Monopolies and the People

by D. C. Cloud

In proof of the facts that the decisions of the supreme court of the United States are not always controlled by the constitution, let us again refer to the legal tender decisions. Here again, the opinion of a bare majority of the court (five of the judges concurring and four dissenting) establishes the law for forty millions of people, and does violence to both the letter and spirit of the constitution. Under the constitution the power to coin money and regulate its value is vested in congress. The states are prohibited from coining money, and from making anything but gold and silver coin a tender in payment of debts. The letter of the constitution does not deny to congress the power to issue paper money and make it a legal tender; but when we take into consideration that the power is denied to the states, the conclusion is irresistible that the power was intended to be denied to the general, as well as to the state governments. While as a war measure the power might be exercised, it certainly could not be in time of peace. Being one of the extraordinary powers vested in congress in time of war, rising above the constitutional restriction, if we may use the expression, governed by the law of necessity, the power should not be enlarged by judicial interpretation, nor should the plain letter of the acts of congress passed as war measures be made to extend beyond its express provisions. When the highest court in the nation decided that the legal tender act was ultro-active in its operations, that court decided, in effect, that under the constitution congress possessed the power to annul contracts made between private citizens, that one might legally take from another a part of his property without compensation. While that court has uniformly decided that bonds obtained from counties, cities, and towns fraudulently, and without consideration, must be paid, it decides that a retroactive statute may be passed which takes a man's property without consideration; and that congress, without any such power being conferred by the constitution, can substitute a new standard of values. Not only that congress can do this, but that the legal tender act extended beyond its plain reading, and made paper money, a thing that is of no intrinsic value, a legal tender for debts generally; that this paper was the standard of values, and that coin, gold and silver, were but articles of commerce, the value of which was fixed by this new paper standard. If one not learned in the law had been called upon to interpret the constitution he would have arrived at a different conclusion. If ten years ago one learned in the law had been called upon to interpret the meaning of the constitutional provision above referred to, he would, without hesitation, have decided that such an act was unconstitutional. If the eminent jurists who graced the supreme bench at any time since the organization of our government had been required to decide as to the validity of the statute, or to construe its terms, or declare its meaning, a realizing sense of the obligation resting upon them, and of the danger of violating the provisions of the constitution, would have deterred them from making such a decision. When, in the winter of 1869, the question was before the court, upon careful examination Chief Justice Chase, who was the author of the statute under which the question arose, and four other judges, decided that it only applied to contracts made after its passage, and then only as a war measure. The supreme court of the United States declared that the legal tender act had no retro-active operation, and that, under the constitution, it could not be extended beyond its terms. That to extend it further would be a violation of the fundamental law. Here the matter should have ended. The decision was and should have remained final. But it did not meet the approval of corporation rings and Wall street gamblers. They demanded a different decision, and their demand was gratified. To obtain a reversal without a reconstruction of the court was not expected. It was suddenly discovered that there was a necessity for an additional judge. The reason given was that an even number of judges might divide and no decision could be rendered. Hence the necessity for one more. It was known to them that one judge was about to resign, and that one had concurred in the decision which they desired reversed. Two judges were to be appointed. If both were in favor of reversal, then five of the nine would favor a reversal. (We have referred to this matter before, and do it now for a purpose that will soon appear.) Two railroad attorneys, Strong and Bradley, were recommended and appointed before the close of the term of the court at which the legal tender decision had been rendered. Notice was at once given that the legal tender case would again be presented to the court for a decision. It was announced, both before and after the appointment of Messrs. Strong and Bradley, that they were committed to a reversal of the legal tender decision. Soon after these fresh caught railroad attorneys had taken their seats upon the supreme bench, we find them redeeming the pledges the friends of a reversal claimed had been made, and writing long arguments in favor of a reversal of the opinion of Chief Justice Chase and the four other eminent judges, in which argument they seem to disregard constitutional restrictions, and to apologize for the opinions they pronounced, declaring that treasury notes are a legal tender for all debts, save those that are excepted in favor of the government. Thus by the appointment of two judges, understood to be pledged to the railroad interests, the supreme law of the United States makes paper "promises to pay" a legal tender when contracts call for money; fixes this kind of paper as the standard of values, and makes gold and silver coin articles of commerce, and at the same time the constitution makes coin a legal tender and the standard of values, and prohibits the states from making anything but coin a legal tender. To serve a particular interest and benefit railroad corporations, the personal views of these two judges, approved by three others, became the supreme law of the land, in disregard of the plain letter of the constitution, as well as the decisions of the same court upon the same statutes made but a few months before.

We have been thus particular in referring to this decision and the means used to procure it, for the purpose of showing that the idea of exacting pledges of men who are candidates for judicial position is not new, and that those who apparently look with alarm at what they are pleased to term an innovation upon long established precedents, as well as an attempt to destroy the independence of the courts of the country, have themselves been successfully practicing the same thing, and securing the election and appointment of judges whose views accorded with their own.

Fourth.—Judicial and Partisan Legislation Reviewed, and a Remedy Suggested.—The consequence of special legislation in favor of railroad corporations, the granting of subsidies of land and bonds, is not what is claimed by the advocates of such legislation. It has placed the whole producing interests of the country at the mercy of soulless corporations. It has given railroad corporations title to, and absolute control of, enough of the public land to make an empire of vast extent. Lands that of right belong to the people, are owned by these corporations, and instead of the nominal price fixed by the government upon them, our pioneers, who settle and develop the country, must pay whatever sum is demanded by these corporations, or content themselves with such lands as they can find in less desirable localities.

It has given to railroad corporations the absolute control of the coal lands of the country, so that in the future, as well as at the present time, at all points where there is a scarcity of timber, the people are compelled to pay such prices as are, and in the future will be, demanded of them or perish with cold.

It has established an unequal and unjust system of taxation, by means of which corporations are relieved from the payment of their just proportion of the public taxes. It sanctions and supports bare frauds upon the public, in permitting corporations to add to their capital stock at pleasure, making the apparent cost of these roads much greater than they really are, and permitting them to extort from the people for transportation of freights sufficient amounts to pay the interest and dividends on this "watered stock." It has taken from the people the rights guaranteed to them by the constitution, and transferred their rights to railroad companies. These are a part of the evil consequences of partial and special legislation in favor of corporations; and they could be speedily remedied, but for the decisions of the courts.

These decisions we have noticed, and have shown that whatever may have been the intention of the courts rendering them, their tendency has been to strengthen and uphold the mighty power asserted by corporations. Where conflicts have arisen between counties and municipalities on the one side, and these corporations on the other, the courts have treated these railroad companies as private corporations, and have decided in their favor. When the majority of a legislature, believing that corporations were subject to legislative control, have attempted to restrict their powers, and correct their abuses, the courts have said their charters were in the nature of contracts, which the legislature could not alter or amend, and the people have been compelled to submit. When the question of the right to levy taxes for the purpose of building railroads is to be decided, another phase of the question is presented. All the courts agree that taxes cannot be levied for a private purpose. The difficulty is met and overcome in this way:

First.—It is announced that railroad corporations have the right of eminent domain, that this right is an attribute of sovereignty; and for this reason they must be considered public corporations. We have referred to this already, but refer to it again for the purpose of showing that the argument is not sound. The right of eminent domain is possessed by the supreme power of the nation. It belongs to all governments. Of right it is not inherent in, nor can it be acquired by, any private person or corporation. If the right is ever exercised by any corporation, company, or individual, it must be by the permission of the governing power; in this country by legislative grant. If it belonged to corporations they could exercise it without the consent of the legislature. They could themselves decide how, when, and where they would exercise it. They could prescribe the mode of condemning the property of others to their own use, and no power in government could question their acts. It will not be contended that without special legislative enactment, railroad companies could appropriate the property of others for the purpose of building their roads upon it. All will agree that before they can do this, the legislature must confer the right upon them. Does the act of granting to corporations the right to build their roads through the property of others confer upon them any of the attributes of sovereignty? If so, the legislature possesses the power of granting its attributes to corporations or to any private person. It would be immaterial whether a single person, a company, or a corporation, desired to build a railroad. To make such person, company, or corporation a part of the government, the legislature need but delegate to the party desiring to build a railroad the right of eminent domain; and from that moment the individual or corporation becomes a part of the government. A moment's reflection will convince the reader that the position is untenable. If one of the attributes of sovereignty can be farmed out to railroad corporations, another can be to some other interest, and in process of time the government itself would become a mere skeleton, having delegated all its powers to private parties, remaining only a government in name. From time immemorial, the legislature has granted to various parties the same kind of privileges that are granted to railroad companies; yet it never was, and is not now claimed, that because of such grants, the parties obtaining them became public corporations, or that they were clothed with any of the attributes of sovereignty. Ferry companies, plank-road companies, and turnpike road companies, have been chartered with power to take the property of others, and place their ferries, buildings, and roads upon the property so taken, upon payment of the appraised value. In many of the states laws have been enacted under which private parties have been granted the same privilege. Persons building mills are permitted to construct dams across streams and appropriate such portions of the overflowed lands of adjoining owners to their own use, upon payment of its value as found by appraisers. A and B, and their associates, desire to build a mill; in the construction of their dam they cause the backwater to flood the land of C. Under the provisions of the statute a jury is called, who assess the value of the land of C so overflowed and appropriated by A and B. The mill is built for the accommodation of the public. All who desire to do so can take their grain to this mill and have it ground upon payment of the required toll. The owners have, under the statute, the same right of eminent domain that is conferred upon railroad companies; and their mill is used expressly for grinding for all who patronize it and pay the required toll. The owners of the railroad, and the owners of the mill alike, serve the public. Both do it for a pecuniary consideration. Both have the same right of appropriating the property of others. Yet the railroad, under the decisions of the courts, is a public corporation, while the mill is a private one. The railroad corporation is clothed with one of the attributes of sovereignty, while the owners of the mill retain their character as a private corporation. No good reason appears for this distinction. While we admit that the supreme court of the United States has decided that because of the fact of legislatures having granted to railroad companies the right to appropriate the lands of other persons to be used as road-beds, they become public corporations, and that until reversed we must accept it as the law, we contend that as long as the railroads are owned and controlled by private parties, and their earnings are appropriated and used exclusively for private purposes, the facts are in direct conflict with the law as declared by the supreme court, and that either the facts or the law must be changed before they harmonize.

Second.—It has also been decided by the courts that railroads are public highways (an absurdity on its face, that under the law railroads are public highways, while they are owned and controlled by private companies, who become public corporations because of one of the attributes of sovereignty having been conferred upon them), and that, because they are public highways, taxes can be levied upon the people for building and repairing them. The fact being admitted that private parties own and control railroads; that the government receives no part of their earnings, and that neither the government nor private persons can ride upon them without paying for the privilege, or procuring a pass, and that no freights can be shipped over them without payment of the amounts demanded, seems to conflict with the decisions of the courts. Under the decisions of the supreme court, the property of the citizen is taken from him without compensation, and bestowed upon a private corporation, and the plain provision of the constitution has received a new interpretation, which compels the property owners to bestow a part of it on corporations without any consideration whatever. The situation is about as follows: When a conflict arises between the people and railroad corporations, or when the legislature attempts to reform abuses practiced by them, the courts hold that railroad charters are in the nature of contracts, and that the legislature can neither alter, amend, or repeal them. The companies are then treated as private corporations. In proof of this look at the following decision, of recent date:—

"SUPREME COURT OF THE UNITED STATES.

"The Wilmington & Weldon Railroad Company, Plaintiff in error, vs. John A. Reid, Sheriff, etc.—In error to the Supreme Court of the State of North Carolina.