The sixth section of the bill of rights declares, that "all acts of a general nature shall have a uniform operation." Constitution, 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 constitution, 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 constitution, 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 Can we say that such is the case, if it remains in full force in one county, while it is repealed in others by a vote of the people, and a license law adopted in its stead?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 constitutional and valid? We think not.The vote authorized to be taken upon the adoption of the act, while it is objectionable in a constitutional 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 circumstances, 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 constitutionality 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 constitution, 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.
The sixth section of the bill of rights declares, that "all acts of a general nature shall have a uniform operation." Constitution, 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 constitution, 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 constitution, 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 constitutional and valid? We think not.
The vote authorized to be taken upon the adoption of the act, while it is objectionable in a constitutional 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 circumstances, 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 constitutionality 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 constitution, 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 passage by the legislature of the miserable subterfuge now known as the "mulct law."
CHAPTER X
Regulation of Freight and Passenger 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 passenger tariffs by the general assembly of the state. The general assembly 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 passengers.
Charles Clinton Nourse
Charles Clinton NourseFrom 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 advertisement was prepared and published, but before the three insertions were completed three of the principal railroad companies operating in the state; to-wit, the Northwestern, Chicago, Burlington & Quincy, and the Milwaukee & St. Paul filed their petitions 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 notcompensatory. 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 shippers 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 classification known as the western classification, which, as compared with the classification known as the Illinois classification made a difference against the railroads of fifty per cent. Subsequent to the granting of these injunctions, upon complaint of certain shippers the Railroad Commissioners, after a hearing before them, proceeded to formulate new schedules, and in pursuance of what appeared to be the principal objection at the former hearing they adopted a classification more favorable to the railroad companies known as the Illinois classification. 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 classification. 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 classification. 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 assistance 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 association 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 classification 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 assistant, 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. Cummins, 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 instituted it, and far beyond the limits which the fair-minded people of Iowa now justify.
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 instituted it, and far beyond the limits which the fair-minded people of Iowa now justify.
The constitution 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 constitution, 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 passengers 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 shipments of corn and oats from various points on these branch roads to Chicago, and also a number of suits for shipments made at Carroll and points west on the main line of its road. The cases for shipments on the branch lines of its road were settled by the company, and we collected for our clients about $75,000. Suits for shipments 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 Shiras 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 entitle 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 Shiras, 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 petition filed in the Parsons case, and it was upon demurrer admitting the averments and allegations in this petition 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 petition did not entitle the plaintiff to recovery. The opinion discloses the fact that Judge Brewer was somewhat offended at my attempt to have the supreme court pass 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 asserts the very extraordinary position that the Interstate Commerce Law in providing a remedy whereby a shipper 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 petition 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 passengers 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 Shiras 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 theFederal 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 Shiras to the jury and the principles of law recognized by Judge Shiras, with the opinion of Justice Brewer. It is not within my purpose to re-argue any of my causes in this paper.
It is sufficient to say that the supreme court held the provisions of the inter-state commerce law, that gave to shippers a remedy for unjust discrimination by a civil suit for damages, to be a penal statute upon the ground that if the railroad company discriminated by charging one person ten dollars for a particular service and charged another person twenty dollars for a like service, then a suit to recover back the ten dollars thus unjustly demanded and received by the railroad company was in the nature of a statute to recover a penalty. Upon this mode of reasoning a suit against any person or corporation who unjustly and unlawfully gets possession of my money, for the purpose of recovering back what they illegally obtained, would come under the head of a suit to recover a penalty. The trouble with the supreme court of the United States has been that they have uniformly regarded this legislation by congress to protect the people against unjust charges and discriminations as intended to punish the railroad companies of the country, and the court has felt called upon to protect the railroads from legislation interfering with their absolute control over their freight and passenger traffic. The court has assumed the role of a conservative element in the government, intended for the protection of railroad property against the legislative power of the country.
CHAPTER XI
Des Moines River Land Titles
The next important litigation in which I was engaged during my professional career, of public interest, was my engagement by Roswell S. Burrows, one of the original stockholders of the Des Moines Navigation Company, in suits growing out of his ownership of certain lands belonging to the Des Moines river grants, so-called. I will not undertake in this paper to go into a detailed history of the Des Moines river titles, so-called. Colonel C. H. Gatch some years ago prepared for publication a series of articles that were published in theAnnals of Iowa, Volume I, that gives a detailed account and history of the land grant by congress, and the various decisions of the United States land department construing the original grant of 1846, and also the decision of the supreme court of the United States in the numerous cases from time to time decided by that court. I deem this the most correct and just account of this important litigation that has ever been given to the public. Honorable B. F. Gue also published in hisHistory of Iowawhat purports to be an account of the various decisions and rulings of the land department and of the actions of the courts with reference to these lands. A part of his history is correct, but in treating of the rights of certain of the settlers he has done great injustice to the stockholders of the Des Moines Navigation Company who furnished the money to the company for the purchase of these lands. The first unwarranted statement contained in Mr. Gue's history is that persons who brought and maintained suits for possession of their lands against certain settlers were mere speculators who had bought a doubtful title to these lands for a song. The contract between the state of Iowa and the Des Moines Navigation Company, whereby that company became interested in certain lands of this grant, was made in 1853, after the state had disposed of the larger part of the lands lying below the Raccoon fork of the Des Moines river, and was made at a time when there was no question as to the right of the state to the lands above the Raccoon fork to the northern boundary of the state. Under this contract the company paid to the state, upon the execution of the agreement, over $60,000 in cash for the purpose of enabling the state to pay the indebtedness that had been incurred by the board of public works up to that time. The contract provided that the company should continue the work under supervision of a state engineer and commissioner, chosen by the state of Iowa, and should advance the money to pay, as the work progressed, a specific amount per cubic foot for stone work, excavation, timbers, and other material furnished in the construction of the locks and dams. Estimates were to be made from time to time by the engineer of the work of the amount expended by the company at the prices named in the contract, and as fast as $30,000 was so expended the company was to receive lands at $1.25 per acre. At the time this contract was made it had been found impossible to sell and dispose of the lands by the state commissioners rapidly enough to get money to pay the contractors who theretofore had been doing the work under contracts with the commissioners. The only difference between the Des Moines Navigation Company and the contractors engaged in this work was that the former now agreed to furnish money in advance to pay off the old unpaid obligations of the commissioners, and agreed to advance money as it was needed and take the lands in gross at $1.25 per acre as fast as each additional $30,000 were advanced and expended on the work. In the summer of 1857 the company made a demand on Mr. Manning, commissioner of the Des Moines River Improvement, to certify to them additional lands on certain estimates made by the engineer, which Mr. Manning refused. They accordingly brought suit against the commissioner asking of the court a writ of mandamus to compel him to certify the lands shown to be due them by the certificate of the engineer. I have already referred to this suit in the former part of this paper. I was employed by Mr. Manning and defended against it upon the ground chiefly that before the company could maintain suit for specific performance it was necessary for them to show that they had in all respects complied with their various contract obligations toward the state. The main provision of the contract that the commissioner claimed had not been complied with related to the progress of the work; that is to say, one-fourth of the entire contemplated improvement between the Raccoon fork of the Des Moines river and the Mississippi river had not been completed. The company, being defeated in this application for mandamus, ceased work upon the improvement, and in the winter of 1858 a settlement was made between the state and the company. This settlement was more especially brought about by those who had organized a railroad company for the purpose of building a railroad from Keokuk up the valley of the Des Moines river. This organization was known as the Keokuk, Fort Des Moines & Minnesota Railroad Company, and they desired a grant from the state of the remaining lands of the grant to aid them in the construction of their railroad. The basis of the settlement between the state and the Des Moines Navigation Company was simply that the company should receive a conveyance from the state for the lands that had been certified to the state under the grant up to that time, and that had not been heretofore disposed of by the state, or certified to the company, amounting to about 37,500 acres, and should pay to the state $20,000 in addition to the money already paid and expended on the improvement, and should surrender and cancel their contract and right to any further lands of the grant. (The terms of this settlement are contained in a joint resolution of the seventh general assembly, found on page 425 of the acts of that session.) At the time of this settlement there was no question by anyone as to the extent of the grant and the validity of the title of the state to the alternate sections five miles on either side of the river up to the northern boundary of the state.
In pursuance of the settlement proposed by the joint resolution which was accepted by the company, Governor Lowe on May 3, 1858, executed fourteen deeds or patents to the Navigation Company, conveying by particular description the lands to which the company was entitled under the resolution of compromise; and on May 18, 1858, a general deed conveying the same and any previously omitted lands by general description.
Another disturbing element in regard to the title to the lands arose under the grant of congress made in 1856 to the state of Iowa, to aid in the construction of certain lines of railroad crossing the state and having their initial point at the Mississippi river, and crossing the Des Moines river at various points between the Raccoon fork and the northern boundary of the state. These railroad companies raised the question as to the validity of the title of the Des Moines Navigation Company to the lands they had purchased from the state north of the Raccoon fork of the river. The Dubuque & Sioux City Railroad Company brought suit, or rather induced Litchfield to bring suit against them for lands lying within the line of their grant under act of 1856, or rather that would have been within their grant if not reserved from its operation or that had not been granted for the improvement of the Des Moines river. This suit was adroitly managed on the part of the railroad company so as to avoid testing any question of its title, and contained a stipulation that the company was in possession of the land under their grant and the court was only called upon to decide the extent of the grant under the act of 1846 to the state for the improvement of the river, and the supreme court of the United States decided that the act of 1846 did not grant to the state for the improvement of the river any lands north of the Raccoon fork. This decision was made at the December term, 1859, and is found reported in 23 Howard, S.C.U.S., page 66. The act of 1856, making the grant to the state for the purpose of aiding in the construction of these railroads, in express terms reserved from the operation of the grant any lands that had been theretofore reserved by any competent authority under any other grant of congress. The announcement of this decision created considerable excitement in the Des Moines valley, and the river lands above the Raccoon fork that had theretofore been deeded by the state to the Des Moines Navigation Company and had been by that company divided among its stockholders in consideration of the moneys that they had advanced to the company, and had been paid by the company to the state as before stated, were considered the lawful prey of every adventurer who could induce the local land offices to allow them to locate a land warrant upon any of these lands.
Another class of persons, however, were deeply interested in the question of this title. Prior to the contract made with the Des Moines Navigation Company the state of Iowa had sold some fifty thousand acres or more of these lands located above the Raccoon fork of the river, and many of these lands were occupied by actual settlers who had made improvements thereon and had paid the state valuable considerations for their title. To avoid the hardships that must otherwise have resulted from the decision of the supreme court, congress on March 2, 1861, passed the following joint resolution: "Resolved, that all the title which the United States still retain in the tracts of land along the Des Moines river, above the mouth of the Raccoon fork thereof, which have been certified to said state improperly by the department of the interior as a part of the grant by act of congress approved August 8, 1846, and which are now held by bona fide purchasers under the state of Iowa, be, and the same is hereby relinquished to the state of Iowa."
The congress of the United States further on the 12th of July, 1862, passed an act in express terms extending the grant to the northern boundary of the state, and providing that such lands "be held and applied in accordance with the provisions of the original grant, except that the consent of congress is hereby given to the application of a portion thereof to aid in the construction of the Keokuk, Fort Des Moines & Minnesota Railroad, in accordance with the provisions of the act of the general assembly of the state of Iowa, approved March 22, 1858."
At the December term, 1866, the supreme court of the United States, in the case of Samuel Wolcott vs. The Des Moines Navigation Company, reported in 5 Wallace, page 681, made a further decision confirming the title of the Des Moines Navigation Company under the acts of congress of 1861-2, to the lands that had been deeded to them by the state of Iowa as before recited, and further deciding that the lands within the five mile limits of the Des Moines river had been reserved by competent authority for this work of internal improvement at the time of the passage of the railroad grant of 1856.
Mr. Gue in his history of Iowa unfortunately attempts to disparage the title of the stockholders of the Des Moines Navigation Company by stating they were mere speculators who had purchased an impaired title, and were therefore entitled to no consideration. On the contrary, the men who received these deeds directly from the Des Moines Navigation Company were stockholders who had advanced their money in payment of their stock, which money had been paid over by that company directly to the state.
Soon after the decision of the supreme court in the Litchfield case in 1859, a suit was brought in the circuit court of the United States for the southern district of Iowa, asking an injunction against the local United States land officers at Fort Dodge and at Des Moines, to prevent them from receiving and recognizing any location or purchase of these reserved lands. The reservation of the land affected not only the lands within the railroad grant, but affected the right of any person to locate upon or purchase these lands from the United States, as they were not lands subject to settlement or entry. Justice Miller heard this application for an injunction, and an argument was filed by the authorities in Washington claiming that the proper officers of the land department had the sole authority to determine the question as to whether or not these lands were subject to location and entry, and that the question of the effect of such location and entry could only be decided by the courts, after entries were made and patents granted; that if the lands were not legally subject to entry as to any person claiming them, the action of the land officers would be void, and a court, if called upon by the owner, could cancel any patent or other evidence of title illegally issued. Justice Miller, after the full argument of the case, sustained this view of the case and held that the only remedy for parties claiming these lands under the act of 1846, and the subsequent act of 1861-2, was to apply to the court for the cancellation of any titles wrongfully issued by the land department or by the President. In accordance with this view of the case a number of suits were brought by the grantees of the Des Moines Navigation Company, who received their titles from the company in consideration of the moneys they had advanced as stockholders, and the supreme court of the United States, upon appeal to that court, cancelled a number of entries and patents that had been wrongfully issued. An attempt was made to make a distinction between the Des Moines Navigation Company and individuals who had purchased the lands from the state of Iowa, and settled thereon.
Mr. Gue in his history of Iowa claims that the act of congress of 1861 was only intended for the protection of those purchasers from the state who had actually settled upon their lands and made improvements thereon, and that congress in using the words "bona fide purchasers from the state of Iowa" did not include in those words citizens or residents of the state of New York who had bought their lands in good faith from the state of Iowa. The supreme court of the United States in the very purpose of its organization was intended by the constitution to organize a judicial body or tribunal before which all citizens of the United States should be equal before the law, without regard to the state in which they had their residence or location. There was no question about the fact that the Des Moines Navigation Company was a bona fide purchaser of these lands. At the time that they paid their money and took a conveyance from the state of Iowa, the stockholders of that company honestly believed they were getting a good and perfect title and were paying out their money for same in the utmost good faith. The statement of Mr. Gue in his history before referred to, that the persons who received deeds for these lands from the Des Moines Navigation Company were mere speculators, purchasing for a song a doubtful and disputed title, is wholly without foundation and fact, and the denunciation of the supreme court of the United States because the court made no distinction between bona fide purchasers because of their location or residence, very greatly mars the reliability and impartiality that ought to have been characteristic of this history of Iowa. Mr. Gue was a resident of Fort Dodge, where for years the atmosphere of that locality was permeated by the passion of men who had been disappointed in their attempt to secure a title to lands that they all knew before and at the time of the location and attempted entry on the same, had already been sold for a valuable consideration by the state of Iowa. The opinion of the supreme court, delivered by Justice Miller in the case of Williams vs. Baker, reported in 17 Wallace, 144, contains an accurate and clear exposition of this entire controversy, which fortunately was settled by the supreme court of the United States, and to which they have continuously and consistently adhered. Long after the diversion of the remaining lands of this grant to the Keokuk, Fort Des Moines & Minnesota Railroad Company, the Iowa Homestead Company, grantee of the Dubuque & Sioux City Railroad Company brought suit for a portion of these lands embraced in the river grant above the Raccoon fork, and attempted to disturb the title. In the meantime the Keokuk, Fort Des Moines & Minnesota Railroad Company had mortgaged these lands for the purpose of continuing their road from Des Moines to Fort Dodge. On the foreclosure of this mortgage these remaining lands were sold to a company known as the Des Moines & Fort Dodge Railroad Company, organized for the purpose of owning and operating that portion of the old Des Moines Valley road that had been constructed between Des Moines and Fort Dodge. On the foreclosure of this mortgage I had represented Martin Flynn and a number of the other contractors, for whom I had filed a mechanics' lien for work done and material furnished in the construction of the road north of Gowrie. I succeeded in obtaining a provision in the decree of foreclosure making these liens paramount to that of the mortgage, and when the road was purchased by the new organization called the Des Moines & Fort Dodge Railroad Company they were compelled to pay off Flynn and these other lien holders in order to secure their title. This new railroad organization elected Mr. Charles Whitehead, an attorney of New York City, its president, and I received from Mr. Whitehead a telegram asking if I could be retained as general attorney of their road. I replied that upon the receipt of a draft for five hundred dollars I would accept of the same as a general retainer. One object, I think, that the company had in desiring my services was to secure some one familiar with the question of the title of these Des Moines river lands that the new organization had bought in connection with this other part of the road.
The last contest over the title was the case of the Iowa Homestead Company claiming the title under the railroad grant of 1856. It was the case of the Iowa Homestead vs. The Des Moines & Fort Dodge Railroad Company, reported in 17 Wallace, 84. Mr. Gue, in his history of Iowa, makes a special point as to the hardship visited on one of the settlers by the name of Crilley. I was attorney for Mr. Burrows in that case. Mr. Crilley first attempted to locate a warrant upon a tract of land near Fort Dodge prior to the decision of the supreme court of the United States in the Striker case. He was refused permission to make any such location or entry and was distinctly informed by the local land officers that the lands belonged to the Des Moines river grant. After the decision in the Striker case in 1859 and after the settlement between the state of Iowa and the Des Moines Navigation Company and the payment of the last $20,000 of the consideration, and after the execution of the deeds and patents by the state to the Des Moines Navigation Company, Crilley succeeded in inducing the local land officers to allow his location, and ultimately obtained a patent through their influence, signed by the President. The circuit court of the United States declared his patent void and decreed cancellation of the same. He took his appeal to the supreme court at Washington and that court affirmed the decree. The judges of the circuit court at Des Moines permitted Mr. Crilley, by his attorney, then to file a claim for his improvements under the occupying claimant law of Iowa. Commissioners were appointed and his improvements were valued at a very liberal amount, far in excess of their real value or cost. Mr. Burrows paid the money into court and Crilley received the same, but after he received pay for his improvements he still refused to vacate the land. A writ was issued to dispossess him, and upon the service of the writ by the United States marshal, Mr. Crilley presented a loaded revolver to the deputy marshal and threatened his life. The marshal thereupon returned to Des Moines and secured authority to arrest Mr. Crilley, which he did, and Mr. Crilley was actually detained in prison for several weeks and until he agreed peaceably to surrender possession of the land. This is the whole story of the inhumanity out of which Mr. Gue's history of Iowa makes a case of such extreme cruelty and hardship.
That this controversy over the title of the Des Moines river grant was a most unfortunate one, both for those who purchased the lands from the state and those who attempted to purchase them from the general government after the state had sold them, there can be no question. It was also very detrimental to the settlement of that part of the state. The squatters or settlers made very indifferent improvements and very indifferent cultivation of the land, and seldom if ever paid any taxes. After the title of the Des Moines Navigation Company and its stockholders and grantees had become fully settled, the counties where these lands were located levied taxes upon the same, and suits were brought against the Des Moines Navigation Company and its grantees. The supreme court of Iowa held that from the date of the joint resolution of 1861 the title to these lands inured to and became perfect in those who had purchased and taken their deeds from the Des Moines Navigation Company, and held them liable for the taxes that had been assessed from the date of that joint resolution of 1861.
I continued to act as attorney for the Des Moines & Fort Dodge Railroad Company for about ten years. I was not, however, employed upon a salary, but only after my general retainer charged that company from time to time for services actually rendered, and charged them as I did any other client.
CHAPTER XII
A. O. U. W. Controversy
One other case of some notoriety and public interest in which I was engaged in the latter years of my practice was the controversy between the two branches of the Ancient Order of United Workmen. It seems that the Grand Lodge of this organization had adopted an amendment to their plan of organization by which in case of extraordinary loss and liability occurring in any locality, and within the jurisdiction of some subordinate state lodge, the members of lodges in other states might be assessed and required to contribute for the payment of such extraordinary losses. A portion of the members in the state of Iowa refused to recognize this requisition and seceded from the organization as a national body, and organized another state lodge by the same name, Ancient Order of United Workmen, and incorporated themselves under the general provisions of the law of Iowa for the organization of benevolent societies, repudiating any connection with the national lodge. Those who adhered to the national organization still continued, however, to do business by their old name and under their former organization as adherents of the national body. The new organization, relying upon their incorporation as giving them some special advantage, brought suit in the district court of Dubuque county for an injunction against this old organization adhering to the national body, and sought to perpetually enjoin them from the use of the name "Ancient Order of United Workmen," or the initials "A.O.U.W." Upon the trial of this case on demurrer in the district court in Dubuque, I sought to obtain a continuance of the hearing on the ground of my ill health, having been confined to my room and my bed for some three weeks. The judge of the district court granted a continuance only for a few days. I went to Dubuque, however, and made a three hours' argument in the case, sitting in my chair, not having strength to stand upon my feet. The court granted a perpetual injunction against my client. An appeal was taken immediately to the supreme court and an interlocutory order obtained staying the injunction until the case could be heard in that court. On the final hearing and trial the injunction was dissolved, and the right of my client to use and do business under the title of "Ancient Order of United Workmen" was successfully maintained. This decision is fully reported in supreme court reports, 96 Iowa, 592.