Employes, while engaged in the legitimate business of their companies, should, of course, be transported free, but a great many persons receive passes and are classed as employes who never render any legitimate service for the company giving the pass, and by far the greater portion of passes are not granted from pure motives, but are given for the purpose of corrupting their holders. It arouses antagonism, because as a rule passes are given to people who are fully able to pay their fare and are denied to those who are least able to pay it. The passenger who pays his fare and then finds that a large number of his fellow-passengers travel on passes realizes that he is compelled to pay a higher fare that others may be carried free. He feels that he is unjustly discriminated against, and wonders why such discrimination is tolerated in a country whose institutions are founded upon the very principle of equal rights to all. A good anecdote is related which well illustrates this feeling. A farmer and a lawyer occupied the same seat in a railroad car. When the conductor came the farmer presented his ticket, and the lawyer a pass. The farmer's features did not conceal his disgust when he discovered that his seat-mate was a deadhead. The lawyer, trying to assuage the indignation of the observing granger, said to him: "My friend, you travel very cheaply on this road." "I think so myself," replied the farmer, "considering the fact that I have to pay fare for both of us."
But what must be a passenger's surprise when he finds that the judge who to-morrow is to preside at the trial of a case in which the railroad company is a party to-day accepts free transportation at its hands. A judge may scorn the charge that he is influenced by a railroad pass, but his fellow-passenger who has paid his fare cannot understand why the railroad company should give passes to one class of people and refuse them to others, if it does not consider one more than others to be in a position to reciprocate its favors.
In their endeavor to win over the courts, however, the railroads do by no means confine their attention to the judges. They are well aware that a biased jury is often more useful to them than a biased judge, and efforts are made by them to contaminate juries, or at least prejudice them in their favor. A prominent Iowa attorney, the legal and political factotum of a large railroad corporation, for years made it a practice to supply jurors with passes. In one instance, when it was shown in court by the opposing counsel that all jurors in the case on trial had accepted passes from the railroad company which was the defendant in the case, the judge found himself compelled to discharge the whole jury. The argument made by this counsel, in support of his motion that the jury be discharged, was certainly to the point. He showed that in order to have an equal chance for justice it would be necessary for his client to give each juror at least fifty dollars to offset the bribes given to them by the railroad company.
That it has always been the policy of railroad managers to propitiate the judiciary is a fact too generally known among public men to admit of contradiction. If a judge owes his nomination or election to railroad influences, railroad managers feel that they have in this a guarantee of loyalty. If, however, he acquires the ermine in spite of railroad opposition, every effort is made to conciliate the new dispenser of the laws. The bestowal of unusual favors, flattery, simulated friendship and a thousand other strategies are brought into requisition to capture the wayward jurist. If he proves docile, if his decisions improve with time and show a gradual appreciation of the particular sacredness of corporate rights, the railroad manager will even forgive him his former heresy and rally to his support in the future. But if he asserts his convictions, if he attempts to discharge the duties of his responsible office without fear or favor, if he can neither be corrupted nor intimidated, all available railroad forces will be marshaled against him in the future.
It cannot be surprising that, under such circumstances, there always has been a tendency among judges to be conservative and to give the railroads the benefit of the doubt in their decisions. Judges well know that railroad companies appeal almost invariably when the decision of a lower court is adverse to them, but private citizens only in exceptional cases. They also know that railroads never forgive adverse decisions, whether right or wrong, while private citizens, as a rule, accept the decision of the court as justice, and do not hold the judge responsible for its being adverse to them. Our judiciary is, and probably always has been, as incorruptible as the judiciary of any country in the world; but our judges are made of no better material than our legislative or executive officers. Weak men, in all stations, are influenced by wealth and power, and weak judges can always be found who will be led or forced from the path of duty so long as corrupt men are permitted to manage railroads and to remain in possession of a power only inferior to that of an autocratic ruler.
The influence which railroads exert extends from the lowest to the highest court of the land. Federal courts have more than once been successfully appealed to to give legal sanction to the perpetuation of gigantic frauds, or to frustrate attempts made by the individual States to place restrictions upon roads operated within their respective borders. Twenty years ago a Federal judge aided Mr. Gould in his notorious Erie transactions, and in more recent years a Federal circuit judge in the West threw the property of the Wabash Railroad Company, upon the application of its own directors, into the hands of receivers selected by its former managers without the knowledge or notice of its creditors, and issued orders for the management of the property which greatly discriminated in favor of certain bondholders and were so manifestly unjust that Judge Gresham, before whom the case was subsequently brought, did not hesitate to say to them that "the boldness of this scheme to aid the purchasing committee, by denying equal right to all bondholders secured by the same mortgages, is equaled only by its injustice." At the same time one of the counsel for the dissenting bondholders characterized these strange orders as "the highwayman's clutch on our throat, the robber's demand, 'Your money or your life.'"
The decision which the Supreme Court of the United States rendered in the Granger cases in 1876, affirming the right of a State to control railroad charges for the transportation of passengers and freight wholly within the State, was a serious disappointment to railroad men, for it was the first step toward wresting from them the power to arbitrarily control the commerce of the country. Ever since that time it has been their determined purpose to bring about, if possible, a reconstruction of the Federal Supreme Court, in order to secure a reversal or modification of the Granger decision. In the case of Peik vs. Chicago, 94th U. S., 176, the Supreme Court laid down the following broad principle of law: "Where property has been clothed with the public interest, the legislature may fix a limit to that which shall in law be reasonable for its use. This limit binds the courts as well as the people. If it has been improperly fixed, the legislature, not the courts, must be appealed to for a change." In one of the Granger cases the same court used the following language: "We know that this is a power which may be abused, but that is no argument against its existence. For protection against abuses by legislatures, the people must resort to the polls."
Fourteen years later, in the case of C. M. & St. P. R. Co. vs. Minn., decided in October, 1890, the same court rendered a decision so indefinite that the lawyers differed much in their opinions as to its meaning, and it appears that the members of the court who made the decision also differed in their opinions as to the meaning of the decision; for Justice Bradley said in his dissenting opinion, in which Justice Gray and Justice Lamar concurred, that the decision practically overruled Munn vs. Illinois; but the same court, in a case entitled Budd vs. New York, submitted in October, 1891, and decision rendered February 29, 1892, and opinion delivered by Justice Blatchford, in referring to the Minnesota case, after quoting the above statement from Justice Bradley, said: "But the opinion of the court did not say so, nor did it refer to Munn vs. Illinois, and we are of opinion that the decision in that case is, as will be hereafter shown, quite distinguishable from the present case."
It is thus apparent that this court has adhered to the decision in Munn vs. Illinois, and to the doctrines announced in the opinion of the court in that case, and those doctrines have since been repeatedly enforced in the decisions of the courts of the States.
Judge Brewer, whose zeal for the defense of corporate interests seems to amount almost to a craze, dissented. He said: "I dissent from the opinion and judgment in these cases. The main proposition upon which they rest is, in my judgment, radically unsound. It is the doctrine of Munn vs. Illinois reaffirmed. The paternal theory of government is to me odious. Justice Field and Justice Brown concur with me in this dissent."