PATENT RIGHTS AND THEIR ABUSES.
Closely allied to the monopolies of which we have been treating is that
of patents to inventors. The original idea in granting patents was to
protect inventors and discoverers when their inventions and discoveries
were _new_ and _useful_. It is but just that the person who invents or
discovers a new and useful principle in arts or mechanics, or makes a
new and useful combination of principles not new, should be protected in
his discoveries; that for a limited time he should reap the exclusive
benefit of his discovery, in order that he may receive a fair
consideration for the benefit his fellow-men are to derive from his
studies and enterprise.
To these inventors and discoverers we are indebted for much that is of
great value to the public. The arts, sciences, and mechanics, as well as
agriculture, have been greatly benefited by discoveries and inventions.
The wealth, comfort, and happiness of the nation have been increased,
while the inventors, because of the protection afforded them, have
received a fair remuneration. The fact that valuable inventions reward
the inventor liberally has led to great and growing abuses of the patent
right statutes, and to great frauds and impositions. The desire to
acquire sudden wealth has caused dishonest adventurers to enter the
field of invention and discovery, with the intent of defrauding the
people, as well as deceiving the patent office department. The same
desire has caused those whose inventions are of value to resort to
various schemes and subterfuges to continue their exclusive right to
manufacture and sell their inventions long after they have been fully
compensated for all they have expended in thought, time, and labor, in
arranging and perfecting their discoveries and inventions. Having been
granted a monopoly, they contrive to continue it. Lobbyists and
congressmen become interested for a consideration, and patents are
renewed from time to time by an abuse of the law that was designed to
encourage discoveries and inventions, but not to build up and continue
oppressions of the people.
No class of the community has suffered as much from these monopolies as
the agriculturalists. All improvements in farming implements and
machinery are patented. Some of them, patented more than a quarter of a
century ago, are still under the exclusive control of the patentees.
Reapers that cost the manufacturer but fifty or sixty dollars, are sold
for from one hundred and seventy-five to two hundred and twenty-five
dollars, because the patentee, or his assigns, have now, and for nearly
a generation have had, an exclusive right to make and sell them. So with
seeders, plows, harrows, fanning mills, and almost all farming
implements. The farmer is obliged to pay at least one hundred per cent
royalty to the inventor, or his assigns, before he can receive any
benefit from a discovery or an invention designed especially for his
use. The inventors have already realized princely fortunes from their
inventions, and the intent of the law has been fully accomplished; yet
the patents are continued, and no one is allowed to make or sell these
implements without the permission of the inventor. The law, which gave
an exclusive right for fourteen years, has been amended from time to
time; the rights have been extended, until patentees and their assigns
annually claim tribute from the farmer in an amount that is oppressive.
Patent right men operate together; they combine for the purpose of
extorting from the people of this country, where they have a monopoly,
while at the same time they sell their manufactured articles in foreign
markets for one-half the price they demand in this country. We might
illustrate this by numerous facts, but will content ourselves with
reference to sewing machines and reapers. These are all patented, and
all have patents for improvements made from time to time, many of which
improvements are of little or no value, save as a pretext for the
renewal of the patent. A sewing machine that cannot be purchased in the
United States for less than seventy dollars costs but twelve or thirteen
dollars for work and materials. This same machine (Singer's) is shipped
to Europe and sold for $32.00. Here, where the patentee has an exclusive
monopoly, we pay $38.00 more for the machine than it costs in England.
We could order an American-made sewing machine from Belfast, pay freight
and charges twice across the ocean, and get it for one-half it costs to
buy it in America. If you purchase a McCormick's reaper in this country,
it will cost you about $200.00. You can order the same machine from
England, pay freights for its passage twice across the Atlantic, and get
it for about one-half the money. The manufacturer cannot sell in this
country without paying about one hundred per cent royalty to the
inventor, but he can ship to Europe and sell at one-half the price
charged in this country, and realize a fair profit on the sale. When a
farmer purchases a reaper for himself, and a sewing machine for his
wife, paying for the two $270.00, he pays as royalty to the inventor,
$135.00. This same rate has been paid for the last twenty-five or thirty
years. This large royalty is paid to the inventor, and is called
protection. Continued beyond a reasonable time, it is nothing but
legalized robbery.
The fact that large fortunes have been, and are, made by inventors and
pretended inventors, has filled the country with sharpers and swindlers,
who are constantly on the lookout for an idea that may lead to some sort
of invention upon which they can apply for a patent. The ease with which
patents can be obtained encourages them in their undertaking. If we are
to judge of the ability and competency of the examiners of models and
drafts by the patents issued for almost all conceivable articles, we
must conclude that the only qualifications they possess are to receive
the fees, and recommend the issuing of letters patent. Principles so old
that the date of their discovery is lost, that have been in use so long
"that the memory of man runneth not to the contrary," are being
monopolized by letters patent, until a mechanic, or farmer, if he puts a
handle in a hatchet, a hoe, or rake, or changes the arrangement of a
harrow, plow, churn, or washboard, must expect to have a sharp
speculator call upon him for royalty for an infringement upon his
patent. Or, if a seamstress cuts her thread in a particular way, she
must pay royalty. If the farmer makes a glove to protect his hands in
husking corn, before he has used them a half hour, some vender of
patents will call upon him for royalty. If the owner of a house attempts
to paint it, or repair the roof, he must pay royalty for the privilege,
if his own judgment should prompt him to compound his paints with some
article not ordinarily used; or to use for his roof a kind of
composition not in general use.
The increase in the business of procuring patents is now so great that
it has become a general and common nuisance to the whole country. The
following is a list of one week's business in the patent office:
Patents were issued in one week to applicants from the western states
for threading nuts; broom corn duster; threshing machine; school desk
and seat; station indicator; binding screw; corn sheller; windmill;
photograph skylight; corn husking thimble; land pulverizer; manufacture
of sweet biscuit; railroad frog; dress pattern; two for plows; thread
cutter for sewing machine; corn husking glove; wheel plow; bridle bit;
railroad track wrench; cradle; paper file; garden hose holder; sawing
machine; saw swage; scythe rifle; butter package; spring hinge; swage
for forming horse shoes; automatic grain weigher; fire-place grate;
potato digger; automatic gate; faucet; stock for mill-stone picks;
piston valve for steam engine; car coupling; motive power; grain basket;
dining table; portable fence; fishing torch; extension table; driving
gear for hand car; horse collar; harrow; cross-cut saw handle; extension
ladder; machine for cutting leather; bee hive; cloth measuring register;
cutter for tonguing and grooving lumber; heating stove; rotary steam
engine; manufacture of steel; blast furnace; compound for preventing
incrustation; fruit press; fire extinguisher; two for cultivators; hub
for heavy wheeled vehicles; horse-shoe attachment; egg carrier; hose
pipe nozzle; cotton cultivator; shoe pegging and trimming machine;
combined seed separator and drill; felloe; filter for corn-juice, oils,
&c.; gate hinge; distilling of turpentine; cotton stalk knocker;
automatic fan.
The above comprises only a partial list of the patents issued in one
week. Followed up for one year, the list of patents would swell to near
4,000; about one in twenty of which are of value, while the residue are
of no value save to enable the patentee to defraud the people upon whom
he imposes his patent, or to force the timid to pay him royalty. Of the
immense number of patents obtained for improved churns and washing
machines, but few are of any real value. The same is true of patent
bridges, reapers, and mowers, of threshing machines, of seeders and
planters, of fences, and almost all farming implements. So of sewing
machines.
Many of the patents obtained contained no new principle, discovery, or
combination, but, by imposition and fraud, adventurers obtain letters
patent for something in general use, for the purpose of levying
blackmail, in the shape of royalty, upon those who, ignorant of any
exclusive right claimed by any one, continue to use an article which has
been in general use long before the letters patent were issued. But few
farmers or mechanics have escaped the claims of these patent right
sharpers. Rather than be at the expense of defending a suit in the
United States court, they submit to the demands of the man who presents
himself as the agent or assignee of the patentee demanding blackmail,
well knowing that the rascal has no legal claim, but preferring to buy
peace rather than to be annoyed by vexatious litigation.
No better illustration of the results of granting letters patent for
pretended inventions or discoveries, as well as of the careless manner
in which letters patent are issued, can be found than is presented by
the gate, known in the west as "Teel's Patent." This gate in its
combination and construction does not contain a single new principle.
The same identical gate has been in use for thirty years in various
parts of the Union. With the addition of "friction wheels" or "rollers,"
or "pivot wheels" (as they are indifferently called), this gate was on
exhibition and sale in many of the western states in 1863. In fact, the
patent for the friction wheels obtained in that year was attached to the
gate and publicly exhibited, no claim being made for a patent upon the
gate, but only upon the attachment. The gate itself consists of battens
nailed upon the ends and near the center of four or five boards which
forms the gate, with the posts so placed that after it is pushed a
sufficient distance to make it balance on its center, it can be opened,
its center acting as the pivotal point. The balancing principle for
which the patent was obtained was first discovered by two of the
descendants of Father Adam, in their youthful days, when they balanced a
pole or board across a log or a fence, and, seated, one on each end,
enjoyed a game of seesaw. The little boy who built a pig-pen years
before the great intellect of Teel forged the idea, made the same kind
of a balance gate for it. The man or boy of past generations who desired
to make a cheap gate, instinctively made a _Teel Gate_. Yet some ten
years ago the mighty intellect of Teel forged the idea, produced a model
and forwarded it to the patent office. The _Scientific_ (?) _Examiner_,
who decides upon the merits of all inventions, who, if he had traveled
and observed the common farm gate in many parts of the country, must
have seen the gate in actual public use, issued to Teel letters patent,
which are safely and securely held until the new western country is
settled and this cheap gate is in general use, when he and his agents
and assignees appear and demand _royalty_. He has been given an
exclusive monopoly for the making, selling, and using a gate that is not
new in any of its principles. By this fraud of the applicant and the
incompetence of the examiner, the farmer is forbidden to use the old
invention of a cheap gate until he pays a bounty to a patentee. The law
for the protection of discoverers and inventors is prostituted, and the
people compelled to pay out their money without consideration.
The same state of facts exists with respect to many other patents. Men
travel over the country, examine all machinery and farming implements,
not for the purpose of making new or useful discoveries or improvements,
but for the purpose of learning whether they cannot so contrive as to
collect royalty from others for an invention long in use, but for which
the inventor had not asked or received a patent. Add this monopoly of
patent rights to the other monopolies now cursing the country, and the
need of a speedy reform, or the alternative of poverty and bankruptcy
among the producing classes, becomes still more apparent.
This patent right monopoly is, in a great measure, owing to the want of
proper care and knowledge in the department of the patent office, where
the only pre-requisite for the granting of letters patent for almost
anything, where the application is not contested, is a model and the
patent office fee. The effect of this free and easy course in the
department is to bring into disrepute the really valuable invention and
discovery, and to impose upon the people useless burdens.
CONCLUSION.
REFORMATION OR REVOLUTION.--A RADICAL CHANGE DEMANDED IN THE
ADMINISTRATION OF PUBLIC AFFAIRS.--CONCLUSIONS OF THE AUTHOR.
FIRST. We have sought to call the reader's attention to some of the
monopolies existing in our land, and to show their power and influence
with the government, and their control of the commercial and
agricultural interests of the country. It now remains for us to direct
his attention to the effect of these monopolies upon the people and
prosperity of the country. No country in the world has been as
bountifully supplied by the Creator with all the means to make a nation
prosperous and happy as ours. It is vast in extent of territory. Its
soil is rich, and most of it new. Lying in all latitudes, it produces
fruits of every climate. The husbandman is assured of an abundant crop.
All agricultural and horticultural pursuits are rewarded with large
growths and bounteous harvests. Our shores are washed by oceans, which
afford us highways, over which we can avail ourselves of the markets of
the world; while flowing through the agricultural portions of our common
country are our great rivers, upon whose waters the produce and
manufactures of the land are transported to market. Our great lakes
furnish us an outlet for the surplus product of the great west. Our
sixty or seventy thousand miles of railroad traverse our country in all
directions, reaching from the Atlantic to the Pacific, and spreading
like a net-work from the lakes to the gulf. Our mines produce immense
yields of the precious metals, while our hills and mountains are full of
iron, coal, and lead. Petroleum flows in quantities which should add
largely to the wealth of our common country. Our timber is not excelled
by that of any growth in the world. Our lands are rich in fertility, and
poor only in price. The Creator has done for us all that could be
desired to make us prosperous and contented. Our government is, or was
intended to be, based upon the will of the people. Our constitution
recognizes no royal rulers, no lords, no titled gentry. Under it we are
all equal. They who administer the laws are selected by the people. In
contemplation of law, all are equal--all are free and independent. With
all these blessings and advantages we ought to be the happiest and most
prosperous people on the earth. Peace, plenty, and contentment should
reign supreme throughout the land. What are the facts?
Throughout the entire length and breadth of our land, mutterings and
complainings are heard. From the farmers, the mechanics, and laborers
alike, the complaint is heard, "We cannot pay our taxes and support our
families;" "Our wages will not enable us to buy the necessaries of life,
because of the large duties laid upon them;" "Our farm products will not
pay taxes, charges for transportation, and other burdens imposed upon
us, and leave us any margin;" "We had better let our lands lie idle than
to attempt to cultivate them." These and like complaints are heard from
the laboring and producing classes. Nor are their complaints without
cause. Another interest has arisen in the land--it has become
all-powerful. This interest penetrates the remotest portions of the
country. It calls upon the laborer, the operative, the mechanic, the
farmer, and all private citizens, for a division of the products of
their labor. It enters the halls of legislatures and of congress, and
demands, and not unfrequently purchases, special privileges and powers.
It visits the executive department of the government, and there secures
special favors. It stalks boldly into the courts of the country, and
_there_ procures unjust decisions in its interest. It indeed places its
own men upon these _seats of justice_, that the judiciary of the country
may not fail to support its aims. It has already obtained complete
control of the finances of the country. It has corrupted legislatures
and congressmen, until the law-making power has become a party to
schemes of robbery and plunder. By corrupt legislation and _ex parte_
judicial decisions, it has destroyed all the old republican landmarks,
overridden the provisions of the constitution, and substituted for the
government prepared for us by our forefathers an oligarchy that rules
the land and holds the people at its mercy, and their property as its
lawful booty. This great oppressor of the people is the railroad
corporations and their associates, of which we have been treating.
Railroad and other corporations, brokers, and stock-jobbers, have
obtained such complete control over the government, the people, and the
financial and commercial interests of the country, that they who depend
upon agricultural pursuits, or upon their labor, for a support, are
deprived of those God-given rights which formed the base of our
political superstructure.
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.
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.
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._
"Mr. Justice Davis delivered the opinion of the court:--
"This is a writ of error to the supreme court of the state of North
Carolina, and brings up the question whether the recent legislation of
the state, concerning the collection of taxes, is, as it affects the
plaintiff in error, in violation of that provision of the constitution
of the United States which declares that no state shall pass any law
impairing the obligation of contracts. As early as 1833, the general
assembly of North Carolina incorporated the Wilmington & Weldon railroad
company, for the purpose of constructing a railroad in the state, and
inserted a provision in the charter 'that the property of said company,
and the shares therein, shall be exempted from any public charge or tax
whatsoever.' It has been so often decided by this court that a charter
of incorporation granted by a state creates a contract between the state
and the corporators, which the state cannot violate, that it would be a
work of supererogation to repeat the reasons on which the argument is
founded. It is true that when a corporation claims an exemption from
taxation, it must show that the power to tax has been clearly
relinquished by the state, and if there be a reasonable doubt about this
having been done, that doubt must be solved in favor of the state. (The
Binghampton Bridge Case, 3 Wallace.) If, however, the contract is plain
and unambiguous, and the meaning of the parties to it can be clearly
ascertained, it is the duty of the court to give effect to it, the same
as if it were a contract between private persons, without regard to its
supposed injurious effects upon the public interests.
"It may be conceded that it were better for the interests of the state
that the tax-paying power, which is one of the highest and most
important attributes of sovereignty, should on no occasion be
surrendered. In the nature of things, the necessities of the government
cannot always be foreseen, and in the changes of time the ability to
raise revenue from every species of property may be of vital importance
to the state, but the courts of the country are not the proper tribunals
to apply the corrective to improvident legislation of this character. If
there be no constitutional restraint on the action of the legislature on
this subject, there is no remedy, except through the influence of a wise
public sentiment, reaching and controlling the conduct of the law-making
power.
"There is no difficulty whatever in this case. The general assembly of
North Carolina told the Wilmington & Weldon railroad company, in
language which no one can misunderstand, that if they would complete the
work of internal improvement for which they were incorporated, their
property and the shares of their stockholders should be forever exempt
from taxation. This is not denied, but it is contended that the
subsequent legislation does not impair the obligation of the contract,
and this presents the only question in the case. The taxes imposed are
upon the franchise and rolling stock of the company, and upon lots of
land appurtenant to and forming part of the property of the company, and
necessary to be used in the successful operation of its business. It
certainly requires no argument to show that a railroad corporation
cannot perform the functions for which it was created without owning
rolling stock, and a limited quantity of real estate, and that these are
embraced in the general term property. Property is a word of large
import, and, in its application to this company, included all the real
and personal estate required by it for the successful prosecution of its
business. If it had appeared that the company had acquired either real
or personal estate beyond its legitimate wants, it is very clear that
such acquisitions would not be within the protection of the contract.
But no such case has arisen, and we are only called upon to decide upon
the case made by the record, which shows plainly enough that the company
has not undertaken to abuse the favor of the legislature.
"It is insisted, however, that the tax on the franchise is something
entirely distinct from the property of the corporation, and that the
legislature, therefore, was not inhibited from taxing it. This position
is equally unsound with the others taken in this case. Nothing is better
settled than that the franchise of a private corporation--which, in its
application to a railroad, is the privilege of running it and taking
fare and freight--is property, and of the most valuable kind, as it
cannot be taken for public use even, without compensation. (Redfield on
Railways, p. 129, sec. 70.) It is true it is not the same sort of
property as the rolling stock, road-bed, and depot grounds, but it is
equally with them covered by the general term, 'the property of the
company,' and, therefore, equally within the protection of the charter.
"It is needless to argue the question further. It is clear that the
legislation in controversy did impair the obligation of the contract
which the general assembly of North Carolina made with the plaintiff in
error, and it follows that the judgment of the supreme court must be
reversed. It is so ordered, and the cause is remanded for further
proceedings, in conformity with this opinion.
"D. W. MIDDLETON,
"C. S. C. U. S."
When the question of the right to levy taxes upon the people, for the
purpose of building railroads, is before the courts, they decide that
such right exists: First, because the right of eminent domain has been
conferred upon the company; and, second, because the railroads are
public highways; so, that, in every phase the question assumes, the
decisions of the courts are in favor of these corporations, and adverse
to the people.
Notwithstanding the fact that the decisions of the courts fix the status
of the railroad corporations as public in their nature, the real fact
remains that railroads are owned and controlled by private parties, and
it is a mere fiction of law to call them public; and while we accept the
decisions as law, the facts are unchanged. The effect of the legislation
to which we have referred is apparent to all. It has strengthened
corporations, enlarged their powers, and constantly encroaches upon the
rights of the people. So great has this evil become that almost the
entire population of the country, not under the control of or interested
in railroad corporations, are demanding a change of legislation, and
relief from the oppressions heaped upon them by these monopolies.