal state, are retained by the people, save such as they have transferred to the different departments of the government, state and national; that these rights, not so transferred, can be asserted and enforced as occasion requires; that when those entrusted with the administration of the government transcend or abuse the powers delegated to them, and by so doing deprive the people of the rights they possess under the constitution, the people are fully justified in resorting to whatever means may be necessary for the restoration and protection of those rights. In pursuing these necessary measures of relief, no injury is done to a minority, or to any individual, for the foundation on which our republic rests is equal and exact justice to all men, and the equality of all men before the law. All acts of legislatures, and all decisions of courts, which deny to the citizen, or to any class of citizens, or to a particular trade, occupation, business, or profession, the same privileges and protection granted to others, or which grant to any class of citizens or to corporations privileges which infringe upon the rights of others, are abuses of power and assumptions of authority not delegated by the people to the government, or to any department of it. It follows that any attempts of congress or legislatures to confer upon any corporations grants of power which enable them to override the rights reserved by the people, transcend the authority with which such legislatures are clothed, and are not binding upon the public. As agents, they have exceeded their power, and their acts do not bind their principals. If an agent acts under special authority, his acts, within the scope of his authority, are binding upon his principal; but if he violates his instructions, and attempts to make a contract not warranted by his letter of attorney, his acts have no binding force upon his principal. The same is true of those men who are elected and appointed to fill the different offices in the government. The constitution is their letter of attorney. They are bound by it. When they act outside of their instructions, as contained in that instrument, their acts are void. This will be conceded. Even members of railroad companies will not controvert this proposition. The real point is, Who is to decide when an act is in conflict with the constitution? The answer is, the courts, for such is the law. When complaint is made of usurpations of corporations, we are told that they are only exercising the privileges conferred upon them by law; that the courts have decided in their favor, and that from these decisions there is no appeal; nor can any redress be obtained, because the question has been settled in their favor by the highest power in the land—the supreme court of the United States.

To this general rule of determining controverted questions there must be some exceptions, unless we concede that supreme power is vested in the courts, and that the constitution clothes them with all the attributes of despotic governments. We have shown that judges of courts are governed and controlled by the same influences which influence other men; that they are not infallible; that their decisions are influenced by surrounding circumstances; that education, association, and habits of life, have an important bearing upon their minds, and not unfrequently warp their judgments, and it is not treason to say that decisions of state and federal courts prove that they are as liable to change their views as are the majority of the people. The supreme power must have a permanent lodgment somewhere. If it remains with the people, it does not vest in the supreme court, and that court is but the agent of the people, and acts for them when it decides upon the validity of a statute, or defines the rights and duties of the people. Under our form of government, certain rights and powers are conferred upon the general government; these are all such as are necessary for our existence as a nation; they are limited, and should be strictly construed, because all powers and rights not expressly conferred upon the general government, "are reserved to the states or to the people." The states being sovereign, their power is superior to that of the general government, save in those matters surrendered to it. Hence, the state governments have a general, expressed, and implied jurisdiction in all matters not surrendered, and state constitutions are to be liberally construed.

But over and above the powers vested in the general and state governments, that God-given right of self-protection remains with the people. This right they have never surrendered to legislatures or to courts. If by the action of the legislature, or of congress, or of the courts, the rights reserved to the people can be abridged, denied, or destroyed, then we do not live under a republican, but are the subjects of a despotic, government. If congress were to enact a law providing that one-tenth of the annual income of each inhabitant in the land should be paid to railroad corporations, and the supreme court of the United States should decide the act to be constitutional, if it be true that there is no appeal from these decisions, and that as good citizens of the government we are obliged to accept them as valid and binding, there could be no redress. This doctrine of submission we do not indorse. Such a decision would cause the people to resort to the powers and rights retained by them, and to make use of whatever means they possessed to reverse or destroy the force and effect of such a decision. They would be justified in resorting to nature's first law to rid themselves of so unjust a decision. While no such law has been passed, and no such decision has been made, laws have been enacted, and their validity affirmed by the courts, which are paving the way for the destruction of the civil and political rights of the people, and the centralization of all power in the general government. By a series of legislative enactments and decisions of courts, special privileges have been conferred upon railroad companies antagonistic to, and destructive of, the rights of the people. How are these rights to be restored? These questions will now claim our attention.

All laws granting to railroad or other corporations organized for pecuniary profit, special and exclusive privileges, which encroach upon the rights of the public, should be repealed. The most prominent argument against repeal exists in the doctrine that railroads are public highways, and that a charter granted to a railroad corporation by the legislature is in the nature of a contract, and is therefore irrepealable. By the constant and persistent assertion of these propositions, and by frequent adjudication of the questions, candor compels us to admit that the current of judicial decisions supports this doctrine. Yet as the ancient dogma of tyrants, "The king can do no wrong," does not obtain in this country, we beg leave to call in question the soundness of this doctrine. If railroads are public highways, there can be no question as to the right of legislatures to exercise the same control over them that they assert in regard to common public roads. If they are public, private parties cannot have the exclusive control of them; nor can the legislature grant away the rights of the public by exclusive charters to private parties, for the reason that the legislature (the department of government that enacts all statutes) cannot, by the enactment of a statute, take from the whole people one of the rights belonging to them and confer it upon a private corporation. The legislature has no power to enact a statute declaring a foundry, or mill, built by an individual or a company with private capital (the absolute title vesting in such party) to be a public foundry or mill. If such a statute were enacted, it would not change the title to the property, nor would it prevent the owner from using and enjoying it as his own, exclusively. Whether it be called public or private would not change the nature of the ownership or convert the interest into public property. No matter by what name it might be called, it is still private property. The same is true of railroads. They are built and owned by private corporations; are under the control of their owners, who retain for their own use the earnings of their roads. If these roads are public highways, then the legislature, acting for the public good, occupies the anomalous position of granting charters to private parties to construct public highways, and to own them after their construction. The supreme court of the United States, and the courts of some of the states, have decided that they are public highways, and, according to the usual custom, these decisions are to be received as final.

The courts having declared them public corporations does not change the facts in the case. The facts still remain. The roads are owned and controlled by private corporations. The title cannot be taken from them arbitrarily. The companies receive the earnings of the roads, and every fact contradicts the decision of the courts. If the courts were to decide that a crow was white and not black, we would acknowledge the binding force of the decision, and admit, that by virtue of the decision, the crow is white. But when we look at the fact, we would still insist that, notwithstanding the decision of the courts, the crow is as black as it was before the decision was made. If the courts were to decide that common highways were railroads, as a matter of law we would accept the decision as final; but as a matter of fact we would know that they were common highways. Railroads, owned and controlled by private parties, are not public highways. If railroads are public highways, then the other position, that the charters granted to railroad companies are irrepealable, is not tenable—for the reason that the legislature possesses full power to alter, amend, or repeal all laws enacted for the benefit of the public. Public highways are public property as much as public buildings, court-houses, school houses, asylums, and other institutions created for the use and benefit of the public. The legislature does not possess the power to vest in a company the exclusive right to build and own any of these public buildings. If a charter were granted for any such purpose, it could not be claimed that it was in the nature of a contract between the state and the company, absolutely binding upon all future legislation; that the company had acquired, by virtue of its charter, rights that neither courts nor future legislatures could disturb. Or suppose that a private company should obtain a charter for constructing and owning all the highways within a certain township or county, would it be contended that future legislatures could not alter or repeal the charter? If railroads are public highways, the companies constructing them must be subject to the same laws and decisions that apply to all other matters of like public character. Their charters are at all times under the control of the legislative authority, and subject to be altered, amended, or repealed. Being the component part of the government, of a public nature, the doctrine that private parties can acquire rights in the nature of a contract that cannot be disturbed without their consent is not tenable. Whether railroads are to be considered as private property, or as public highways, they are subject to the control of the legislature—because, under the constitution, the power to create corporations by charter, with absolute powers, does not exist. If the converse of this is true, then legislatures could, by conferring special privileges upon individuals and corporations, deprive the public of all attributes of sovereignty, and place the entire government in the hands of individuals and companies. The constitution has conferred no such power upon any department of the government. If such power is conferred, the constitution, instead of being the paramount law as intended—establishing the rights of the people, controlling legislative enactments, defining the powers of the different departments of the government, and guaranteeing protection from unjust and oppressive laws, and decisions of courts—is instead but an instrument to be used for the enslavement of the people. The power to grant to private parties a monopoly of any of the rights belonging to the whole people, or to confer upon these private parties such exclusive privileges as will infringe upon or take from the public, the rights that naturally attach, or belong to, the whole people, was never conferred upon the legislature of the state or nation. If legislatures have entered into contracts with corporations, under which the rights belonging to the people are transferred to such corporations, they have exceeded the power vested in them, and the charters granted, so far as they infringe upon the rights of the public, are null and void. The plea, that a repeal or amendment of such charters would destroy vested rights, has no force, because the power to make such grants or contracts is wanting. Nor does the plea, that innocent third parties would suffer, add any strength to the position. The corporations are the parties with whom these innocent parties contract, and to whom they must look for the fulfillment of their contracts. All acts of legislatures, granting to railroad or other corporations, rights belonging to the whole people, are subject to the control of future legislatures, and are repealable. The only purpose for which a railroad charter should be granted is to subserve the public interest. For this purpose the legislatures possess the power to confer upon corporations such rights and privileges as are necessary to enable them to have continued being, and to transact business, but reserving at all times the right to control them and reform abuses. Good faith on the part of railroad companies requires of them fair and honest dealing with the people. Adopting the idea that the public was to receive great benefit from the construction of railroads, large grants of lands, subsidy bonds, local municipal subscriptions, donations of money, and direct taxation, in different localities, have been afforded the different companies for the purpose of aiding in the construction of their roads. The benefit the public was to receive, and which the companies agreed to afford, was the only consideration expected by the people. This consideration the public has never received. We have shown the course pursued by railroad companies, in constructing their roads, watering their stock, and selling their bonds, and the oppressions practiced by them to force from the people the means for declaring dividends on fictitious stock, and to pay the interest on the immense amounts of bonds issued and sold to the different corporations. Assuming that their charters are contracts between themselves and the states, they defy all efforts made by the people to arrest their extortions. Our government being instituted for the protection and benefit of the whole people, they possess the power, and it is their right, to amend or repeal all laws that deny or abridge their own rights. Railroad companies should be compelled to reduce their stock to the actual cost of constructing their roads, and the rates of charges for the transportation of freights and passengers should be fixed by statute at such rates as would afford a fair dividend upon the capital actually invested. The public should not be compelled to pay interest or dividends on stock or bonds issued in excess of the actual cost of the roads. The property of railroad companies should be taxed by the same rules, and at the same rate, as the property of individuals. A general supervision of all railroad corporations throughout the country should be exercised by the respective state authorities. It may be said: "All this is proper, but how will you accomplish it? All efforts heretofore made in that direction have been defeated in the different legislative bodies, or by the decisions of the courts." We are compelled to admit that if future attempts at reform are to be measured by past efforts, the prospect is not flattering. When relief bills have been introduced into legislative bodies they have generally failed. Railroad men have been able to defeat almost every attempt at reform. The idea seems to have obtained in all legislative bodies that the men who built railroads were self-denying; that they were philanthropists; that for the purpose of developing the country, of affording speedy and cheap transportation to the eastern markets of the products of the west, they were sacrificing their personal comfort and wealth; and that the least the people could do was to extend to them a helping hand—to grant them local aid, to exempt them from taxes, to assist them in procuring the right of way, and, instead of enacting laws to protect the people from the abuses of railroad corporations, statutes should be enacted to prevent any interference with the corporations, and allowing them extraordinary privileges. Men who were elected to the legislature under pledges to favor the passage of statutes for the protection of the people against the encroachments of corporations, were found enlisted in their favor, and these monopolies, instead of being restricted in their powers, have continually received additional favors and privileges.

When the people have appealed to the courts for redress, they have met with defeat. Lengthy decisions have been written and published, setting forth the great benefit of railroads, instructing the people that railroad charters are contracts, and that unless courts decide in favor of railroad companies "innocent third parties," who have purchased railroad bonds, will sustain loss. Thus, through the legislative and judicial departments of the government, the people are reduced to a state of vassalage, with railroad corporations as their masters and rulers.

Notwithstanding this gloomy outlook, the people still retain sufficient power to correct the evil and to recover their constitutional rights. The country is now divided into two parties. One party is composed of the people, strong in nothing but numbers, and the determination to battle for their rights. The other side is composed of corporations, stock-jobbers, brokers, and capitalists, whose strength consists in the organization and consolidation of their interests, their control of the finances of the country, and of the different departments of the government. The lines dividing these parties are clearly and distinctly marked. Their interests are conflicting. The people now demand such legal enactments as will restrict extortionate charges by railroad companies, and compel them to pay their just share of taxes for the support of the government. Legislators being elected for short terms, being frequently called upon to render an account of their official acts to their constituents, if the people are united and persistent, it will not be difficult to procure the passage of such statutes as will compel railroad companies to deal fairly and honestly with the public. To effect reform, and obtain redress, the aid of another department of the government must be obtained, to-wit: the courts of the country.

Third.—The People have a Precedent for a Pledged Judiciary. In treating of the courts and their decisions, we are venturing upon grounds that will subject us to criticism. The decision of a court of last resort upon controverted questions is generally received as final. In questions of constitutional law, or when the rights of the public or of private parties are involved, the final decisions of our highest tribunal are accepted by general consent, as the supreme law of the land.