Autobiography of Charles Clinton Nourse Part 7

By what means he has induced eminent counsel, backed by the active influence of the _Iowa State Register_, to prosecute this case against Mr. Kidd, remains a mystery. To the oft-repeated inquiries of members of the alliance for information on this subject his answers have been evasive and entirely unsatisfactory. Judge Cole in his letter to Mr. Kidd mentions that certain members of the export a.s.sociation were being damaged "to the extent of thousands of dollars daily" by the course pursued by the International Distillery. "Thousands of dollars daily" is a large amount of money, and a very grave apprehension exists in the minds of many of the temperance men of this community that these "certain other individuals" are not idle spectators in this contest. When or how Judge Cole and Mr. Runnells or the _Iowa State Register_ came into the case I do not know--I only know that they "got there."

"... he has no wings at all, But he gets there all the same."

Judge Cole and Mr. Runnells are also defending Hurlbut, Hess & Co., and the six thousand dollars of intoxicating liquors condemned by the jury in that case. They are also attorneys for Rowe, the man who shot down Constable Logan. No one, I believe, has questioned their right to act as counsel for the defense in these matters or even suggested the impropriety of their employment. I certainly would not do so. The _Iowa State Register_ has besought the public to suspend any judgment as to the guilt or innocence of Rowe, but to await the judicial investigation of the case. This is certainly commendable forbearance, but why the same spirit of fair play should not be manifested toward Mr. Kidd pending the judicial determination of his rights, I cannot understand. Does it make any difference because Mr. Runnells is defending in the one case and prosecuting in the other? Surely a man who has invested two hundred and fifty thousand dollars in manufacturing in our city, by the advice and encouragement of the _Register_, is ent.i.tled to as much consideration as the man who takes the life of a public officer whilst in the discharge of an official duty. The statement that the State Temperance Alliance has ever favored or endorsed the prosecution of Mr. Kidd is wholly without foundation.

I have now answered very fully all of the inquiries in your letter save, perhaps, the last, and that is as to the relation and effect of the present suit to the cause of prohibition in Iowa. Permit me to say to you, and through you to the true friends of prohibition in this state, that we have now upon our statute books a most excellent law, that is every day gaining favor with the people, and that has survived all open warfare upon it. In my humble judgment the most we now have to fear is not the open opposition of its enemies, but the follies and indiscretions of its friends. As I have already conclusively shown in this communication, we procured the enactment of this law by a.s.suring the people of this state that we did not intend to interfere with the manufacture of alcohol or intoxicating liquors for medicinal or mechanical purposes, nor as an article of commerce for export. The question is, have we anything to gain by duplicity and insincerity, and by now claiming for this law what we did not claim for it when we procured its enactment by the general a.s.sembly? Above all things, have we, as prohibitionists, anything to gain by entering into an alliance with the distillers of other states who are making war upon a productive industry in our own state, for the sole purpose of promoting their own pecuniary interests in destroying compet.i.tion in their business? Have we anything to gain by turning aside from the great work that we have undertaken of destroying the saloon as a place of resort where our young men are taught the habit of intoxication, and engaging in the Utopian scheme of regulating the supply of alcohol in the markets of the world, the use of which it is impossible for us to control after it pa.s.ses beyond the jurisdiction of our laws?

There is another very grave and important question that the true friends of prohibition in Iowa should stop to consider. The courts of the United States have more than intimated that if the prohibitory law of Iowa does in fact destroy the value of property built for a use which was lawful at the time of its erection, that such a law is a violation of the const.i.tution of the United States, unless it also makes provision for compensation to the owner.

This International Distillery was built and in full operation before the amendment of 1884 was enacted. By virtue of its provisions a limitation only, in my humble judgment, was placed upon the uses for which alcohol might be sold within the state. The answer to the position that our law is unconst.i.tutional because it affects the value of this property is, that it does not prevent the manufacture of alcohol for export or for sale within the state for lawful purposes. But if we propose to destroy the value of this property by this new interpretation of our statute, and say that it is our purpose and intent to prevent its use for the manufacture of alcohol for export, then may we not seriously apprehend that our law will be held unconst.i.tutional, and may we not, in attempting too much, lose all? The fable of the dog crossing the log over the stream, that dropped the meat from his mouth in order that he might grasp the shadow, I would recommend to the careful study and perusal of some of our pretended friends.

But there is still another political phase of this question that we ought to carefully consider. Heretofore we have put the opponents of this law upon the necessity of defending the saloon as an inst.i.tution; we have made the suppression of these places of resort the war-cry of our campaign. Is it the part of wisdom to change this issue and a.s.sume the affirmative of the proposition that the good order and peace of society requires that we should s.h.i.+p our corn to Peoria to be manufactured into alcohol rather than have it manufactured in our own state, either for medicinal or mechanical purposes or for export? For one I fail to see any wisdom in such a proceeding. I am not prepared to join in or acquiesce in such a folly. In accepting a retainer from Mr. Kidd in the case now pending in the supreme court I did so because it was my plain duty, as a lawyer, to defend the legal rights as I believe them to be, of a man whose property was unjustly and illegally a.s.sailed. I was not employed in the case until after Judge Conrad's decision. That the temperance people of Iowa will find any fault with me for presenting to the supreme court the question of law involved in this appeal I cannot well believe. How will these questions be answered?

_First._ Do they ask or desire that the property of any citizen shall be destroyed and condemned without a fair and full trial before the appellate court?

_Second._ Does not a fair trial also involve the right of the citizen to have the aid of a counsel?

_Third._ If the defendant is to have the aid of counsel, can my employment be any more objectionable than the employment of one who is an enemy of the law?

_Fourth._ Is it not true that the view of the statute that I propose to present to the court, is the view that we nearly all _pretended_ to have when we procured the pa.s.sage of the law?

The decision of Judge Conrad, though made no doubt with the utmost sincerity and good faith on his part, I regard as a mistake, and an unfortunate one for the cause of prohibition. In the interview published by the _Register_ I said that neither the decisions of courts nor the conduct of lawyers or newspapers would defeat the ultimate triumph of prohibition. I still have faith in that proposition. If I have erred, or if the courts shall decide too much or too little, yet legal prohibition as a principle is right, and I believe will ultimately triumph. I do not believe the present prosecution of Mr. Kidd is justified by the law or the facts, and injustice and illegal prosecutions are not in my judgment the means of success in a good cause. Whatever personal malice may originate of misrepresentation or abuse of me in this matter, gives me no concern. I am used to this kind of thing and have never turned aside from my professional duty because of attempted newspaper intimidations. I am now in the thirty-sixth year of my practice in Iowa, and can afford, I think, to perform a plain professional duty. Asking pardon for the extent of this communication, which I have necessarily made somewhat in detail in order that your questions might be fully answered, I remain as I have ever been, an earnest friend and co-worker in the cause of prohibition, and

Most truly your humble servant,

C. C. NOURSE

The case of Pearson & Loughran against the International Distillery and J. S. Kidd was submitted to the supreme court upon oral and printed argument at the June term, 1887.

The republican state convention that was to nominate a supreme judge met at Des Moines, August 24th of that year. The supreme court at that time consisted of W. H. Seevers, Joseph Reed, Jos. M. Beck, James H.

Rothrock, and Austin Adams. The latter named judge's term expired the first of January, 1888, and either his renomination or the nomination of some one in lieu of him came before the republican convention to be held in August. J. S. Clarkson, the editor of the _Register_, and Mr. John Runnells, Esquire, the attorney of record nominally of Pearson and Loughran, but in fact acting for the whisky trust; to-wit, the Western Export a.s.sociation, secured their nomination as delegates to the republican state convention. During the sitting of the court and before any opinion was announced it was well understood in the community that Judges Seevers and Reed had written an opinion reversing the decision of Judge Conrad, and that Judges Beck and Rothrock had written an opinion affirming the case, and that the fifth judge; to-wit, Judge Adams, had not yet officially concurred in either opinion and that the result of the case would rest with Judge Adams as he might concur with one or the other of these opinions. J. S. Clarkson and Mr.

John Runnells, just prior to the meeting of the state convention, asked for a private interview with Judge Adams, which was accorded them. Just what was said or done in that interview and what subjects were discussed between these gentlemen and Judge Adams I do not know. It is possible they talked about the weather and that the question of the renomination of Judge Adams, and his views and opinions or inclinations with reference to the distillery, may not have been mentioned between them. Very considerable opposition to Judge Adams's renomination had developed throughout the state, princ.i.p.ally upon the ground of his alleged favoritism to the railroad interests, and his renomination was in great doubt; indeed, when the convention met Judge Adams failed to get the nomination, and his friends, Clarkson and Runnells, only succeeded in controlling thirteen votes in his favor in the Polk county delegation. After the convention and the defeat of Judge Adams, Mr.

Clarkson wrote a very mournful howl over Judge Adams's defeat, exceedingly regretting the result. Still there was no opinion filed in the distillery case until the night of the 10th day of September following, when Judge Adams's name appears as concurring in the opinion written by Judge Beck. These two opinions are very remarkable. The opinion written by Judge Beck and concurred in by Rothrock and Adams a.s.sumes the extraordinary position that inasmuch as the law in expressed terms permitted the manufacture of alcohol within the state for medicinal, mechanical, and sacramental purposes, and did not in terms provide for the manufacture within the state for export, therefore it was prohibited by the law.

The opinion of the minority of the court written by Judge Seevers, and concurred in by Judge Reed, a.s.sumes the position that inasmuch as the manufacture for the purpose of export was not prohibited, therefore, it was lawful. The opinion of the majority of the court, it was claimed, was contrary to the language and decision of our supreme court in the cases theretofore decided by the court in Niles v. Fries, 35 Iowa, 41, and Becker v. Betten, 39 Iowa, 668. In the former case in 35 Iowa, Judge Beck himself in delivering the opinion of the court uses the following language: "Intoxicating liquors in the possession of a citizen who holds them for the purpose of selling them lawfully, _within the state_, or for transporting them without the state for lawful traffic, are not, under the statute, subject to seizure." Judge Beck gets rid of the force and effect of his prior decision by saying that his language was "obiter dicta." When, however, the opinion comes to wrestle with the question as to confining the police power of the state, to matters that concern the good order of society and the health of the people of the state, but did not extend to the inhabitants of the other states of the Union, Judge Beck gets rid of this suggestion by claiming that there is a sort of comity between the states by which the legislature of one state ought to consider the well being and happiness of the people of the other states. This suggestion is rather fanciful than otherwise, particularly as applied to this case, for that the other states, particularly New York to which this alcohol was exported, have never undertaken to control either the manufacture, sale, or use of alcoholic spirits. In the interpretation of all statutes and in case of doubt it is a well recognized rule of interpretation that the court must consider what evil it was existing prior to the enactment of the statute that the statute was intended to correct or remedy. The idea that the people of Iowa were seized with a desire to limit the manufacture of alcohol in order to prevent it being taken to New York was simply Utopian and had no real existence. The real parties that were attempting to limit the manufacture of alcohol in Iowa for export was the whisky trust that desired to keep up the price of the article in the New York market, and this fact was well known to the supreme court and to the three judges that concurred in the opinion of the majority. Judge Beck's opinion, aside from the question of law involved, was a very excellent temperance speech against the use of alcohol as a beverage, but had no relation whatever to the case. I write thus freely upon this subject for the reason that Mr. Kauffman and myself had given a written opinion as to the reasonable construction of this law, relying upon the former decisions of our own supreme court and the language of Judge Beck himself. Mr.

Kidd had made his investment in good faith in a manufacturing industry, manufacturing an article that was recognized as useful for many purposes, both as a medicine and for mechanical purposes, and there was nothing in the article itself to determine the use for which it was intended when it was manufactured. Whilst it might be used for the purpose of making a beverage destructive to human life and happiness, yet, so far as the law was concerned, it was only by restricting the sale of it for the destructive uses to which it might be applied that any remedy could be made effectual.

The effect of this decision politically, as a means of destroying the faith of the people in a law that the legislature had wisely pa.s.sed, was soon made manifest. There was at this time in the city of Des Moines a young lawyer, then attorney for the Chicago and Rock Island Railroad Company, ambitious for political preferment, by the name of A.

B. c.u.mmins. His partner in business was Mr. Carroll Wright, the son of ex-Chief Justice Wright who was attorney for Koehler & Lange in securing the opinion of the supreme court that destroyed legally the const.i.tutional amendment. A meeting of anti-prohibition republicans was called and held at the city council chamber in the city of Des Moines about August 25, 1887, in which certain resolutions were adopted denouncing the prohibitory law and favoring local option and licensing of the sale of intoxicating liquors. The resolutions of that convention were signed by ninety-two nominal republicans, and they nominated as their candidates for the legislature A. B. c.u.mmins and Adam Baker. Mr.

c.u.mmins accepted the nomination in a letter dated August 25, 1887, writing a letter joining in the denunciations against the prohibitory law of Iowa and the fraudulent practices of the constables who had taken advantage of the law to make profit to their own use.

In addition to this work of the enemies of prohibition in Iowa, performed as its pretended friends and advocates, there were several other causes at work to weaken the confidence of the people in the statute. Two constables of the city of Des Moines set about to make money out of the enforcement of the law. They entered into a conspiracy with the persons who were selling intoxicating liquors, inducing them to put one or two bottles of liquor in a convenient place in their establishments, and then filing information under the law against the place, procuring a search warrant, searching the place and finding these few bottles, prosecuting and destroying the two bottles, no one appearing to claim the same, and then having the costs of the proceedings all taxed up against the county. These bills ran up to hundreds of dollars, and the enemies of the law were loud in their denunciations of the statute, but had little to say against the criminal practices of those whose duty it was to observe and enforce the law.

Mr. c.u.mmins made a vigorous canva.s.s of the county, receiving in addition to the nomination of these so-called republicans, the nomination of the democratic convention, and by the aid of the democratic party and the whisky interests of the county he succeeded in being elected a member of the next general a.s.sembly under his oft-repeated pledge during the canva.s.s to secure if possible the repeal of the prohibitory law, and the enactment of the license law.

With all these influences, however, operating against the law, the next general a.s.sembly made no serious attempt to repeal the act. By an act approved January 29, 1857, the legislature had attempted to establish what was known as local option in Iowa. The act of 1857 provided for the license and sale of intoxicating liquors in any county of the state where the people by majority vote of the electors adopted the same, and by such adoption that the provisions of the act of 1854 would stand repealed as to that county. Our supreme court held this act of 1857 to be unconst.i.tutional for the reason that our const.i.tution required that all laws should be of uniform operation, and upon this subject of uniformity the court uses the following language:

The sixth section of the bill of rights declares, that "all acts of a general nature shall have a uniform operation." Const.i.tution, Article I. Recognizing as we do the distinction between laws of a general nature and those of a special or local character, we understand by the "operation" of a law is meant its practical working and effect. It is not, in our opinion, a sufficient compliance with the requirements of the const.i.tution, that under the provisions of the act of the 29th of January, 1857, the question of licensing the sale of spirituous liquors is to be submitted to the vote of the qualified electors of all the counties of the state. Something more is contemplated by the const.i.tution, in the words "uniform operation." We must look further, and to the effect of such submission to the vote of the people, and to the consequences to result from the adoption of the law. The prohibitory liquor law is a law of a general nature, and its operation must be uniform throughout the state. Can we say that such is the case, if it remains in full force in one county, while it is repealed in others by a vote of the people, and a license law adopted in its stead? And is the act of 1857, if the effect of it is to bring about this want of uniformity in the operation of a law of a general nature, to be deemed const.i.tutional and valid? We think not.

The vote authorized to be taken upon the adoption of the act, while it is objectionable in a const.i.tutional point of view, as transferring the law-making powers from the legislature to the people, is further objectionable in view of the possible, not to say the probable, result of such vote. We cannot undertake to determine, nor can it, under any circ.u.mstances, be foreseen, that the result of the vote will be uniform in all the counties of the state, either in favor of license or against it. In some of the counties the vote may not be taken; in others, the majority may be against license; while in others, the majority may be in its favor.

Unanimity of sentiment, either one way or the other, can hardly be reckoned upon. These views, we think, add weight to the argument against the const.i.tutionality of submitting the act to a vote of the people. We do not, however, base wholly upon them our conclusion against the validity of the act in question, nor upon the fact that the result of the vote upon the question of adopting it may not be uniform throughout the state. Upon this latter branch of the subject, the members of the court are not unanimous in opinion.

The majority of the court are of the opinion, that while the act must without doubt be deemed to be a law of a general nature, it is liable to objection, as prescribing no uniform rule of civil conduct to the people of the state, and as not providing of itself for its uniform operation. The legislative power must command. It must not leave to the people the choice to obey or not to obey its requirements. It is not a law enacted according to the requirements of the const.i.tution, if there is left to the action and choice of the people upon whom it is to operate the determination of a question which may result in a want of uniformity in the operation of a law of a general nature.

I shall take occasion to refer to this decision of the supreme court hereafter when I come to notice the pa.s.sage by the legislature of the miserable subterfuge now known as the "mulct law."

CHAPTER X

REGULATION OF FREIGHT AND Pa.s.sENGER TARIFFS

Leaving the subject of temperance and prohibition for the present, the next important question of a public nature in which I became interested professionally was the question of the regulation of freight and pa.s.senger tariffs by the general a.s.sembly of the state. The general a.s.sembly of 1888 enacted a law providing for the election of three Railroad Commissioners, and gave them authority to prepare schedules of rates that might be charged by the railroads of the state for the transportation of freight and pa.s.sengers.

[Ill.u.s.tration: _Charles Clinton Nourse_ From Photograph by Pearson.

Des Moines]

Under this statute the people elected as Commissioners Frank T.

Campbell, Peter A. Dey, and Spencer Smith. In pursuance of the authority of the statute these Commissioners proceeded to formulate schedules of rates to be charged by the several railroads of the state.

The law required the Commissioners to publish for three successive weeks in certain newspapers the date at which these rates should take effect. Before the third publication was made the attorneys of the Northwestern Railroad Company telegraphed to the Railroad Commissioners requesting a change of the date of the taking effect of their proposed schedule of rates, and received from the secretary of the board, under the instructions of Mr. Dey, an answer that the time of the taking effect would be changed accordingly. A new advertis.e.m.e.nt was prepared and published, but before the three insertions were completed three of the princ.i.p.al railroad companies operating in the state; to-wit, the Northwestern, Chicago, Burlington & Quincy, and the Milwaukee & St.

Paul filed their pet.i.tions with the circuit court of the United States for an injunction against the further publication of the notice, on the ground that the rates fixed by the Railroad Commissioners were not _compensatory_. The hearing of this application was had before Justice Brewer at his residence in Leavenworth, Kansas. I was employed by the Railroad Commissioners to appear in their behalf, and Mr. James T. Lain, of Davenport, was employed by certain s.h.i.+ppers of that place to appear with me in the case. We argued the case before Justice Brewer, and he granted the injunction on the 28th of July, 1888. This injunction in large part was based upon the evidence of the complainants' general manager to the effect that the Commissioners had adopted a cla.s.sification known as the western cla.s.sification, which, as compared with the cla.s.sification known as the Illinois cla.s.sification made a difference against the railroads of fifty per cent. Subsequent to the granting of these injunctions, upon complaint of certain s.h.i.+ppers the Railroad Commissioners, after a hearing before them, proceeded to formulate new schedules, and in pursuance of what appeared to be the princ.i.p.al objection at the former hearing they adopted a cla.s.sification more favorable to the railroad companies known as the Illinois cla.s.sification. Immediately upon this action of the Railroad Commissioners the railroad companies filed a supplemental bill asking a further injunction to restrain the Railroad Commissioners from putting into effect these new rates with the new cla.s.sification. Mr. Campbell of the Railroad Commissioners immediately waited on me asking my further appearance in the cause to argue the question of a further injunction as against their new schedules and cla.s.sification. He expressed a doubt as to whether or not it was worth our efforts to defeat this new application as he was disposed to think that Judge Brewer would grant whatever the railroad companies might ask in this behalf. I told him that he had a duty to perform as a public officer, in my opinion, and if the Commissioners did their duty in making the proper resistance to this new application, the responsibility would rest with Judge Brewer if he failed in his duty. We accordingly made the necessary preparation for a hearing, which was finally had at St.

Paul, Minnesota. In the argument of this case the attorneys for the three railroads applying for the injunction made a very formidable array of distinguished counsel embracing the ablest lawyers of Chicago and Milwaukee. A. J. Baker was then Attorney General of the state of Iowa and nominally appeared with me for the Commissioners, but gave me no a.s.sistance whatever. We had for an audience in the argument of the case many leading men of Minnesota, members of the State Grange of that state, which a.s.sociation was then in session at St. Paul. I took into the court-room a blackboard that I extemporized for the occasion and taking several copies of the official reports of the railroads in question, I put one copy in the hands of Justice Brewer, holding another copy in my hand and putting the figures upon the blackboard, showing the earnings of these railroads and what they were pleased to call their fixed charges, and demonstrating beyond question that the complaints made of the proposed railroad rates were without foundation.

The same person who had made an affidavit in regard to the difference between the Illinois and the western cla.s.sification had made a new affidavit stating that there was an error in his former computation. I criticised with some severity the reliability of the affidavits in which mistakes occurred according to the convenience and exigencies of this litigation. I had not much confidence in the result, however, but I felt quite complimented when a number of the leading men of the Minnesota Grange, who were present at the argument, made me a complimentary visit at the hotel that evening. The attorney for the railroad company who was expected to make the closing argument in the case complained that he did not feel very well and only spoke about fifteen or twenty minutes in a general way, without going into the facts or figures in the case. My supposed a.s.sistant, the Attorney General of the state of Iowa, took no part in the argument, and on my way home that night I learned that he had been in conference with Mr.

Stickney of the Chicago Great Western Railroad Company, and had made an arrangement with that gentleman for employment as attorney for that corporation, to take effect at the close of his then official term which was to occur in a few months. On the 2nd day of the ensuing February, 1889, Justice Brewer filed in the circuit court his opinion refusing the injunction on the supplemental bill and entering an order dissolving the injunctions theretofore granted, at the cost of the complainants. The railroad companies made no further fight against the action of the Railroad Commissioners but acquiesced therein, and found the earnings of their several roads "compensatory."

Concurrent with this proceeding on the part of the Northwestern Railroad Company and the Chicago, Burlington & Quincy, and Milwaukee & St. Paul, the Chicago, Rock Island & Pacific Railroad Company and the Burlington, Cedar Rapids & Northern applied to and obtained from Judge Fairall, of Iowa City, district judge of Johnson county, an injunction against the Railroad Commissioners to the same effect as that issued by Justice Brewer. I appeared with Mr. Lain before the district court and argued a motion to dissolve this injunction before Judge Fairall, which was refused, and from his order refusing to dissolve the injunction we at once took an appeal to the supreme court of Iowa. This appeal was heard and submitted to the supreme court by both printed and oral argument, but after the action of Justice Brewer upon the supplemental bill in the federal court, the attorneys for the Chicago, Rock Island & Pacific Railroad Company and the Burlington, Cedar Rapids & Northern dismissed their suit in the district court of Johnson county, and then applied to the supreme court for an order dismissing the appeal in that court. We resisted this application, but the court held that as the original suit was dismissed the injunction itself necessarily was dissolved, and as the appeal was only from an interlocutory order, the court had no occasion to deliver an opinion upon the merits of the controversy. The opinion of the court permitting these parties to dismiss their suit in this manner will be found in 76th Iowa, 278.

Mr. A. B. c.u.mmins, since Governor of the state of Iowa, has lately been posing as the original friend of the people in this fight against railroad injustice. It would be well to state here that I do not know when he became a convert to the importance of regulating the action of railroads in justice to the people, but as the foregoing was the first great contest we had in Iowa on this subject, I give here a speech delivered by that gentleman as late as December 22, 1891, at a banquet of the Railroad Employees' Club, as follows:

It is the railroad, it is the spirit that has moved and stimulated that property which has made it possible to people in the valley of the Mississippi, which has made it possible to create within the limits of the United States a greater wealth than has any other nation on the face of the earth. I speak of the transportation industry as limited to railways, and so limited, it is instructive to reflect that the railways of the earth are now of the value of something near $33,000,000,000, an appalling sum that no human mind can appreciate, save when compared with some other species of property. The railways of the earth, without reckoning either "wind or water," are equal to one-tenth of all the property of the world.

The railways represent substantially one-third of all the invested capital of mankind; and if all the currency of the civilized world and its gold and all its silver and its currency in paper; all its precious stones, its diamonds and rubies were heaped together in such places as would contain them, they would still represent less than one-half of the railway property of the world. The comparisons indicate in what a stupendous enterprise you are now engaged. I have no disposition, whatever, to convert a single sentiment suggested by my brother Wallace, I do not recognize a conflict between the farmers of the nation or the state of Iowa and the railways. No fair man ought to recognize any such conflict, but THAT THE STATE OF IOWA OR THAT HER ORGANIZED TRIBUNALS HAVE DONE INJUSTICE TO THE RAILWAYS AND THROUGH THEM TO THE RAILWAY EMPLOYEES, NO FAIR MINDED MAN CAN DISPUTE. These systems grew up; they most naturally fall into the hands best adapted to organize and handle them, and I would be the last man in the world to claim that, as they grew up, as they were systemized and organized, that wrong was not done here or wrong was not done there. I know too well that there were grievous complaints justly made against the management of railways not only in this state, but in many others.

But I beg the people of Iowa to remember, and the railway employees to remember that, although railway managers and railway presidents may sometimes be unjust, that affords no excuse whatever for the sovereign power of the state of Iowa in being unjust. The wrongs of capital produce, it is said, the anarchist--so it is with respect to the wrongs perpetrated by the railway companies, the railway organizations. They created a prejudice which, in its impetus, has carried the attack made upon the railway property far beyond what is justified by the sober second thought and judgment of those who inst.i.tuted it, and far beyond the limits which the fair-minded people of Iowa now justify.

The const.i.tution of the United States in express terms gives to the congress of the United States the power to regulate commerce between the states and with foreign nations. In pursuance of this power and duty imposed by the const.i.tution, the congress of the United States in February, 1887, enacted a statute defining the duties and obligations of common carriers engaged in the transportation of freight and pa.s.sengers between the states, and by express terms gave to the people a right of action in the federal courts against any railroad company violating its duty as defined by the act. This right of action was by civil suit for such damages as inured to the party by reason of a wrongful act of a common carrier.

The Chicago & Northwestern Railroad Company had a main line of road extending from Chicago, in the state of Illinois, located through the state of Iowa to Council Bluffs on the Missouri river. From the main line of this road at Carroll, in Carroll county, this company had constructed a number of branches running northwest from that point, known as the Sac City Branch and the Sioux City and Mapleton Branch.

During the year 1890 we brought a number of suits against the Chicago & Northwestern Railroad Company for unjust discrimination and overcharge for s.h.i.+pments of corn and oats from various points on these branch roads to Chicago, and also a number of suits for s.h.i.+pments made at Carroll and points west on the main line of its road. The cases for s.h.i.+pments on the branch lines of its road were settled by the company, and we collected for our clients about $75,000. Suits for s.h.i.+pments on the main line of its road were contested by the railroad company. We tried two of these cases before the United States circuit court at Des Moines, Judge s.h.i.+ras presiding, and obtained verdicts and judgments in the causes. The railroad company took a writ of error to the United States court of appeals, and these causes were submitted to that court upon both oral and printed arguments at the May term, 1892, of that court, sitting at St. Louis, Missouri. After the causes had been so submitted, Judge N. M. Hubbard who had made the argument in behalf of the railroad company, left St. Louis and went to Chicago for consultation with the general solicitor of that road, Mr. Goudy. After a few days, the court of appeals still being in session at St. Louis, Judge Hubbard appeared before the court, without any notice to me, and had the order submitting the causes set aside and dismissed his appeal or writ of error. After a few weeks had elapsed he sued out another writ of error in the same cases to the United States court of appeals, which, according to the arrangements for the sitting of that court, would be held at St. Paul in the state of Minnesota, and Justice Brewer of the supreme court of the United States would be in attendance as the presiding judge of that court.

It would be too long and too tedious a story to enter into particulars in regard to these suits, and the questions of fact and law involved in them. The unusual and unwarranted conduct of the attorneys for the Northwestern road in getting these cases before Justice Brewer for his decision and determination was by no means a compliment to the judge for whom they manifested such a strong partiality. Neither would I indulge in any surmise as to the grounds for their partiality. It is sufficient to say they were not disappointed in the result and that Judge Brewer reversed both of these judgments.

I afterward determined if possible to obtain the opinion of the supreme court of the United States upon the questions of law involved in these cases. I accordingly brought another suit for another client; to-wit, one E. M. Parsons, in a case involving an amount sufficient to ent.i.tle me to an appeal directly to the supreme court of the United States, having previously attempted to get the supreme court of the United States to review the decision of Justice Brewer in the former cases upon writs of certiorari, the same being denied by the supreme court.

Judge s.h.i.+ras, presiding in the circuit court at Des Moines, in view of the action of the circuit court of appeals in the other cases, sustained a demurrer pro forma to my amended pet.i.tion filed in the Parsons case, and it was upon demurrer admitting the averments and allegations in this pet.i.tion that the case was heard before the supreme court of the United States. Justice Brewer delivered the opinion in the Parsons case in which he held that the statements of the pet.i.tion did not ent.i.tle the plaintiff to recovery. The opinion discloses the fact that Judge Brewer was somewhat offended at my attempt to have the supreme court pa.s.s upon the questions of law involved in the cases that he had disposed of as the presiding judge in the court or appeals. I had supposed that a judge of the supreme court of the United States would regard it rather as a compliment than otherwise to his sense of fairness to believe that he was capable of impartially and without prejudice, sitting with his brother judges, to review one of his own decisions, but the opinion shows plainly that I overestimated that distinguished jurist, and that he thought more of his infallibility than I did of his impartiality. This opinion of the court will be found in the case of Parsons vs. The Chicago & Northwestern Railroad Company in volume 167, _United States Reports_, 324. The court in this opinion a.s.serts the very extraordinary position that the Interstate Commerce Law in providing a remedy whereby a s.h.i.+pper of grain might recover his actual damages for a refusal of the railroad company to comply with the law which was enacted for his protection, was in the nature of a penal statute, and that the pet.i.tion of the plaintiff in such a case must expressly aver and negative the existence of any possible excuse for the wrong committed by the railroad company.

One great benefit to the public of these suits against the Chicago & Northwestern Railroad Company was to arouse public attention to the necessity of further legislation by congress in order to carry out the design of the original act for the protection of the public. Congress had already by amendment to the act provided for penalties against any parties violating its provisions, but the suits that I brought were simply for actual damages and injuries, and not for any penalty whatever under the law. The penal clause in the act as amended March 2, 1889, reads as follows: "That any common carrier subject to the provisions of this act, or, wherever such common carrier is a corporation, any director or other officer thereof, or any receiver, trustee, lessee, agent, or person, acting for or employed by such corporation, who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willfully suffer or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this act required to be done, or shall cause or willfully suffer or permit any act, matter or thing so directed or required by this act to be done not to be so done, or shall aid or abet in such omission or failure, or shall be guilty of any infraction of this act, or shall aid or abet therein, shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof in any district court of the United States within the jurisdiction of which such offense was committed, be subject to a fine of not to exceed five thousand dollars for each offense: Provided, that if the offense for which any person shall be convicted as aforesaid shall be an unlawful discrimination in rates, fares, charges, for transportation of pa.s.sengers or property, such person shall, in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court."

The charge of Judge s.h.i.+ras to the jury in the two cases tried before the United States circuit court, before referred to, will be found in full in volume 48 of the _Federal Reporter_, commencing on page 50, and the opinion of Justice Brewer, presiding in the circuit court of appeals, before referred to, in which he reverses these judgments, will be found in the 10 U.S. court of appeals on page 430.

It may be interesting to any law student and to anyone who desires to determine where right and justice should have prevailed, to compare the charge of Judge s.h.i.+ras to the jury and the principles of law recognized by Judge s.h.i.+ras, with the opinion of Justice Brewer. It is not within my purpose to re-argue any of my causes in this paper.