CHAPTER XIII

PURCHASE OF PEACE

Hunting about for tax-dodgers, it was discovered by the authorities

of Pennsylvania some years ago that many foreign corporations were

doing business within the limits of the Commonwealth and enjoying

the protection of her laws, and at the same time not paying for it.

Foremost among these delinquents stood the principal company in the

oil combination with its mammoth capital, practically buying, refining

and controlling nearly the entire oil production of the State, "and

yet failing to pay one cent into the public treasury." So wrote the

Auditor-General to his successor in 1882. The combination, beginning,

like creation, with nothing, had grown, until in 1883 it was so rich

that, according to the testimony of one of its members, it owned

"between $40,000,000 and $50,000,000" in Pennsylvania alone.[311] But

though doing business in Pennsylvania, and legally within the grasp

of the taxing power, as decided by the courts, this company paid no

taxes, and would not give the State the information called for by law

as to its taxable property. It practised "voluntary taxation." "For

eight years," Auditor-General Schell says, "it had been doing business

in this Commonwealth, and had failed in all that time to file a single

report." "It was not necessary for the department to call upon it to

make reports." The law required these reports specifically and in

details that could not be misunderstood, and that was notification

enough. But year after year the Auditor-Generals, whose duty it was to

collect due contribution from each taxpayer, made special demands upon

this one for reports in compliance with the law, but with no effect.

In 1878 William P. Schell became Auditor-General, and began, shortly

after taking his oath, to see if he could find out what taxes were due

from this concern, and how they could be collected. He sent official

circulars to the company in 1878, 1879, 1880, but "there was no reply

made at any time."[312] His predecessor had had the same experience.

He then sent one of his force to Pittsburg, Philadelphia, and New York

to investigate. Whenever he could get the names of persons familiar

with the workings of the company he would visit them, to find himself

usually "not much further ahead than when he started."[313] "It was

impossible to get any information. Even the men we talked to deceived

us. Men came to Harrisburg to give us information, and afterwards we

found they were in the interests of the company."[314] The department

found itself, the Auditor-General wrote to his successor, "foiled at

all points, not only by the refusal of the company to respond to the

notices sent to its officers, but also by the great reticence of all

persons in any manner connected with or employed by the company."

These efforts to find out the nature and character of the business of

the company extended through two or three years. The first workable

indication that the company was taxable in Pennsylvania came when the

Governor of Ohio, in answer to inquiries, sent the Attorney-General a

copy of the charter of the company. The Auditor-General wrote to the

Governor and Auditor-General of New York and the Governor of Ohio for

information. Letters were sent to the president and principal members

of the company at Cleveland, Oil City, New York, and elsewhere. An

answer was finally received from the company's attorney. He said that

the company was not subject to taxation. The department replied the

same day refusing to accept this view, and insisting on reports. Then

the lawyer replied that the books and papers "were at Cleveland, and it

would take some time to prepare reports." The Auditor-General offered

to send his clerk to Cleveland "by first train," to prepare the reports

for the company if assurance was given that he would be permitted to

examine the books of the company when he got there.

No reply to this request was ever received. Then telegrams were sent,

several days in succession, asking for reports, offering more time

if the company would agree to report within any reasonable time, and

finally warning the company that if it did not comply with the law and

file its reports the Auditor-General would act under the authority

given him by the law, and charge it with taxes estimated on such

"reasonable data" as he could procure. All the department could get

were evasive letters or telegrams from the counsel in New York, such

as "letter explaining on the way." The letter came with the valuable

information that "the officers are out of the city, and the company

will answer on their return." Another "reply" was: "I have failed to

get replies from the absent officers."[315] No reports forthcoming,

the Auditor-General at last, on the best information he could get,

backed by affidavits which were placed on file in the archives of his

office, calculated the taxes due from 1872 to 1881, with penalties,

at $3,145,541.64. This was totalled on an estimate, supported by

affidavit, that the profits of the company had been two to three

millions a year from 1872 to 1876, and ten to twelve millions a year

from 1876 to 1880, figures which what is now known show to have been

near the truth. After fixing upon this amount, and before charging it

against the company, the latter was given still another chance, and

another. Two telegrams were sent notifying that the estimated tax would

be entered up if "the refusal to report" was persisted in. The last

telegram said: "Still hoping that reports will come from the company,

so that we will have some data to act upon."

No word of reply came.

Then the Auditor-General formally entered the amount he had estimated

on his books, as the law authorized him to do.[316] His investigations

had consumed his entire term, and the filing of this estimate was

almost his last official act. It is a fact of record that after all

this, officers of the company, in seeking to have this estimate of

taxes due set aside, stated in writing that "there was no neglect

or refusal on the part of said company to furnish any report or

information which could lawfully be required of it by any officer or

under any law of the State of Pennsylvania."[317]

Suit was now brought by the Attorney-General of the State to recover

this tax, as was his duty, and then the company began to stir

itself. To assist him in procuring and interpreting evidence the

Attorney-General, who knew nothing of the oil business, obtained

the services of a man who knew more about it than any one else in

Pennsylvania. This person was a practical oil man. He was one of the

leaders of the producers and refiners' association, which in the

exciting times of 1872, when law and order in Pennsylvania stood on

the edge of a crater, compelled the railroads to abandon the South

Improvement scheme, "in name," and to give in writing the pledge that

"all arrangements for the transportation of oil after this date shall

be upon the basis of perfect equality to all," though he could not

find a way to make them keep the pledge. He was prominent six years

later in the uprising of the people when they found that all these

promises were being broken, and all their rights on the highways being

violated. It was largely through his influence that the producers

determined to proceed against the oil combination as a criminal

conspiracy, and procured the indictment of its principals in Clarion

County, Pennsylvania, on charges of crime.[318] "When," as was said

before the Pennsylvania Legislative Committee of 1883, "the doors of

the penitentiary were gaping wide to receive them; when a true bill had

been found before the Grand Jury; when, if they ever were in jeopardy

before to-day, they were in jeopardy."

He was chairman of the Committee on Transportation of the Oil

Producers' Association, and was one of the "legal committee" of five

who represented the producers in having the "anti-discrimination suits"

brought and pushed against the Pennsylvania Railroad by the State

in 1879. By these suits the discriminations and favoritisms, which,

though known, it had till then been impossible to prove, were forced

into the light as facts, and the evidence was furnished without which

the indictments just referred to could not have been found. When the

accused, frightened at last, succeeded in getting the aroused producers

to agree not to push the criminal trial, in consideration of a solemn

pledge that all secrecy and favoritism in transportation should be

given up, he withdrew from the negotiations and would not sign the

compromise. He had assisted the Congressional Committees of Commerce at

Washington in 1872 and 1876 in their ill-starred investigations, and

had been active in the effort to get another investigation begun in

1880. He had also been one of the principal witnesses before the New

York Legislative investigation of 1879. For eighteen years he had been

on this quest. With him the Attorney-General now arranged to get the

evidence on which the State could support its claim for taxes.

The members of the great corporation saw that they must act. In

out-going Auditor-General Schell they had met the first officer of

the people who was as determined to make them pay as they were not to

pay. The policy of silence and nullification was abandoned. One of

the members of the trust came in person to the State capital to see

the Attorney-General. He made an unexpected overture. He volunteered

to furnish the State with a full disclosure of the facts it needed to

prove its claim.

"I confess," said the Deputy Attorney-General, "that I little knew in

what direction to cross-examine him."[319] He therefore sent for the

expert who had been employed by the Attorney-General. The "trustee"

protested against his presence; but the Deputy Attorney-General said

that he had been employed by the State, and it would be necessary that

he should take part. The representative of the trust, moved, as he

afterwards testified, by the patriotic consideration that "the regular

cumbersome way of taking oral testimony ... would result in great labor

and expense to the State, and would be an obstruction and labor to us

that could be avoided," made a suggestion that the State go to the

trial of the case upon a statement of facts of their business which he

and his associates would make. This offer to become a volunteer witness

was agreed to, and the delinquent corporation and the State went into

court with an "agreement as to facts." The Attorney-General reserved

for the State the right to add to these facts, but did not at any time

during the proceedings do so.

His expert shrewdly foresaw that another defeat for the people was to

be the result of this policy. "I objected very strenuously," he says.

"It was my pet scheme to examine them orally in court or by commission,

and I gave it up very reluctantly. I told the Attorney-General I could

not believe those gentlemen were in earnest, that I knew I could ask

a string of questions of any one of them which if answered would have

given the case away to the State."[320] But the Attorney-General,

the same who as counsel for the people, in 1879, against the members

of the same corporation, led his clients to defeat, overruled him.

The old campaigner saw the mistake of 1880 about to be repeated, and

an agreement with the offenders substituted for trial and for the

defeat of them he believed would follow. He determined to prevent

the consummation of this second catastrophe. He sent his counsel to

New York to the headquarters of the oil combination with a notice

that he would not adhere to the bargain made by the Attorney-General

at Harrisburg with reference to "the agreement of facts." "I propose

to attack," was the message he sent.[321] He was to have received

compensation from the State. He believed that this gave him an interest

in the matter sufficient to gain a footing in the courts for action by

himself independently of the Attorney-General. In pursuance of this

idea, when the case came up for trial, he appeared with his private

counsel ready to take part in the proceedings if permitted.

The notice of attack was received "with surprise," but was met with a

characteristic move. "I raised the question with him"--the counsel--"as

to what possible motive" his client "had in the matter," the "trustee"

testifies, "and as to whether it would not be better for him to desist

from it; whether it would not be possible for us, if he was needing

business, to find some position in which he could legitimately earn

a living."[322] The lawyer replied that he had no right to treat on

any such basis, and withdrew from all connection with the case. But

this was the opening of a negotiation which through another lawyer

"resulted," as the expert of the State afterwards confessed, "in peace

between us." He had given notice that he meant to attack, and the

"negotiation" which followed "was whether anybody would give me as much

as there was in my contract with the State if I would not attack."[323]

Meanwhile the Attorney-General marched gayly to another defeat of his

client--the people--going into court with no other ammunition than the

facts furnished by the men he was suing. He did not put his expert,

nor the Auditor-General, nor his assistant, nor the men on whose

information and affidavits the estimate had been made of taxes due,

nor any one else on the stand. He was "perfectly satisfied," he says,

"that these facts were true," and that the company were "in good faith

doing exactly what they undertook to do--namely, to furnish me with

all the information that was necessary to establish the Commonwealth

case."[324]

His method was as singular with the argument as with the testimony.

He insisted, in opposition to the opinion of Auditor-General Schell,

that such a corporation must pay taxes on all its capital stock,

whether it represented property in the State or out of it. The court

decided against him. It held that it was taxable "only on so much of

its capital stock as was represented by the business and property of

the company within the State." As to what the amount of this property

and business within the State was the court took the facts furnished

by the delinquent itself, as they were the only ones presented to it

by the Attorney-General. The amount originally charged for taxes by

Auditor-General Schell, who had forced the fighting, was $3,145,541.64.

The Attorney-General, on his mistaken theory of the law and on the

facts volunteered by those he was suing, had "split the difference" and

sued for only $796,642.20. The court cut this down to $33,270.59, and

on appeal this was still further reduced to $22,660.10.[325]

This decision was not final or conclusive as to either the State or the

company, both of whom afterwards sued out writs of error. The expert,

who had been pushed to one side, at once determined to take what steps

he could to reopen the case and mend the fortunes of the State. The

moment the decision was announced he telegraphed the Attorney-General

again for another conference, and was told to come to Philadelphia. He

told the Attorney-General that he thought "the hope of the State to get

the largest amount of money was to get a rehearing and let us have an

oral examination." But the "satisfied" Attorney-General refused to do

anything but carry the same argument and the same agreement of facts up

to the Supreme Court. He refused to move for a new trial, and not only

told his expert so, but told the "trustee" so. The trustee, by one of

those coincidences which prove how much better it is to be born lucky

than rich, happened to have come at the same time to stay in the same

hotel with the Attorney-General.

It was in vain that the expert pointed out omissions of property and

facts which he thought "had not been clearly shown in the agreement

as to facts," and afterwards other matters he had discovered. After

the defeat of the State he prepared an affidavit containing additional

facts. He employed an attorney in the preparation of this affidavit and

a petition to the court to have the case reopened. His purpose was "to

get another chance at this trial."

"To get another trial?"

"Anything."

"Another hearing?"

"Anything." Anything to prevent the miscarriage of this last attempt to

"round up" the men he had been trying for nearly twenty years to bring

to justice. The Attorney-General would not present this petition. After

this, still before the final decision, he saw the Attorney-General

again to renew his pressure for a change of policy. Three times he saw

the Attorney-General to lay his additional facts before him, and urge

that a different method of conducting the case be tried.[326] Some of

the new points he raised the Attorney-General referred and deferred to

the company he was pursuing, and "we showed him how they were fully

included in the statement rendered by us to the State, and he (the

Attorney-General) expressed his entire satisfaction with every point

raised." Others of the new points the Attorney-General declared to be

"immaterial."[327] The Attorney-General showed no wish to bring proof

into the case of any facts except those furnished by the people being

sued. Although the decision of the lower court had been a warning that

the theory on which the State had gone into court was bad, and that

the amount of taxes to be recovered depended on the amount of tangible

property in the State, he refused to use the right he acknowledged he

had--to call other witnesses, to put the men who had made the agreed

statement of facts upon the stand, and cross-examine them.

From the Attorney-General, who knew little of either the facts, as he

confessed, or the law as the court declared it, who accepted their

statements as gospel, and who asked them whether new facts offered

him should be admitted into his side of the case against them, the

company had nothing to fear. But this old opponent of theirs, whom

the Attorney-General had employed, was at large, and was a dangerous

man. He knew the facts; he had the right theory of the law; he was

tremendously in earnest. The case had only got as far as the first

decision of the lower court. There were still opportunities for all

kinds of legal proceedings. By virtue of this contract he claimed such

an interest in the proceedings as to give him a right to ask the courts

to interfere. He might get a new trial and carry out his "pet scheme

of oral examination." He might rouse the people as he had roused them

before. He might interfere through the Legislature. He might raise a

storm which could not be quieted until in this suit, or some other, his

pet plan might be carried out, of getting these silent gentlemen into a

witness-box. He considered himself to be in the service of the State.

"I was under a contract with the State,"[328] he says. And we find the

Attorney-General in close consultation with him in Philadelphia down to

the very last day.

The company sees that something must be done, and does it. Its

"trustee" calls upon the expert at his hotel.[329] He renews the

suggestion he had made in New York when word had been sent by

the expert that he would not be bound by the agreement of facts,

and "proposed to attack." He finds his man cast down, utterly

discouraged by the decision of the lower court and the attitude of

the Attorney-General. Time and again he had seen the people denied

justice, and their enemies escape even so much as the necessity of

appearing in court. He had seen, in every one of the proceedings

against them, from 1872 to 1880, committees of Congress, State

governors, judges of the Supreme courts, State legislatures,

attorney-generals, railroad officials, every trustee of the people,

wilt, like green leaves in a fire, before this flashing wealth. His

resolution gave way. He was to have received, under his agreement

with the Attorney-General, in salary and commissions, $23,000, or

less, according to the amount recovered. That he saw fading out of

sight in consequence of the, to him, inexplicable course of the

Attorney-General. Every one else who had tried to stand up for the

people against this power had gone down; why should he be quixotic and

poor?

"We want peace," the "trustee" said, and the, till then, faithful

friend of the people sold him all he had of that commodity for $15,400,

to be paid in instalments, and a salary of $5000 for a year.

"I proposed to reopen it"--the case--"and I did not."

"Why did you not?"

"Simply because I was assured I should have just as much money out of

the transaction as my original contract would have paid me."

This confession made on the stand, under the strain of

cross-examination in a civil suit in which he was a witness, startled

the country with its first hint of the real cause of the failure of

the great tax case, and led to an investigation by the Legislature of

Pennsylvania.[330]

The first payment was $7500. This was paid, not in a check, as is the

usual method between business men in legitimate transactions, but in

bank-notes--$500's or $1000's.[331] That this method of payment was

inconvenient and unusual was shown by the statement of the recipient,

that he went to the Chemical Bank and got a bank certificate for his

$7500 of bank-notes. "Of course I did not carry that amount of money

around with me.[332] Bank-notes and bank drafts, not the company's

checks, were used in the succeeding payments also.

"In sending him money to Titusville, where you had a bank account, why

did you not send him a check on your own bank or draft?"

"Well, there was nobody at Titusville who had any knowledge of the

matter. It was not necessary to acquaint them with it," said the

"trustee."[333]

This representative of the company was diligent in business, as he

understood business, and was always forehanded. He made the first

moves and kept the lead. He went all the way to Harrisburg to meet the

Attorney-General. He got control of the case by making the overture

to volunteer testimony. He called first on the lawyer sent to New

York with notice of "attack," called first on the State's expert in

Philadelphia and New York, made the first suggestion for "peace," and

got it "cheap."[334] But after he had bought "peace" the next interview

is at the company's office. The other man must walk now. When put on

the stand, the purchaser, of course, denied that this "purchase of

peace" had anything to do with the case against his company, or with

the suppression of the only expert in the employ of the State in that

suit.

"With reference to the tax case," he said, "the payment of this money

had no bearing whatever."

"Then why did you pay him the money?"

"Well, I have already said, two or three times, that I paid him the

money for the purpose of having him desist from further malicious

attacks upon our company."

The man of whom he had bought "peace" was not then engaged in any

proceedings against "our company," except the tax case. He had been

engaged in nothing for two years, since the proceedings of the

Producers' Association in 1880. There were no other movements in

prospect. The only war, actual or contemplated, was this tax war.

Pressed through several pages of cross-examination, and challenged to

name a single instance of war by this man upon them, at the time of

the purchase of "peace," or since 1880, which would account for their

willingness to pay him so large a sum, he was finally forced to say: "I

cannot do it."[335]

The Attorney-General, who had thought it unnecessary to collect more

testimony by putting the defendants on the stand under oath, testified,

of course, that there had been no suppression of testimony. The seller

of peace himself, when he was afterwards brought to book before the

Legislature, attempted to stand to a similar denial that he had in

any way been unfaithful to his trust as the expert of the State and

representative of the people. But he broke down. He was asked if his

agreement with the company had any relation to this case.

"Unquestionably. To all cases--this case and all others."

"You were to do nothing further for the Commonwealth in this or any

other case?"

"Precisely."

"If the Supreme Court had subsequently reversed the case, and it

had gone back for a new trial, and had been tried before a jury, so

that the company's officers could have been subpoenaed and compelled

to testify, would you then, after receiving this money, have been

at liberty to assist in getting that testimony together for the

Commonwealth, and aiding the Commonwealth?"

"I should say not."

"You were free to do it prior to your arrangement?"

"Certainly."

"By whom was it"--the negotiation--"begun?" he was asked.

"By the representative of the company," he replied, naming him.[336]

When this bargain was arranged and the first payment made only an

opinion had been filed. No judgment had been entered. There was still

time to make any one of many moves. Reargument and new trial both were

possible.

These men seduced this representative of the people only to cast him

aside, as seducers always do. They did not pay him "cash down" when

they bought his "peace," but in instalments, and part of his pay was in

the shape of $5000 for a year's service for which he was to do no work.

This kept the whip-hand of him until the tax matter was finally settled

and irrevocably past reopening. When that had been done they cast him

off with scorching contumely. The secretary of the trust waved him into

obloquy as a black-mailer.

When the trustee who negotiated the "peace" was before the committee

of the Pennsylvania Legislature in 1883 which investigated this

miscarriage of justice in the tax cases, he was asked if the man of

whom he had bought "peace" had used the positions he had held in the

producers' and other associations to further his own ends. He answered:

"I think he would prostitute anything to further his own mercenary

ends."[337]

The committee of the Legislature appointed to investigate this

"purchase of peace" furnishes in its report the facts we have recited,

which were uncontradicted, but declares that the transactions they

disclose "did not prejudice the rights of the Commonwealth," and that

nobody had done anything wrong. An effort was made after the failure

of the tax case to get the Attorney-General of the State to issue a

warrant against the purchaser of peace, upon which he could have been

held to trial in a criminal court for bribery and corrupt solicitation

of a public officer. An affidavit charging the crime in the usual

form was presented to the Attorney-General. There was by this time a

new Attorney-General, but he ditched this move with the same skill

for the management of his adversaries' case that his predecessor had

exhibited in the tax suit. He demanded that affidavit be made by

some one who could testify to the bribery of his personal knowledge

before the committing magistrate. As the facts were known only to

the two principals, and neither of them could be expected to come

forward to make affidavit and application for his own commitment, the

Attorney-General demanded the impossible.[338] The fact of bribery was

publicly known by the confession under oath of one of these principals,

and the Attorney-General had been presented with the affidavit of a

citizen, prepared in due and regular form, upon which he could have

proceeded to issue a warrant, as is done in the case of less powerful

offenders. Failing with the Attorney-General to have this transaction

taken into the courts, the effort was renewed with the committee

the Legislature had appointed to investigate. It was asked to do as

committees had done before--to send the case to a criminal court and

let it be tried. The distinguished lawyer acting for the people before

the committee offered to appear as a volunteer Attorney-General in the

prosecution of the trustee. "There is not an honest jury," he said,

"in the State of Pennsylvania which upon the testimony would not send

him to the penitentiary for the crime of bribery."[339] The committee

refused to send the matter to the courts.

Upon the only occasion when the "Trustees" seemed in real danger of

being brought in person and on specific charges to trial, criminally,

the Supreme Court of Pennsylvania saved them. In the Clarion County

cases it took the unprecedented step of interfering with the criminal

jurisdiction of the lower courts. It was in reference to this that Mr.

Gowen said before the Committee of Commerce of Congress in 1880: "I

was a member of the Constitutional Convention of Pennsylvania, and I

know that if that convention did anything effectively it was when it

declared that the Supreme Court should not have original jurisdiction

in criminal cases, and yet I have seen three judges of the Supreme

Court lay their hands upon an indictment in a county court and hang it

up." The effect of this interposition of the Supreme Court is summed up

as follows in the history of the contest between the Producers' Union

and their powerful antagonists: "This practically terminated the last

legal proceeding conducted by the general council of the producers of

petroleum." "It was the greatest violation of law," said Mr. Gowen

before the Pennsylvania Legislative Committee, "ever committed in the

Commonwealth."[340]

That some such action might have been expected could be inferred from

the remark in _Leading Cases Simplified_, by John D. Lawson, warning

the student of the law of carriers "not to pay much heed to the

decisions of the Supreme Court of Pennsylvania--at least, during the

past ten or fifteen years. The Pennsylvania Railroad appears to run

that tribunal with the same success that it does its own trains."[341]

Some time after these events the purchaser of this peace gave

some money to a hospital for cancers, and, in recognition of his

philanthropy, was made its president. This hospital was for cancers of

the body--not for moral cancers of the kind propagated for money by

men who corrupt the Commonwealth. It would have been full expiation

in the good old times of the priest and the baron Ruskin describes to

donate to the cure of an evil a fraction of the profits of the culture

of it. The newspapers in May, 1891, chronicled the opening of another

pavilion of this hospital, and the delivery of "an interesting address"

by the new president. One of the journals remarks that "this interest,

combined with his well-known liberality in Church and humane matters

generally, suggests a thought concerning the peculiar development on

this line of many of our very rich men." But what the "thought" was the

journalist did not go on to state.

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