Monopolies and the People

by D. C. Cloud

We look upon the judges of courts as men possessing superior legal sagacity, and upon their decisions as embodying the highest wisdom. The congress of the nation, or the legislatures of states, composed in part, at least, of men of extensive legal knowledge, who have made the science of government a life long study; who have carefully and critically examined the provisions of the constitution; who have full knowledge of the mischief to be remedied, or the rights to be enforced, carefully digest, prepare, and after full discussion in their respective bodies, enact a law which they believe will accomplish the intended purpose, and at the same time contravene no provision of the constitution. An attempt is made to enforce the law, and a question arises as to its constitutionality, or its meaning and effects. The court is appealed to. On this bench are sitting three, five, seven, or more judges. After argument, this court, by a majority of one, decides the law unconstitutional, giving to it an interpretation which defeats the object for which it was enacted. The minority of the court dissent from the opinion of the majority, and set forth at length the reasons for such dissent. The fact that five judges concur in the majority opinion and four dissent makes the decision of one man the supreme law of the land. It annuls acts of congress and state legislatures, and makes the opinions and decisions of four members of the court concurring with a majority of congress of no avail. One man's opinion is the law for the whole people. This we have shown in the action of the supreme court in the legal tender cases. Now it is not considered out of place to criticise the acts of congress or of legislatures, or the motives and influences that govern and control those bodies in the enactment of laws; yet it is looked upon as almost treasonable to refuse to accept the decisions of courts as good law, or to discuss the motives and influences leading to these decisions. In 1869 the supreme court of the United States, by a majority of one judge, decided that treasury notes were not legal tender for pre-existing debts. In 1871 the same court, by a majority of one, decided that they were a legal tender for all debts, public or private, save when there were special exceptions. So in other questions in the United States courts, and in the courts of the states, it has sometimes happened that the law of the land has been changed by the change of one or two judges. In Iowa this is demonstrated in the decisions of the supreme court upon the questions whether the legislature could authorize the levy and collection of a special tax to aid in the construction of railroads. We refer to these matters to show that judges are not infallible, and that sitting as courts, they are apt to differ as to the law and facts of the case. Instances are not wanting when judges have been appointed and elected because of their views upon certain questions, and when with the changes of the personnel of the court, its final decisions have been reversed, thus making the supreme law of the land depend upon the election or appointment of one man to the bench. The argument to be drawn from this is, that no such sanctity surrounds the court or judges as forbids a scrutiny of their decisions or the motives prompting them. But it is said, if you discuss the motives underlying judicial decisions, you will debase the judiciary of the country; that candidates for the bench, like those for legislative or executive offices, will be selected because of their views respecting certain interests and questions that may come before them for judicial determination, and, like legislators they will be appointed or elected because these views harmonize with those of certain classes or interests. The answer to this is, that as a general rule, judges are now appointed or elected because of their political views. In almost every instance the man who is elected or appointed accords in his political views with the majority, and indeed, men have been nominated and elected, or appointed, as judges of courts because of their publicly expressed opinions on some particular subject. The decisions of courts upon constitutional and other questions change frequently. The most important interests and rights of the people under the constitution and laws of the country have been differently decided by the same court of last resort in both national and state tribunals. The constitution has been declared to mean one thing at one time, and a directly opposite meaning has been given to the same clause at another term of the same court, with but a few months intervening. An elasticity has been given this instrument neither contemplated by its framers, nor calculated to increase respect for it, or for the judiciary of the country. While we would not advocate the policy of candidates for judicial offices pledging themselves upon any question that may come before them for a decision, we claim that the people should exact from every candidate a pledge to "support, protect, and defend the constitution," to abstain from the dangerous practice which now obtains of construing the fundamental law of the land in favor of particular interests, and to abstain from judicial legislation. More danger to the liberties of the people is to be apprehended from the courts, than from any other source. The constitution is inelastic, unchangeable, save by amendment in the manner provided. No court should disregard it, nor warp its meaning. If the rules of construction practiced of late are to be continued, its sanctity is destroyed, and its provisions are no more binding than those of a statute. It is the duty of courts to interpret the constitution, but not to supply its (to them) seeming defects, or to override its plain provisions. We all feel a deep interest in the election of legislators, for the reason that all are to be affected by the laws enacted, but we seem not to realize to its full importance the fact that all laws passed by congress or a state legislature are liable to be declared null and void by the courts; that the interpretation and construction of statutes belong exclusively to the courts; that the men elected to judicial positions, under the constitution, are clothed with a power superior to that of the legislative and executive departments of the government; that by a single decision the supreme court of the state, or of the nation, can suspend or annul a statute which has been in force for years, or that an interpretation of the constitution, long acquiesced in, can be reversed and a new meaning given to it. Yet these are facts, and from these decisions there is no appeal. The courts may change their opinions upon constitutional questions at every term, and the nation must receive their decisions as the supreme law.

We have said that the constitution is inelastic. It must remain so for the protection of the rights of the people. If courts can change its meaning as occasion requires, the will of the court and not the constitution, is the supreme law of the land. The decisions of courts, in the recent conflicts between railroad corporations and the people, and upon the legal tender question, demonstrate that the will of the court is already the supreme law of the land. One of the questions in the determination of which the courts have substituted their will for constitutional law, relates to the authority of state governments to aid in the construction of railroads. The constitution of Iowa prohibits the state from participating in or becoming a stockholder in any private corporation or any corporation created for profit. Counties are, necessarily, a part of the government; their creation and organization are a necessity in the administration of the state government. While the state is prohibited from aiding in the construction of railroads, the courts have said that the constitution does not prohibit counties from subscribing stock to railroad corporations and creating onerous debts in payment therefor. In other words, while the constitution forbids any participation on the part of the state, as a state, in the construction of railroads, it is no violation of the fundamental law for the inferior branches of the state government to become stockholders in the same corporations. Though the whole state is forbidden to aid in the construction of railroads, by dividing the state into counties, it is no violation of the fundamental law for these counties to aid in their construction. No one doubts that it was the intention of the framers of the constitution to protect the people against the evils of oppressive burdens always resulting from a participation of the public authorities in the construction of railroads. The question of the authority of counties to subscribe stock to railroads, in Iowa, has often been before the courts. The decisions have been numerous, but not unanimous or uniform. At no time has the supreme court of the state by unanimous decision held that the power existed; but on several occasions the court has united in deciding that the power did not exist, the constitutionality of such right depending entirely upon who were elected judges. Thus the fundamental law, which can only be changed by amendment in the manner provided, has been held to permit or forbid public aid in building railroads, as suited the peculiar views of the men who had been elected judges. What was constitutional one day was unconstitutional the next. The decision of the men who happened to occupy seats upon the supreme bench, has been the supreme law, and not the constitution. On the question of voting local aid to railroads the supreme court decided that the act of the legislature authorizing such aid was unconstitutional. In one year from that time the same supreme court, three judges concurring, decided that the law was constitutional, the reason of this variance being that in the interim two judges had retired from the bench and two new ones been elected in their place. Here, again, the will of the men who happened to be elected changed the meaning of the constitution. The same curious history has been enacted in many other states. When men who are interested in railroads, or who desire that the public should aid in their construction, occupy seats on the bench of the supreme court, the constitution is construed to allow such aid, and where the judges are opposed to the allowance of such aid, they decide the constitution does not authorize, but forbids it. In each case the fundamental law is interpreted to suit the peculiar views of the judges who occupy the bench, until it has ceased to have any binding effect. With this state of facts, known to all men, it is not strange that the people now demand pledges from men who aspire to judicial station. When state constitutions are made to mean anything or nothing, as suits the men whose duty it is to interpret them, and when laws are pronounced constitutional or unconstitutional, as caprice or the interests of corporations may prompt, "nature's first law, self-preservation," demands that those who aspire to become judges of courts should be controlled by the constitution rather than by their personal views as to what it should be; and that they should be fully committed and pledged to abstain from judicial constructions of the constitution which abridge the rights of the people and increase the power of corporations. While the decisions of the state courts have tended to abridge the rights of the people and increase the already too great power of corporations; while they have, in fact, decided that, under the constitution, a citizen can be compelled to bestow a part of what he possesses upon railroad corporations without an equivalent, the greatest danger to the liberties of the people and the perpetuity of republican government is to be apprehended from the supreme court of the United States. It possesses, under the constitution, unlimited jurisdiction upon all matters arising under the constitution and laws of the United States, but not the same general jurisdiction that appertains to state tribunals. Yet, as under the constitution it is a court of last resort, and its members hold their offices for life, it is independent of the people. Not only so, but it cannot be called to an account by any department of the government, state or national. It possesses powers superior to all other departments of the government; it rises above all law, and becomes a law in itself. Its decisions being final, the whole people must accept them as the supreme law of the land. No matter how oppressive, or unjust, or absurd, the whole government and people must accept these decisions as the highest law and authority in the land. These facts, taken into consideration with some of its recent decisions in favor of railroad corporations and other monopolies, raise the question whether we are now governed by constitutional law or by the edicts of the supreme court, promulgated in the guise of judicial decisions.

Let us look at a few of these decisions, now in full force as the law of the land. In the construction of railroads, counties, cities, and towns have assisted by subscribing stock and levying taxes to pay such subscription. State courts have decided that under the constitution and laws of the states such subscription was unconstitutional, illegal, and void. The power to afford such aid to railroad companies was derived from state statutes, passed by virtue of the power presumed to be conferred by the constitution. Following precedents which had been established and recognized from the organization of our government, the decisions of the state courts should have been final, and binding upon the courts of the nation. Yet the supreme court of the United States, by a bare majority of one, in violation of all precedent, assumed power not conferred upon it by the constitution of the United States, annulled state constitutions, disregarded state laws, and reversed and refused to be bound by the decisions of state courts. The will of one man, who happened to occupy a seat upon the supreme bench, is made the supreme law of the land, not by virtue of any provision of the constitution, but by trampling upon the rights of states and the people. When it is remembered that their decisions were made in favor of corporations, and that their effect was to compel the people to contribute a part of their substance to help build up and strengthen monopolies, which have proved to be oppressive task-masters, we are justified in saying that the fundamental law of the land has been misinterpreted and the rights of the people sacrificed. We assert that no provision of the constitution can be shown that even indirectly authorizes taxation to aid in the construction of railroads owned by private corporations. The idea is at war with every principle of right and justice. When the supreme court of the nation assumed to decide in favor of such authority, it occupied the position and assumed the prerogative of an absolute monarch. The supreme court of the United States was as much bound by the decision of the state courts upon questions arising under state constitutions and laws as were the courts of the states by the decisions of the federal courts upon questions arising under the constitution and statutes of the United States. The adoption of a different rule will subvert the principles of our government, and, as a necessary result, the will of the supreme court will become the supreme law of the land.

We might give other instances wherein the federal courts have overridden state tribunals without warrant of law and in disregard of state rights; but we pass to another question which is now engrossing public attention, and upon which the supreme court has recently made a decision. The question whether railroad corporations are public or private has been before the supreme court. The court has passed upon it, and decided that railroads are public highways; but it has not yet decided that railroad corporations are public. No question connected with railroads is of more importance to the people. If they are public highways, then the legislatures of the states have full control of them, and the roads are as much a part of the public or common property of all the people, to be used as occasion requires, as are common highways. Then the right to levy and collect taxes to aid in their construction, or to wholly construct them, cannot be questioned. The supreme court of the United States, in a very recent case appealed from the state of Wisconsin, has decided that, for the purposes of taxation, railroads are public highways. The opinion was delivered by Justice Strong, and is ingenious as well as unique. We desire to call the reader's attention to some portions of it, for the purpose of showing how the rights of the people are protected by the judiciary of the United States. The opinion pronounced by Justice Strong fully illustrates the fact that association and education will influence the decisions of judges as well as those of other men; and while we impute no improper motives to the judiciary of the nation, we say that this decision disposes of some of the rights of the people, supposed to be fully protected by the fundamental law, with as little hesitation as would be manifested by an inferior court in a case involving only the plainest legal points. The court says:

"The legislature cannot create a public debt, or levy a tax, or authorize a municipal corporation to do so, in order to raise funds for a mere private purpose. It cannot, in the form of a tax, take the money of a citizen and give it to an individual, the public interest or welfare being in no way connected with the transaction. The objects for which money is raised by taxation must be public, and such as subserve the common interest and well-being of the community required to contribute."

That this is good law, all will admit; but what shall we say of the following, copied from the same opinion:

"To justify the court in arresting the proceedings and declaring the tax void, the absence of all possible public interest in the purpose for which the funds are raised must be clear and palpable—so clear and palpable as to be perceptible by every mind at the first blush."

It is decided by the supreme court of the United States, that if there is any "possible public interest" in the purposes for which a tax is levied, then such levy of tax is constitutional, and this decision is to be received as the supreme law of the land. Is this good law? The public has an interest in toll-bridges, plank roads, ferries, manufacturing companies, and many other enterprises prosecuted and controlled by private corporations and individuals—are these all so connected with the administration of the government as to be proper objects of compulsory contributions for their support? The man who crosses the bridge pays toll; the party driving over the plank road does the same; the ferryman exacts fare—and all receive it, not for the benefit of the public, but for their own private uses. Yet the public have an interest in them. Are they public corporations? Suppose the legislature of the state should, by statute, declare them public corporations, under what provision of the constitution is found the power to tax the people for their construction while they are owned and controlled by private parties? Stage coaches and steamboats are owned by private parties; they are common carriers, subject to be regulated and controlled by law; the public have an interest in them; the legislature can prescribe rules and regulations to be observed by them in the prosecution of their business as common carriers. Can the people be compelled to pay taxes for their support? No distinction exists between common carriers by water or by land over ordinary highways and railroad companies as to their rights and duties when the public are concerned, except that railroads cannot be built until the companies building them have procured the right of way. Private companies own the roads; they sell and mortgage them; they receive all the profits, and control them in their own interest. If a tax can be levied to aid in building railroads owned by private parties, then taxes can be levied in amount sufficient to build the entire road. If the decision is sound, its results will prove most disastrous.

The people will be compelled to build the roads for private corporations, and, after they are built, pay toll or fare for the privilege of using them. The people pay for the roads, yet they do not own them, and have no interest in them, or right to use them except upon payment of such sums as the private corporations owning them may choose to demand. We insist that no such power is vested in the legislatures or in congress. If the power does exist—if the people can be compelled to build railroads for private corporations—in the language of a distinguished judge of the state of New York, "It is legal robbery, less respectable than highway robbery, in this: that the perpetrator of the latter assumes the danger and infamy of the act, while this act has the shield of legislative responsibility." The effect of this decision is to make railroad companies a component part of the government, to draw more clearly the line between the people and the combination of monopolies that now control the country. When the court of last resort in the nation comes boldly to the front, and by an edict (for it cannot be treated as a judicial decision) declares that unless there is an "absence of all possible public interest, so clear and palpable as to be perceptible by every mind at first blush," the power to levy and collect taxes in aid of railroads owned and controlled by private corporations exists, the people have reason to fear that the interests of railroads and not the constitution of the country is the paramount law. But says the court, "That railways, though constructed by private corporations and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had an existence. Very early the question arose whether a state's right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railway. Clearly it could not, unless taking land for such a purpose was taking land for public use. The right of eminent domain nowhere justifies the taking of property for private use. Yet, it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such road, making compensation to the owner. What else does the doctrine mean if not that building a railway, though it be built by a private corporation, is an act done for a public use. And the reason why the use has always been held a public one is that such a road is a public highway, whether made by the government itself or by the agency of corporate bodies, or even by individuals, when they obtain their power to construct it from legislative grant." If the court had been employed as the attorneys of the parties seeking to collect the tax, no more ingenious or partisan argument could have been made for the claimants than is presented in this opinion. As a finishing argument in favor of the taxing power, the court says: "Whether the use of a railway is a public or a private one depends in no measure upon the question who constructed it or who owns it." The court decides that railroads are used for public purposes; that the right of eminent domain attaches to them; that, being used for public purposes, and having the right of eminent domain, they are public highways; and, being public highways, taxes may be levied upon the people to aid private parties in constructing them. We have quoted enough of this decision to give the reader an idea of the train of reasoning resorted to by the court to support the theory that railroads owned and controlled absolutely by private parties are public highways, and that the people may be taxed to build and maintain them. If the supreme court of the United States possessed the power under the constitution to pass upon the constitutionality of the law of the state of Wisconsin, we would be compelled to accept this decision as the law of the case; to acknowledge that as a question of law private railroads were public highways; yet, as a matter of fact, we would still have to insist that they remained private roads, over which the public could ride or ship freight upon making compensation to the owners, just as they could ride or ship freight upon a steamboat or common road wagon upon paying the required amount to the owner or master. While legislatures grant to railroad companies the right to appropriate the lands of others in procuring the right of way, upon making compensation therefor, no part of the price for this right of way is paid by the government or the public. It is paid by the companies building the roads. We are not prepared to admit that the grant of this privilege to railroad companies makes them a part of the government, or that it clothes them with any of the attributes of sovereignty. Taxes can only be levied for public purposes, for the support of the government, and for the benefit of the public. The compulsory payment of taxes to private corporations cannot be supported upon any other basis than of our government being a despotism and not a constitutional republic. We have before referred to the action and decisions of the supreme court on questions arising between the people and corporations, and only refer to it here for the purpose of showing the necessity of reform. The action of the courts shows that, whatever may have been their intention, they have departed from old constructions of the constitution; that judicial legislation has superseded constitutional restrictions and limitations, and that the personal views of the judges constituting a majority of the court have become the supreme law of the land.

Another noticeable fact is that the recently appointed judges are the most prominent in this new departure. We make the assertion that the supreme court of the United States does not possess the power under the constitution to overrule or disregard the decision of a state court upon questions arising under state laws and constitutions. No paragraph, line, or syllable, of the constitution of the United States confers this power upon the supreme court, save when the state law or constitution contravenes some provision of the constitution of the United States, or some statute passed in aid of constitutional provisions. If the reader will examine the decisions from which we have been quoting, he will find that the rights of the states and of the people, expressly guaranteed by the constitution, have been, by a bold and unwarranted assumption by the United States supreme court, obliterated. The decision of the supreme court of a state, whose decision was final and binding upon the supreme court of the United States, has been overruled and declared null and void, not by virtue of any constitutional right vested in the United States court, but by an assumption of power making the will of that court the supreme law, and placing corporations beyond the control of the states granting them their charters. The fact that the reason upon which the decision is based appears in the nature of an apology for the decision, while constitutional rights are lost sight of, proves the truth of our assertion, that judges of courts are subject to influences that control other men, and that the interest of monopolies and not the constitutional rights of the people has a controlling influence in the highest court in the nation. It also demonstrates the fact that no thorough reform can be effected until the constitution of our common country shall control the decisions of the courts.