Establishing Justice in Middle America: A History of the United States Court of Appeals for the Eighth Circuit

ESTABLISHING JUSTICE IN MIDDLE AMERICA

This page intentionally left blank

ESTABLISHING

JUSTICE IN MIDDLE AMERICA A History of the United States Court of Appeals for the Eighth Circuit

JEFFREY BRANDON MORRIS FOR E WOR D BY W IL L I A M H. W EBST ER PUBLISHED FOR THE HISTORICAL SOCIET Y OF THE UNITED STATES COURTS IN THE EIGHTH CIRCUIT

University of Minnesota Press Minneapolis London

Copyright 2007 by the Regents of the University of Minnesota all rights reserv ed. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Published by the University of Minnesota Press 111 Third Avenue South, Suite 290 Minneapolis, MN 55401-2520 http://www.upress.umn.edu library of congress cataloging-in-publication data Morris, Jeffrey Brandon, 1941– Establishing justice in Middle America : a history of the United States Court of Appeals for the Eighth Circuit / Jeffrey Brandon Morris. p.

cm.

“Published for the Historical Society of the United States Courts in the Eighth Circuit.” Includes bibliographical references and index. ISBN: 978-0-8166-4816-0 (hc : alk. paper) ISBN-10: 0-8166-4816-6 (hc : alk. paper) 1. United States. Court of Appeals (8th Circuit)-History. I. Title. KF87528th .M67 2007 347.73'2409-dc22 2007023934 Printed in the United States of America on acid-free paper The University of Minnesota is an equal-opportunity educator and employer.

15 14 13 12 11 10 09 08 07

10 9 8 7 6 5 4 3 2 1

To Frank J. Macchiarola Whitney North Seymour Jr. David G. Trager living proof that great and good people still go into the public service and perform with honor while remaining kind and thoughtful

This page intentionally left blank

contents +++++++

foreword

William H. Webster . . . . . . . . . . . . . . . . . . . . . . ix

pr eface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii ack nowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xix introduction Middle America during the Nineteenth Century . . . . . . . . . . . 1 1. “An Empire in Itself ”: The Eighth Circuit before 1891 . . . . . . 15 2. The Early Years, 1891–1929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53 3. The Sanborn Court, 1929–1959 . . . . . . . . . . . . . . . . . . . . . . . . .97 4. The Era of the Warren Court, 1956–1969. . . . . . . . . . . . . . . . 141 5. The Moderately Liberal Court of the 1970s . . . . . . . . . . . . . .189 6. “Debate, Differences, and a Robust Exchange of Ideas”: The Eighth Circuit during the 1980s. . . . . . . . . . . . . . . . . . . 239 7. Leaving the Old Century and Entering the New . . . . . . . . 287 a fterword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 343 notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .415

This page intentionally left blank

foreword +++++++

William H. Webster

Much has been written about the history and workings of the U.S. Supreme Court and the justices who have served there. It may come as a surprise to some that in the exercise of its certiorari powers, the Supreme Court annually hears less than 2 percent of the appeals from the cases decided in the circuit courts of this country. Thus, in a real sense, these thirteen circuits are the courts of last resort for some 98 percent of the cases in the federal system. Yet, outside the legal profession, relatively little is known of our circuit courts, how they are composed, how cases are decided, and their impressive history. One is more apt to read in the press or hear in the media that “a federal appeals court sitting in St. Louis has held that . . .” Very little information that might enlighten the general public is included about the diverse backgrounds of the judges or the history of the circuits. This is, I might add, how most circuit judges like it. They work in their individual chambers throughout the circuit and collectively, when cases are argued before them, and communicate with each other by today’s most modern means. Their opinions are signed and published, as in the Supreme Court, but with far greater anonymity and much more media focus on the outcome rather than the author. In this history of the Eighth Circuit Court, professor Jeffrey Brandon Morris has undertaken to record how federal justice came to Middle America, tracing its development from the earliest days following the Louisiana Purchase and the pathway to the West set by Meriwether Lewis and William Clark, who started their long journey at St. Louis on May 14, 1804. It is a fascinating story and deserves to be told. In its earliest stages, the Eighth Circuit covered approximately onethird of continental America—a gigantic territory. As trial courts were [ ix ]

FOREWORD

established in various parts of this “empire,” a series of arrangements for hearing appeals was established. Justices of the Supreme Court were detailed to hear appeals in each circuit with the participation of district judges from the circuit. Traveling from place to place by horseback, trains, and riverboats, these forerunners of the modern judicial system covered thousands of miles each year on circuit. The cases were fewer than those heard today, but the distances were larger. These justices and judges must have come from hardy stock. By 1929, the westernmost states had gravitated into what is now the Tenth Circuit, and the states east of the Mississippi River had been added to the Seventh Circuit. What remained—seven states in all—was still a vast and diverse area stretching from North Dakota, at the Canadian border, to Arkansas in the Deep South. Its judges were selected by the president from states within the circuit. As the workload increased, additional judges were added. When I joined the Eighth Circuit in 1973, there were eight active judges and three senior judges; today there are eleven active judges and ten senior judges. They bring a rich mixture of cultural, educational, and legal backgrounds to the work of the court. Today the Eighth Circuit courtrooms, chambers, and administrative ofﬁces occupy the top ﬂoors of the Thomas Eagleton Federal Courthouse in St. Louis, Missouri, the largest federal courthouse in the United States. My chambers were in the old federal courthouse, across the street from the new Thomas Eagleton building. The old courthouse was built in the 1930s following many years during which the court had been housed in the old federal post ofﬁce building. It was rugged and handsome, in the art deco style, with benches and counsel tables designed to reﬂect the same architecture. I had served in that building from 1960 to 1961 as U.S. Attorney and from 1971 to 1973 as judge of the U.S. District Court for the Eastern District of Missouri. I continued on as circuit judge until 1978, when I was appointed director of the Federal Bureau of Investigation and moved to Washington, D.C. I recall attending my ﬁrst judicial conference of the Eighth Circuit in 1960. Before that time, only judges were invited, and this time the conference was opened to U.S. Attorneys in the circuit (who were allowed to sit around the walls of the conference room, but not to talk). Today members of the bar are invited and participate in meaningful ways. In 1970 I was approached by Chief Judge Marion C. Matthes, who expressed his concern that young people were losing conﬁdence in our justice system; some had taken to the streets and burned ROTC build[ x ]

FOREWORD

ings. He urged me to think about a career on the bench, and I did. Those were great years for me. For the bicentennial celebration in 1976, we sat in many places outside the normal St. Louis–St. Paul axis. We sat in courtrooms in Des Moines, Kansas City, Little Rock, and at the University of South Dakota. But the most memorable session for me was the session in the “Old Courthouse” in St. Louis (now a museum) in the room where the Dred Scott case was heard so long ago. A seal of the Eighth Circuit was commissioned that showed the states in the circuit sheltered under an eagle’s wing. A copy of the seal has hung in my ofﬁce for almost three decades. Some of my warmest memories involve the judges whom I knew and with whom I served on the Eighth Circuit. When I was U.S. Attorney, the Chief Judge was Harvey M. Johnsen, a wise and well-organized bachelor who reserved Saturdays for vacuum cleaning and dusting. Just as I was a new U.S. Attorney, the newest circuit judge was Harry Blackmun. He and Dottie were very solicitous of me and became warm friends for the next four decades. My mentor was Chief Judge Marion C. Matthes, better known to his friends as Charlie. He was an experienced jurist and a wise and kindly man. I went to the Eighth Circuit when Judge Matthes took senior status, and it was largely due to his encouragement that I reluctantly agreed to leave the court ﬁve years later to take on the responsibilities of director of the Federal Bureau of Investigation. Judge Donald Ross, a hero of World War II, likewise encouraged me. Judge Roy Stephenson, another war hero, was a friend from U.S. Attorney days who moved up the ranks in Iowa to district judge and then to the circuit. He was a strong and stable force on the court, and I deeply regret his tragic end. Chief Judge J. Pat Mchaffy, who swore me in, had been Chief Judge only a year but brought a unique understanding of the workings of government. Chief Judge Floyd Gibson, a fellow Missourian, had a ﬁne judicial temperament that made him an able leader. Besides, we were both fellow farmers on the side. Judge Myron Bright and I had some tough cases together, including the famous Reserve Mining case. His unfailing good humor, whether on the bench or on the tennis court, always brought us through. I had watched Judge Smith Henley, from Arkansas, as a masterful district judge, and it was a pleasure to serve with him on the Court of Appeals. Judge Donald Lay, from Nebraska, who had had a brilliant career as a trial lawyer, joined the court quite young in 1966 and later [ xi ]

FOREWORD

served as Chief Judge for more than twelve years. He continued to serve as a senior judge along with my former colleagues Judge Bright and, until their recent retirements, Judges Ross and Heaney. Both Judges Ross and Heaney had been leaders in their respective political parties before “taking the veil,” and both cheered from the sidelines with great good humor. Judge Bright continued to teach courses on trial procedure and evidence at St. Louis University, and Judge Heaney recently took time to chronicle the desegregation disputes in the St. Louis school district in a compelling book, Unending Struggle: The Long Road to an Equal Education in St. Louis. I had the pleasure of sitting with two other senior judges, former Chief Judge Charles J. Vogel and former Chief Judge Martin D. Van Oosterhout. Judge Vogel was always gracious, even when we disagreed. Judge Van Oosterhout, who looked like one of the Dutch masters on the famous cigar box, handled reversal by the Supreme Court with much greater equanimity than some of us who were more restive in reversal. We were also fortunate to have the services of retired Supreme Court Justice Tom Clark from time to time, and it was refreshing and enlightening to have judges from the district courts of our circuit participate (as I once did) as members of the panel. It has been my privilege to know all of the Supreme Court justices for the past thirty years. They were, and are, great justices and warm human beings. Equally so are the judges who have served on our outstanding Eighth Circuit and with whom I was honored to serve and share a common dedication to the cause of justice.

[ xii ]

preface +++++++

This is a history of the U.S. Court of Appeals for the Eighth Circuit that begins with the earliest federal court in one of the states of the circuit and continues until the end of 2001. As with my histories of the federal courts of the Second and District of Columbia Circuits, this book attempts to cover all important facets of the court—the judges who have served, its major decisions, and the administration of the court—while placing the court within the history of the region and nation. Such histories of courts other than the Supreme Court of the United States are few in number, but the price paid is that no one judge, decision, or administrative development can be treated exhaustively. Because of the emphasis that scholars and other observers have placed on the Supreme Court, a national court specializing in constitutional law and in the interpretation of federal statutes, the signiﬁcance of the important roles performed by the tier of courts just beneath it has largely been overlooked. These roles run from simply adjudicating disputes, acting as a buffer between the federal district courts and the Supreme Court so that it will not be overwhelmed with cases, to supervising the federal district courts as well as acting as a balance wheel in the federal system, both enforcing centralizing national policies and acting as a brake on centralizing tendencies by reﬂecting the concerns of states and localities. This book describes and analyzes the ways that the Court of Appeals for the Eighth Circuit has made itself useful in the growth of the Midwest, by settling disputes over land, facilitating the growth of the region’s infrastructure, helping to unleash the creative energies of a market economy, deciding cases spurred by attempts to have and regulate development, as well as by maintaining an atmosphere of constitutionalism, [ xiii ]

PREFACE

permitting the United States to make the transition from a decentralized to a centralized nation and from a relatively laissez-faire nation to a welfare state. The reader will see how the circuit’s two great rivers, its rich farmland and valuable resources—its forests and minerals—as well as the different cultures of its states have affected not only its economic development but also the work of its federal courts. The work of the circuit’s courts has also been impacted by changes in transportation, communications, and production, as well as by political change. The major geophysical characteristics of the Eighth Circuit at the time it was settled by people of European descent are described in the Introduction. Chapter 1 is devoted to the work of the federal courts before the creation of the U.S. Court of Appeals for the Eighth Circuit in 1891. Federal courts embodied the mixture of centralization, regionalism, state centeredness, and localism that characterizes the American federal system. In the period before 1891, the federal courts were primarily centralizers enforcing federal laws and Supreme Court decisions. Where Native Americans were concerned, the courts demonstrated, at least periodically, more sensitivity to the rights of the indigenous peoples than did most other governmental ofﬁces. The most politically sensitive cases of the period, however, involved enforcing bond liabilities of municipalities (especially in Iowa), as well as enforcing constitutional barriers to local expenditure of tax monies to attract and assist businesses. Cases involving the regulation of railroads and grain storage facilities attracted national attention. During the period covered by chapter 2—from the creation of the Court of Appeals in 1891 to the division of the Eighth Circuit in 1929— the major function expected of the court was to divert the stream of federal appeals away from the Supreme Court. Successful in that task, the Court of Appeals for the Eighth Circuit also dealt with important public policy cases in the areas of antitrust, railroad rate regulation, labormanagement conﬂicts, and the “radical” program of the Nonpartisan League. The Court of Appeals also dealt with perennial staples of federal law—patent and trademark, taxation, and federal criminal law, including prosecutions for political corruption. The court strongly supported antitrust prosecutions, restrained state regulation of railroads, supported the federal policy of assimilation of Native Americans, and, during World War I, was unusually sensitive to individual rights. During the years covered by chapter 3 (1919–1959), the United States [ xiv ]

PREFACE

was transformed into a centralized welfare state and superpower. During this period, the lower federal courts including the Eighth Circuit increasingly applied centralizing policies generated by laws passed by Congress and Supreme Court decisions. The Court of Appeals contributed to the growing centralization by oversight of federal administrative agencies and the federal system of revenue collection, as well as a greater number of prosecutions for violating an increasing number of federal criminal laws. But at the same time that the court was overseeing the powers wielded by the federal government during the Great Depression and World War II, it dealt with distinctive regional problems and issues, including litigation connected with Mississippi River ﬂood control projects and cases involving farming and Native Americans. Chapter 4 portrays the Eighth Circuit between 1956 and 1969, when federal judges were asked with increasing frequency to wield judicial power to redress inequality in American society. The Court of Appeals handled explosive school desegregation cases and highly controversial cases involving legislative redistricting, the rights of criminal defendants, and the First Amendment. But if the court staunchly followed the nationalizing decisions of the Supreme Court in civil rights cases, in reapportionment cases the judges sitting on three-judge district courts were sensitive to local interests and political realities. During this period, the Court of Appeals moved from a court slightly to the right of center to one that could be described as moderately progressive. During the 1970s, the period covered in chapter 5, the court confronted a docket shaped in many ways by the activism of the Supreme Court and Congress between 1961 and 1973 with a membership more committed to actively protecting individual liberty than it had been in the past. Not only did the court continue as a strong friend to civil rights, but it was particularly sympathetic to gender discrimination claims and cases involving the rights of students, and it supported the judicial super vision of the Arkansas prison system. Also during this period the court began to hear cases involving statutes (often from Minnesota or Missouri) restricting abortion. Throughout the 1970s, the cases that gave a regional ﬂavor to the docket involved the environment and Native American militancy, the most visible cases of which derived from a violent confrontation between the American Indian Movement (AIM) and the FBI at the site of the 1891 Wounded Knee massacre. The most signiﬁcant characteristic of the work of the Court of Appeals during the 1980s, the period covered by chapter 6, was the strong [ xv ]

PREFACE

intellectual differences between judges newly appointed by President Ronald Reagan and the more senior judges. These differences were evidenced by the number of en banc proceedings overturning decisions made by panels of the court, as well as the large number of dissents from the denial of rehearing en banc. The docket of the court continued to include a large number of value-laden cases in areas such as abortion and school desegregation (including major cases from St. Louis and Kansas City). For the ﬁrst time in the court’s history, it heard a considerable number of church-state cases. There were also a number of difﬁcult cases involving bankruptcy, capital punishment, and federalism. Regional cases of note involved farm bankruptcies, Native Americans, and water diversion and irrigation projects. The ﬁnal chapter covers the last years of the twentieth century and the ﬁrst year of the new century. The court continued to face important abortion, capital, desegregation, and Native American cases, although litigation involving President Bill Clinton had the greatest visibility. There were also important criminal cases involving drugs, sentencings, political corruption, and capital punishment. In cases involving preemption of state law by federal legislation and the Dormant Commerce Clause, the Court of Appeals continued to take positions that supported federal authority and opposed state parochialism. It also heard a rich variety of cases involving the environment. As it had been throughout its history, the Court of Appeals was rightfully obedient to the Supreme Court, remained sensitive to the norm of collegiality, and maintained high professional standards. One of my major reasons for undertaking the history of the U.S. Court of Appeals for the Eighth Circuit was that it offered the opportunity to study a court whose jurisdiction encompassed a very different part of the United States from the courts I had previously written of, which were in the Second and District of Columbia Circuits. Beyond that, it offered the opportunity to become acquainted with a region I had not known save for its two largest cities. Two extended trips west permitted me to visit six of the Eighth Circuit’s seven states. It was a privilege to travel the length of Nebraska, to canoe in the Boundary Waters Canoe Area Wilderness, to visit the richly wooded hills of Eastern Iowa, to work within sight of the Gateway Arch, and to see North Dakota’s Red River Valley. Wherever possible, I stopped to visit or at least see the sites of notable Eighth Circuit cases, from the (now abandoned) plant of Reserve

[ xvi ]

PREFACE

Mining on the shore of Lake Superior, to South Dakota’s Oahe Dam, to Samuel Freeman Miller’s home in Keokuk, Iowa. The major purpose of these trips was to interview the judges of the Court of Appeals, and I was able to speak with ﬁfteen members of the court: Richard S. Arnold, C. Arlen Beam, Pasco Bowman, Myron H. Bright, George G. fa*gg, David R. Hansen, Gerald W. Heaney, John D. Kelly, Donald P. Lay, James B. Loken, Frank J. Magill, Michael J. Melloy, William J. Riley, Donald R. Ross, and Roger L. Wollman. I spoke with all but two in their home chambers. Each was generous with his time, and each was forthcoming. I was unable to speak with one member of the court whom I tried to see during my trips but we faced unavoidable scheduling conﬂicts. I had hoped to see the remaining judges on a third trip but was unable to make that trip. On my travels I also spoke with several district judges: Bruce Van Sickle of the District of North Dakota, John B. Jones of the District of South Dakota, Warren Urbom of the District of Nebraska, Edward J. McManus of the Northern District of Iowa, and Ronald E. Longstaff of the Southern District of Iowa, as well as Magistrate Judge Richard W. Peterson of the Southern District of Iowa, author of works on the district courts of Iowa. I was also able to speak with Ardell Tharaldson, author of a book on the history of the District of North Dakota; Peggy Tesla, author of a book on South Dakota district judges; Professor John Wunder, who is working on a history of the District Court for the District of Nebraska; and Professors R. Alton Lee and Robert Vogel, who are both very knowledgeable on aspects of the work of the federal courts in the Eighth Circuit. June L. Boadwine, former circuit executive of the Eighth Circuit, not only submitted to an interview but offered materials and guidance. To all of my interviewees, my deep appreciation for the time you gave me, and for your hospitality and information. I also acknowledge with appreciation the assistance of Millie Adams, circuit executive for the Eighth Circuit, and her ofﬁce; Beth M. Mobley, associate director of the Touro Law School library; and Roger K. Newman, a distinguished scholar, who for thirty years has generously shared with me ﬁndings from his indefatigable digging in archives and interviews. A special acknowledgment should be made to the late Gerald T. Dunne, an important scholar, who was the original and admirable choice to write this history. When his health made it impossible for him to continue, he shared his materials and great good spirits and stories with me. [ xvii ]

PREFACE

It is a particular honor to have the Foreword to this book written by one of the most distinguished public servants of my lifetime, William Webster, former director of both the FBI and the CIA as well as U.S. Attorney, district judge, and judge of the U.S. Court of Appeals for the Eighth Circuit. Judges Pasco Bowman and Morris S. Arnold of the Court of Appeals supported this project in a variety of ways for which I am very grateful. In this lengthy undertaking, I was blessed by the oversight of Judge Gerald W. Heaney of the Court of Appeals and Thomas H. Boyd, former president of the Historical Society of the United States Courts in the Eighth Circuit, both of whom are published legal scholars in their own right. Judge Heaney could not have done anything more to make this history a reality. One of the joys of this project—achieved in St. Louis, New York, and Duluth—was the opportunity to hear him speak about his experiences in World War II and in Minnesota politics. Tom Boyd was responsible for the logistics of this undertaking, which were dispatched impeccably. Beyond that, he added considerable intellectual strength and judgment by his readings of the manuscript. His enthusiasm for this project, his steadiness, reliability, and unfailing courtesy are greatly valued. A writing project of so many years is kept aﬂoat by a loving family, and so it is appropriate here to state how very much my wife, Dona, and my (grown-up) children, David and Deborah, mean to me.

[ xviii ]

acknowledgments +++++++

The Court of Appeals Branch of the Historical Society of the United States Courts in the Eighth Circuit is grateful to Professor Jeffrey B. Morris for his diligence and hard work in preparing this history of the United States Court of Appeals for the Eighth Circuit. His painstaking research has resulted in a wonderful book, which stands as a testament to his skills as one of the country’s ﬁnest legal historians. We also acknowledge and thank the Honorable William H. Webster for contributing the Foreword to this work. We wish to acknowledge all the judges, both past and present, of the United States Court of Appeals for the Eighth Circuit, and we extend particular thanks to the Honorable Gerald W. Heaney, the Honorable Pasco Bowman, and the Honorable Morris S. Arnold for their tireless efforts in support of this project. Finally, we are deeply grateful and indebted to the following individuals, law ﬁrms, bar organizations, and federal courts who have provided critical and generous support for this project: June L. Boadwine Elizabeth R. Boyd Thomas H. Boyd Briggs and Morgan, PA Dickinson Mackaman Tyler & Hagen, PC Dorsey & Whitney LLP Eighth Circuit Bar Association Faegre & Benson LLP Lincoln Inne Maslon Edelman Borman & Brand, LLP Minnesota Chapter of the Federal Bar Association [ xix ]

ACKNOWLEDGMENTS

Nyemaster Goode West Hansell & O’Brien PC Robins Kaplan Miller & Ciresi LLP Rider Bennett, LLP United States Court of Appeals for the Eighth Circuit United States District Court for the Eastern District of Arkansas United States District Court for the Northern District of Iowa United States District Court for the Southern District of Iowa United States District Court for the District of Nebraska Vogel Law Firm Winthrop & Weinstine, PA

We hope the reader will be satisﬁed with the end product, and we again thank Professor Morris, the judges, and all the others listed here for their contributions in making this book a reality. Thomas H. Boyd President, Court of Appeals Branch Historical Society of the United States Courts in the Eighth Circuit

[ xx ]

introduction +++++++

Middle America during the Nineteenth Century

he land that would become the Eighth Circuit was barely settled by Europeans when the U.S. Constitution was adopted. Not for a century would all the states that today constitute the Eighth Circuit be sufﬁciently settled to be admitted to the American Union. Common elements unite large parts of the Eighth Circuit and distinguish it from other parts of the United States. Two great rivers ﬂow through or by each of the states, shaping their land and determining the course of exploration and settlement, as well as economic growth. A great inland water system linking a third of the North American continent drains this region. This land felt vast to its settlers, and indeed it was. Largely lacking in forests and mountains, much of it was grassland stretching from horizon to horizon, ruled by weather of elemental violence—extremes of hot and cold, savage thunderstorms, blinding blizzards, hailstorms, and tornadoes. In addition to the Mississippi and the Missouri rivers, great railroad routes would traverse it as well. Much of the farmland was rich beyond compare, and where the soil was not fertile, there was room for grazing cattle and sheep. Underneath the topsoil lay valuable deposits of iron, lead, and gold. Nature did not, of course, treat each of the region’s seven states alike, and the differences among them were of no small importance to the legal issues that would be generated there.1 The most signiﬁcant features of Minnesota that determined the course of its settlement and economic growth were its great forests, extensive beds of iron, and large [ 1 ]

INTRODUCTION

number of waterways. In Iowa, the extraordinarily rich soil and relative freedom from brutal weather permitted corn to mature in abundance. Rapid settlement was made possible by the absence of physical barriers, while the great rivers that marked the state’s eastern and western borders facilitated the marketing of its products. Much of Nebraska’s soil—at least in its eastern section—was as deep and rich as that of Iowa, but Nebraska shared with North Dakota and South Dakota a harsh climate, cyclical droughts, and, in the west, light rainfall, all of which contributed to making Nebraska’s agriculture less prosperous. However, a ribbon of rivers ﬂowing eastward did provide fertile, irrigated soil, while the valley of the River Platte, running the length of the state, acted as a spinal cord for transportation and became a natural highway to the west. Missouri, the meeting place of three great rivers, had a climate that, with its different terrains—prairie rich soil, alluvial plains, and highlands—made it possible to cultivate nearly every crop (save citrus fruits) grown in the continental United States. Two-thirds covered with forests at the time of its settlement, Missouri contained signiﬁcant deposits of lead, zinc, and iron. Arkansas, the southernmost state of the Eighth Circuit, was made up of coastal plains, the mountains of the Ozarks, and the hot and swamplike Mississippi Delta, which was particularly ﬁt for growing. Different cultures would ﬂourish in each of the state’s sections. Like Missouri, the settlement of Arkansas would be fostered by the broad river ﬂowing across it, which made it easy to reach the interior.2 Development and Settlement from the Louisiana Purchase until 1862

Exploration, Early Trade, and Transportation Before the Louisiana Purchase, the area of the Eighth Circuit was the land of the largely nomadic Native Americans, buffalo, prairie dog, and pronghorn, intermittently visited after 1500 by Spanish conquistadors, French and British fur traders, and French missionaries. Almost all those lands became American territory through the Louisiana Purchase.3 At the time of the purchase, there were only a sprinkling of Europeans living in this vast area, almost none of them American citizens. The process of American development began with the explorer; then came the [ 2 ]

INTRODUCTION

fur trader, the prospector, and the farmer. Forts were built to protect traders, settlers, and wagon trains, for some of these states would also become highways to more desirable areas still farther west. Before the Civil War, the most important factors affecting development of the region were explorers, river transportation, cheap land, and relations with the Native Americans. The ﬁrst Americans who “rode” the Eighth Circuit, Meriwether Lewis and William Clark, began their journey at St. Louis, the city that holds the present seat of the Court of Appeals for the Eighth Circuit, on May 14, 1804, shortly after ceremonies marking the formal transfer of Upper Louisiana to the United States. The party of explorers crossed Missouri from east to west and entered present-day Nebraska through its southwestern corner. Encountering Native Americans for the ﬁrst time at Council Bluffs, the voyagers detoured brieﬂy into Iowa to bury one of their number, who had died of natural causes. Lewis and Clark traveled through present-day South Dakota, entering North Dakota in mid-October 1804. There they would spend 212 days, more time than in any other state, wintering with the friendly Mandan Indians, where the Missouri and the Knife rivers met. On their return journey of a voyage that took two years, four months, and covered 7,689 miles, the party passed through all the states of the present Eighth Circuit save Iowa and Minnesota.4 Even before Lewis and Clark returned, commercial exploitation of the region by white Americans had begun. On their outward journey, the explorers had met no fewer than eight parties of traders coming downstream. Foreseeing the need to protect fur traders, the government commissioned Zebulon Pike, who in 1805 made an expedition by keelboat to scout sites for military posts. Pike reached what later would become St. Paul. In 1817, Major Stephen H. Long selected the sites of Fort Smith (Arkansas) and Fort St. Anthony (the Twin Cities) to be the southern and northern ends of the government’s line of defense along the western frontier. In 1819 Fort Atkinson was established at Council Bluffs, a few miles north of present-day Omaha. During the decade before the Civil War, fur trading and logging were important areas of commerce. The states and territories of the Eighth Circuit played an important role in western expansion. St. Louis became a major center for the outﬁtting of expeditions west, while Nebraska City, Omaha, Independence, and St. Josephs (Missouri) were important points of embarkation for settlers crossing the plains. Before rails spanned the continent, half a [ 3 ]

INTRODUCTION

million or more used the Platte Valley of Nebraska as the overland route to Utah and the states bordering on the Paciﬁc, stopping at trading posts and way stations. Thriving commerce would have been impossible without developments in transportation. In the beginning, it was the two great rivers that both united and divided the circuit. The Mississippi and Missouri Rivers, especially the Missouri, which ﬂowed through or by ﬁve of the states, were full of snags and sandbars, uprooted trees, swirls and whirlpools. Making their way up the Missouri by keelboat, Lewis and Clark could cover only ﬁfteen to twenty miles on a good day.5 The ﬁrst steamboat, the Independence, described as “a huge serpent, black and scaly,” and “a monster of the deep,” ascended the Missouri in 1817.6 By 1831, the practicality of steamboating on the Upper Missouri had been established, although the northern section of the river could not be used during the winter. Voyages were no sure thing. More than four hundred vessels were sunk or damaged due to boiler explosions and as a result of collisions with the Missouri’s ﬂoating trees, ice, and snags. Nevertheless, although the all-time record for a steamboat on the Missouri was only thirteen miles per hour, the steamboat was many times faster than the keelboat and piragua, and its capacity to haul freight was much greater. Thus the steamboat stimulated commerce, created new markets, and spurred the development of commercial centers. By 1850, some three thousand steamboats carrying nearly one million tons of freight tied up annually at the St. Louis levee. So long as the steamboat was dominant, commerce and communications went north to south rather than east to west, and all the river towns depended to some degree on St. Louis, the leading city in the West. Its port received goods from the northern Rockies and Great Plains via the Missouri; from the northern prairies and Illinois via the Mississippi; and from as far away as the Appalachians via the Ohio River.7 In the ﬁrst part of the nineteenth century, roads lagged behind water as a means of transportation. Indeed, the Mississippi, a great nautical highway, proved a major barrier to road travel. The construction of bridges across the river was delayed because of the bitter opposition of steamboat companies and ferry operators. Nevertheless, a company like the Western Stage Company, which operated throughout Iowa, Missouri, eastern Nebraska, and Wisconsin in midcentury, owned 600 coaches, 3,000 horses, and employed 1,500 persons.8 Although road travel im[ 4 ]

INTRODUCTION

proved signiﬁcantly in a generation, by the end of the Civil War, a stagecoach in the Platte Valley could go only ten miles an hour, while a few years later, it took a passenger riding the 653 miles from Atchison, near Kansas City, to Denver, four and one-half days.9

Settlement of the Land, “Removal” of Native Americans, and Statehood Settlement required available land and the settlers’ conﬁdence that they would be secure from attack by Native Americans. This appeared to depend in large measure on resolution of the “Indian problem,” a problem that, of course, was solved on terms satisfactory to people of European descent. The questions of title to land and issues involving relations with Native Americans would lead to important litigation in the Eighth Circuit throughout its history. As a result of the Louisiana Purchase or of Indian cessions, much of Arkansas, Missouri, Iowa, and Minnesota was at some point owned by the United States. When the U.S. government ﬁrst considered what to do with the lands newly acquired by the Louisiana Purchase, it envisioned a great plan of organized growth, which, while often circumvented, would nevertheless be of continual signiﬁcance. Government land was systematically and comprehensively surveyed using physical descriptions that were given scientiﬁcally, rather than by the old English system of metes and bounds, in which property description depended on physical objects such as trees or creeks. In this process, old French and Spanish land titles were “regularized,” a process not free of fraud, forgery, and favoritism. Moreover, much land would be sold to speculators, and a great deal went to squatters. The ﬁrst public land sales in Missouri took place in 1818 and became the model that would generally be used for sales of public land in the region. Federal law provided that tracts no smaller than 160 acres be sold by bid, with a minimum price of two dollars per acre.10 Though it had been only sparsely populated by people of European origin at the time of the Louisiana Purchase, Missouri was rapidly settled by pioneers from Kentucky and Tennessee, as well as from Virginia and North Carolina, giving the potential state a signiﬁcant southern and slave population. However, the U.S. government was unable to fully control westward expansion. Thousands of families, for example, headed west to Arkansas, picked out choice sites, and erected crude cabins. If at ﬁrst these squatters [ 5 ]

INTRODUCTION

lived in a “legal no-man’s-land,” Congress would pass a series of preemption laws giving those living on the land the ﬁrst choice of purchasing it.11 In Iowa, thousands of settlers arrived in the southeastern part of what became the state before the area was ofﬁcially opened for settlement and ahead of the surveying and sales. The Preemption Act of 1841 essentially recognized the squatters by permitting them to purchase “their land” at $1.25 per acre. Other land in Iowa was purchased outright from the federal government, and still other land was acquired by redeeming land warrants given to soldiers for their service. In Minnesota, squatters were beneﬁted by the Preemption Act of 1854, which permitted them to buy unsurveyed land.12 For Americans of European background to acquire more land and greater security, it appeared that the Native American had to be “removed.” While the details of the removal differed from state to state, in essentials it did not. The press of settlement, microbes, malnutrition, negotiation, and war all played a part. In Missouri, tribes that were weak and helpless at the time white Americans entered the area were pushed aside easily. Others were bought off after the War of 1812, agreeing to exchange lands in Missouri for ones farther west in presentday Kansas and Oklahoma. By 1837, the Native American had been removed from Missouri. The fourteen thousand Cherokee, Choctaw, and Quapaw in Arkansas were easily removed, but their relocation to land directly west of the state (which would ultimately become part of the state of Oklahoma) would form a barrier to trade and westward expansion that would thwart development. In Iowa, Indian land cession was largely accomplished without violence, although there was the so-called Black Hawk War of 1831–32, in which Abraham Lincoln saw action. Cession of the southern half of Minnesota by the Sioux in 1851 led to massive settlement in that state. Pressed against the wall, the Santee Sioux struck back, but as a result of armed conﬂicts in 1858 and 1862, the number of Native Americans in Minnesota was greatly reduced.13 By the end of the Civil War, the lush eastern part of what would be the Eighth Circuit had been settled—at least those areas that were well watered and timbered and favored by good soil. The settlers swiftly reestablished the essentials of the life they had left behind—churches, schools, newspapers. Statehood was achieved by Missouri, Arkansas, Iowa, and Minnesota. The formal process was essentially the same from state to state. A territory was ﬁrst organized, and the major ofﬁcials [ 6 ]

INTRODUCTION

(including the territorial judges, who served for terms of years) responsible for its administration were appointed by the president. Then, after the population reached a certain threshold, a territorial legislature could be elected and a nonvoting delegate seated in the U.S. Congress. Finally, after the population reached a higher threshold, the territory could apply for statehood. Statehood meant, of course, full equality with other states and full participation in the life of the nation, though not, as will be seen, treatment in exactly the same way where the federal court system was concerned. The price that had to be paid for statehood was local assumption of the cost of paying for local ofﬁcials. Statehood was not, however, automatic but occurred at the end of a highly political process. Missouri was the ﬁrst of the states of the modern Eighth Circuit to achieve statehood, doing so in 1820, but not until the congressional debate over its admission had brought home to the nation the divisiveness of slavery. Under the Missouri Compromise, one free state (Maine) was admitted to the Union; one slave state (Missouri) was admitted; and slavery was banned in all the territory acquired through the Louisiana Purchase north of Missouri’s southern border. As a result, Arkansas was the only other state in the modern Eighth Circuit to have had slavery. Indeed, in the political maneuvering that preceded the adoption of the Missouri Compromise, the House of Representatives rejected by only two votes an amendment that would have banned importation of slaves into the Arkansas Territory and required ultimate emancipation. Nevertheless, Arkansas was admitted to the Union as a slave state in 1837, paired with Michigan. Iowa’s admission, too, hung on the slavery issue. After 1830, the territory of Iowa embraced most of Minnesota and part of the Dakotas. Northerners sought Iowa’s admission as a small state, which would leave open the possibility that several more free states could be carved from the Iowa Territory. Southerners wanted Iowa admitted as a large state, but they lost the battle. Iowa was admitted to the Union in 1846 as a relatively small state. After both Iowa and Wisconsin (1848) were admitted to the Union, Congress created the Minnesota Territory, which included the land from the Mississippi to the Missouri River north of Iowa. Settlement surged in southeastern Minnesota after the land cession by the Sioux in 1858. Admission came rapidly, although delayed brieﬂy because of the divisive battle over whether Kansas would be admitted as a free or slave state, a battle that poisoned American politics. [ 7 ]

INTRODUCTION

Thus, when in 1862 a circuit that greatly resembled what would become the Eighth Circuit was created, four states were charter members: Missouri, Iowa, Minnesota, and Kansas. Commerce in the area, dependent on waterways, thrived. Many river ports (most notably St. Louis) were centers for trade and for the outﬁtting of expeditions west. In those four states, the “Indian problem” had largely been solved. The potential of the area for agriculture was being realized. And yet, as rural as the region was, it had already been affected by the market revolution that was transforming the United States from a relatively simple preindustrial society into an increasingly complex, modern economy.14 The Eighth Circuit from 1862 to 1890

Land, Native Americans, Settlement For the United States as a whole, the period from 1862 to 1890 was an era of cascading vitality. Making use of abundant raw materials and rich soil and developing a superb system of transportation, America surged forward, fueled by a seemingly endless ﬂow of immigrants and a people driven by a spirit of enterprise and optimism. No small contribution to these extraordinary achievements was made in the Eighth Circuit, where an agricultural miracle was reaped, turning the United States into the world’s largest bread basket. The states on the prairies and Great Plains became integrated into a huge common market, drawn together by the telegraph, the telephone, and, most importantly, by railroads. A century after Alexander Hamilton had enjoined his fellow countrymen to “think continentally,” the frontier was closed on the Great Plains at the end of this period, concurrently with the addition of North and South Dakota (as well as Wyoming) to the Eighth Circuit. At the center of the economies of the states of the Eighth Circuit was land. Four great laws enacted during the Civil War brought new settlers to the prairies and facilitated the populating of the Great Plains. The Homestead Act of May 20, 1862, offered homesteads of 160 acres free after ﬁve years of settlement or for sale at $1.25 per acre after six months of settlement.15 The Morrill Act of July 2, 1862, granted to each state loyal to the Union 30,000 acres of government land for each member of Congress for the purpose of endowing at least one agricultural college in each state. Finally, in laws passed in 1862 and 1864, Congress authorized the construction of a transcontinental railroad and provided its [ 8 ]

INTRODUCTION

ﬁnancing by making available to the companies constructing it twenty alternating sections per mile of public domain in the states, forty in the territories. By 1871 the United States had given away 129 million acres, three times the size of New England. Much of the land acquired as a result of these enactments went to settlers rather than speculators.16 Standing in the way of the settlement of this land by the millions who would come from Europe and the eastern United States were the Indians of the Great Plains. The removal of Native Americans from the eastern part of the circuit and Nebraska had been relatively peaceful. Weakened by disease and dissipation caused by the white man, the Quapaw, Otoes and Osage, Sac and Meskwaki, Omaha, and Pawnee had been forced to cede their land. But the Sioux would not go so easily. The wagon trails west, trafﬁc on the Missouri River, discovery of gold in Montana, railroads, and the creation of the Dakota Territory stimulated white migration over the plains and into the hunting ground of the Hunkpapas and Northern Sioux. Hemmed in by ever-tightening bands of ranches, farms, and other settlements, the Sioux resisted. Fighting for their land and way of life, they negotiated aggressively and fought hard. At ﬁrst, the Sioux were limited to a vast reservation encompassing all of present- day South Dakota and much of North Dakota, but pressures from settlers inﬂuenced the federal government to attempt to force all the Indians from the open range onto smaller reservations, where they would be wards of the United States. The last of the great confrontations between white and Native American took place on the Great Plains. With the massacre at Pine Ridge in 1890, a century of Native American collaboration, resistance, and dissolution ended with subjugation and forced acculturation. Within the Eighth Circuit, there would be several large reservations in South Dakota, one shared by both Dakotas, and smaller reservations in Nebraska, Minnesota, and Iowa and on the Missouri-Nebraska border. Shocked by defeat, deprived of their land, weakened by disease, badgered by missionaries, reduced to dependency on government handouts, most of the Indians of the plains sunk into destitution.17 The states of the Eighth Circuit grew rapidly in population between 1862 and 1890. Although Missouri was the site of some of the most bitter ﬁghting of the Civil War, it became the nation’s ﬁfth largest state, as its population increased by more than 83 percent during the 1860s to 1.7 million people. By 1890, 2.7 million people lived in Missouri. In neighboring Iowa, the population grew from 675,000 in 1860 to 1,912,000 in [ 9 ]

INTRODUCTION

1890. Although immigration to Minnesota had slowed during the 1860s because of the Sioux uprising, it still grew from 172,000 to 440,000. Among its settlers were a large number of Scandinavians seeking cheap land, religious freedom, and the absence of class distinctions. Even in Arkansas, on the losing side during the Civil War, with a debtridden one-crop economy, proﬂigate government spending during Reconstruction, and widespread political corruption in the 1880s, population climbed from 435,000 in 1860 to 1,128,000 in 1890.18 The population of Nebraska, created as a territory and not open for settlement until 1854, surged after the Homestead Act. Over four million acres were distributed under the act between 1863 and 1873.19 Many of the purchasers were from Iowa, Illinois, and Pennsylvania. Although county government did not extend much beyond seventy-ﬁve miles west of the Missouri, Nebraska’s population was large enough (80,000) for statehood by the end of the Civil War, but that would be brieﬂy held up by Reconstruction politics. So that Radical Republicans in the Congress could demonstrate that the Congress could impose conditions either when state making or in letting states back into the Union, Nebraska was required to remove from its proposed state constitution a clause limiting the franchise to free white males. Nevertheless, Nebraska’s statehood was proclaimed on March 1, 1867, and it became part of the Eighth Circuit a few weeks later.20 Statehood and railroads would transform Nebraska from the place Americans traveled through, to a land of settled farmers. The state’s population grew to 1,063,000 in 1890.

Kansas and Colorado In 1862 Missouri, Iowa, and Minnesota were placed in a circuit that was renumbered the eighth in 1866. Arkansas was added at that time;21 Nebraska the following year. The other two states which would become permanent members of the Eighth Circuit, North and South Dakota, placed in the circuit in 1889, are discussed in the following chapter. Seven other states would temporarily be part of the circuit: Wisconsin (1863–66), Kansas (1862–1929), Colorado (1876–1929), Wyoming (1890–1929), Utah (1896–1929), Oklahoma (1907–29), and New Mexico (1912–29). Kansas and Colorado in particular were the sites of important federal jurisprudence between 1862 and 1890, so a brief discussion of their settlement is appropriate. Kansas was admitted to the Union as a free state on January 29, 1861, [ 10 ]

INTRODUCTION

after the violent struggle following passage of the Kansas-Nebraska Act (1854) over whether it was to be a slave or a free state. After the Civil War, Kansas developed a strong economy, based on wheat growing, ranching, manufacturing, and the production of oil and natural gas.22 The third circuit judge of the Eighth Circuit, David J. Brewer, was appointed in 1884 while he was a member of the Kansas Supreme Court. While eastern and central Colorado had been acquired by the Louisiana Purchase, the western part of the state was part of the spoils of the Mexican War. The discovery of gold in 1858 near present-day Denver led to the settlement of what became the Colorado Territory, created by Congress in 1861 out of the Kansas, Nebraska, Utah, and New Mexico territories. Although armed conﬂict with Native Americans followed, ranches and farms sprang up along the streams of Colorado in the early years of the territory. After it attained statehood in 1876, silver mining brought great wealth.23 A rich economy based on mining, farming, ranching, and manufacturing generated difﬁcult legal questions involving water rights, railroads, and the 1872 federal mining law.

Railroads No single factor was more important to the development of the states of the Eighth Circuit than the railroad, which closed distances, opened new territories to settlement, brought settlers, greatly increased the market for the sale of crops, made possible the creation of farm-related industries, created a profound demand for labor, and lured much business away from the river towns. While doing all of this, the railroads corrupted politics and became the most important source of litigation in the Eighth Circuit, spawning great legal issues over bridge construction, passenger and freight rates, as well as personal injury cases.24 The immense capital required for the construction of railroads came from national and state governments, towns, and private individuals— through land grants and the issuing of bonds. It was the attempted repudiation of bond obligations by municipalities that brought about the most controversial litigation in the circuit courts of the Eighth Circuit between 1862 and 1890. Relatively little railway building went on in the states of the Eighth Circuit before the end of the Civil War, although the Chicago and Rock Island Railroad reached Iowa in 1854, making it possible to go from Rock Island to New York in forty-two hours.25 Although Iowa would [ 11 ]

INTRODUCTION

come to have more railroad mileage than any state in the Union, in 1860 there were only 655 miles of track in the state.26 At the beginning of the Civil War, only one railroad in Missouri, the Hannibal and St. Joseph, had completed its 810-mile line. The only railroad line in Arkansas on which much progress had been made before the outbreak of war was the Memphis and Little Rock line, which, although badly damaged by Mississippi River ﬂoods of 1857, proved to be a ﬁrst step in the economic domination of Memphis over eastern Arkansas.27 The ﬁrst railroad did not come to Minnesota until 1862. Railroad construction surged after the Civil War. By 1870, approximately 1,200 miles of rail had been laid in Missouri. The construction of the great Eads Bridge over the Mississippi tied Missouri into the emerging national railroad network. Within ﬁve years of Minnesota’s ﬁrst line, there was a connection to Chicago and the East. After track was laid from St. Paul to Duluth in 1870, what had been a bone crunching weeklong stagecoach ride took but a single day. Arkansas was somewhat of an exception because the “boodling” of state ofﬁcials and the “peculations” of outsider ofﬁcials kept the operating and construction companies strapped for funds. Only 256 miles of track were laid in Arkansas before 1870. By 1880, that number had risen to 859, and by 1890 to 2,200.28 The great impetus for railroad growth in Iowa (as in Nebraska) was the transcontinental railroad. The eastern terminus of the Union Paciﬁc would be Council Bluffs. By 1870, there were four railroads running across Iowa, and the state was crossed by 2,683 railroad miles. The completion of the Chicago–Sioux City connection in 1868 began the recentering of the upper Missouri trade from Saint Louis to Chicago. The bridge connecting Iowa with the Union Paciﬁc at Council Bluffs was not built until 1873, but by 1880, Iowa ofﬁcials were boasting that no one in the state lived more than twenty-ﬁve miles from a railroad station.29 Nearly one-sixth of Nebraska was given away to railroad companies to ﬁnance construction. East of the Mississippi, the railroad had to take account of towns, but on the northern Great Plains, it was the railroad that determined their placement. As the railroad crews moved across the land, movable cities of “pimps and prostitutes, saloon keepers and gamblers, lawmen and criminals followed.” In time, families became more numerous; towns grew; schoolhouses, churches, and grist mills appeared. Rail mileage continued to surge in Nebraska after the trans[ 12 ]

INTRODUCTION

continental railroad was completed, climbing from 1,900 in 1880 to 5,100 in 1890.30 By 1873 ﬁve railroads would span the West. The eastern terminus of four of them was in the Eighth Circuit: the Great Northern (completed in 1883, its terminus in the Twin Cities); the Union Paciﬁc/ Central Paciﬁc (1869/1873, Omaha/Council Bluffs); the Great Northern (Duluth); Atchison, Topeka and Santa Fe (1881, Topeka). Nebraska, Iowa, Minnesota, and Missouri were thus joined with lands to the west as well as with eastern markets. The Mississippi River, once a dominant highway, had become a mere feeder for railroads.31

Farming and Other Commerce The primary business of the Eighth Circuit was farming, leaving its inhabitants dependent on the weather and on outsiders to transport, store, and buy their crops. The climate was suitable enough for the “world’s breadbasket” but could be particularly harsh on the plains, where, during the 1870s, there was a prolonged drought, vicious dust storms, and plagues of locusts. A little more than a decade later, during the winter of 1887–88, there were extremely low temperatures and blizzards of extraordinary magnitude. There were also farm depressions; one began in 1868 and lasted for much of the 1870s, and during the 1880s the price of wheat declined dramatically throughout the world. Nevertheless, it is possible to overstate the plight of the farmer in the Eighth Circuit during this period. New (or newly made available) inventions and their improvements, such as the horse - drawn corn planter, the riding straddle row cultivator, the heavy gang plow, and McCormick’s reaper greatly increased farm productivity, as did the introduction of drought-resistant forage crops and techniques of dry farming. Crop yields nearly tripled in the quarter century after the Homestead Act, and farmers also proﬁted from cheaper manufactured goods and higher land values.32 But if it appears a century later that the lot of the farmer was improving between 1862 and 1890, generally it did not appear so to the farmers of the Eighth Circuit at the time. Experiencing high interest rates, inadequate credit, monopolistic marketing, and high prices for farm machinery and other necessities, farmers felt exploited by eastern moneyed interests, railroads, and grain elevators. With lives and fortunes held hostage, westerners saw their states as colonies of a not very [ 13 ]

INTRODUCTION

benevolent imperium. Such agricultural discontent would bring about the Granger laws, the constitutionality of which would be argued in the courts of the circuit.33 The growth of railroads did stimulate the growth of new industries— cattle ranching in Kansas and Nebraska, stockyards in St. Louis and Kansas City, meatpacking in Iowa, ﬂour milling in Minneapolis. Other agriculturally related industries developed in the region, such as the manufacture of agricultural implements in Iowa. Nebraska experienced a sevenfold growth of manufacturing in the 1880s. The Twin Cities, Kansas City, and Omaha became large centers of commerce similar to St. Louis, now in decline. Though smaller, Duluth became an important commercial center as a result of its proximity to the Mesabi Range and location on Lake Superior. Iron in Minnesota, silver in Colorado, and lead and zinc in Missouri contributed to the region’s economy from beneath the ground. During the nineteenth century, the major characteristics of the states of the Eighth Circuit that affected its work were both the region’s expanse and isolation and the factors that diminished its isolation and linked it to the rest of the Union: rivers, steamboats, and particularly railroads; a complex systems of land titles; a Native American population, seen as a barrier to settlement and growth; and the region’s volatile agricultural economy which, although it was slowly being diversiﬁed, nevertheless left a residue of deep resentment against the banks and industries of the eastern United States, as well as against the railroad corporations.

[ 14 ]

chapter 1 +++++++

“An Empire in Itself” The Eighth Circuit before 1891

he ﬁrst Eighth Circuit state to be admitted to the federal judicial system, Missouri, was made a judicial district in 1822 with a district judge who exercised circuit court jurisdiction. The state would not become a full-ﬂedged part of the lower federal court system until 1837. The ﬁrst circuit resembling the modern Eighth Circuit, numbered the Ninth, was created in 1862 and included Iowa, Missouri, Illinois, and Kansas. By 1867 there was an Eighth Circuit, which included those four states plus Nebraska. Colorado would be added in 1876, the Dakotas and Wyoming in 1889–90. Between 1862 and 1890, the federal courts of the Eighth Circuit helped to expedite the settlement of the West by settling disputes over land and commerce, facilitating the growth of the region’s infrastructure, helped unleash the creative energies of a market economy, enforced federal law, and handled, with greater sensitivity than most, ofﬁcial government cases involving Native Americans. The Role of the Federal Court System and Establishment of the Eighth Circuit One of the earliest achievements of the ﬁrst congressional session under the U.S. Constitution was the establishment of a federal court system. Many participants at the Constitutional Convention believed that a federal court system was necessary to adjudicate disputes between states, create a common body of law to govern maritime commerce, protect [ 15 ]

“AN EMPIRE IN ITSELF”

out-of-state litigants from the prejudice of local juries, and enforce treaty obligations and federal law. Nevertheless the Constitution speciﬁcally provided for one Supreme Court and left it to Congress to “from time to time ordain and establish . . . inferior courts.” During the struggle over ratiﬁcation of the Constitution, considerable concern was expressed about the problems that a strong federal court system might cause: unnecessary expenses, hardships for litigants and witnesses, and the risk that federal courts might ultimately absorb the courts of the states.1 In the end, the ﬁrst Congress created a specialized court system limited in reach. Three tiers of courts were established, staffed by two tiers of judges. State lines were followed in establishing the lowest tier—the district courts. District courts were established in each of the existing eleven states, one judge to a district. No district crossed a state border. The district judges were to be residents of their districts, and the custom would shortly evolve of state politicians (particularly members of the U.S. Senate of the president’s party) playing a central role in the judges’ selection. Each district court was required to employ the procedures of the state courts of the state in which they were located. Initially the district courts were expected primarily to be admiralty tribunals. They were given exclusive jurisdiction over admiralty and maritime cases, as well as over most customs matters and minor federal crimes. The district courts were given concurrent jurisdiction with state courts over suits brought at common law by the United States, where the amount involved was over $100. The intermediate tier of courts, the circuit courts, also essentially followed state lines. At ﬁrst, three circuits were created for the regions of a nation whose states were all located east of the Appalachians. While each circuit—the East, the Middle, and the South—encompassed several states, the circuit courts were to hold two terms annually in each district (the district corresponding to the district of the district court) and were to be composed of two justices of the U.S. Supreme Court and the district judge from the particular district. Within a few years, the law was modiﬁed to permit the circuit court to be composed of one Supreme Court justice and one district judge. The circuit courts were given both appellate and trial functions. They were authorized to review the district courts by writ of error in civil cases in which the matter in controversy exceeded $50 and to review on appeal ﬁnal decrees in admiralty cases in which the matter in controversy exceeded $300. However, their trial functions were more [ 16 ]

“AN EMPIRE IN ITSELF”

important. The circuit courts were the federal courts of general trial jurisdiction. The circuit courts were given exclusive jurisdiction over serious federal crimes, and concurrent jurisdiction with the state courts over cases where the United States brought suit for an amount above $500, as well as in controversies between citizens of different states where the amount in question was above $500. The First Judiciary Act also provided for removal to federal court, before trial, of certain types of private civil litigation begun in state court, including actions where the defendant was an alien or a citizen of another state and the amount was over $500, as well as over certain land title actions. Congress had not attempted through the First Judiciary Act to give the full range of jurisdiction possible for the federal courts, nor had it attempted to remove the federal court system from state inﬂuence. The district courts were locally based, and the circuit courts were organized on a local basis. Exclusive federal jurisdiction was severely circ*mscribed, while in most matters, state courts retained concurrent jurisdiction with the lower federal courts. Regional, state, and local inﬂuences competed with national ones.2 Although members of Congress viewed what they had created by the First Judiciary Act as an experiment, fully expecting that it would soon have to be modiﬁed, much of what they created lasted for a century, and some endures to this day.3 Not until 1875 was federal jurisdiction greatly expanded. The appellate functions of the circuit courts would survive until 1891, when the courts of appeals were created, while the circuit courts themselves lasted until 1911. A three-tiered federal court system remains with us today. More than inertia has been involved in the perpetuation of the structure of the federal courts. National courts, organized on state and regional lines and staffed according to national and state interests, embodied the mixture of centralization, regionalism, state centeredness, and localism that characterizes the American federal system. Furthermore, the First Judiciary Act reinforced the judicial independence established by the Constitution by failing to provide a mechanism to review the manner in which lower federal court judges administered their caseload. No central administration of the judicial branch was established. No minister of justice, no home ofﬁce, not even a chief justice, could command the decentralized lower courts. The only control of federal judges would come through appellate reversals for errors of law and through impeachment.4 Perhaps the most important function of the circuit courts during the [ 17 ]

“AN EMPIRE IN ITSELF”

early years of the Republic was that they brought the federal government visibly to the people. Adapting an English tradition that was hundreds of years old to the needs of the new national government, the circuit courts became important agents of political socialization, employing grand jury charges as lectures on the meaning of the new Constitution. On the other hand, the judicial system established by the First Judiciary Act brought great hardships on justices, judges, lawyers, litigants, witnesses, and jurors. In the early years of the Republic, travel was expensive, difﬁcult, unreliable, and disliked—by Supreme Court justices and the average litigant as well. Although the three-tiered system of the First Judiciary Act would survive without major change for over a century,5 it had to be adapted to a nation that would expand from the Appalachians to the Paciﬁc. Indeed, one of the beneﬁts of statehood for most states was to leave behind their territorial courts, all too often staffed by politicians unable to ﬁnd a sinecure elsewhere (Iowa, with a distinguished territorial judiciary, was a notable exception). The expansion of the federal judiciary was accomplished in a number of ways: by adding to the number of states in a circuit; by expanding the number of circuits and appointment of Supreme Court justices to ride those circuits; and by creating district judgeships in states newly admitted to the Union and authorizing those judges to hold the local circuit court themselves. Since the jurisdiction of the federal courts was continually increased and the U.S. population also increased while litigiousness rarely declined, Congress was also frequently required to resort to ad hoc expedients, such as the creation of more than one district in a state, as well as altering the terms and places of court sessions. Not a session of Congress passed without some such legislation. The states that would make up the modern Eighth Circuit were admitted to the federal judicial system through one or another of these expedients. Soon after Missouri was admitted to the Union, it was made a judicial district with a district judge who exercised circuit court jurisdiction.6 That also happened with Arkansas.7 Westerners felt that they were not being treated equally, and complained. As Senator John H. Eaton of Tennessee (then in the West) put it in 1825: “The Western country had not had a fair dealing on the subject, and, until they should be placed on the same footing with the other States of this Union, as respected their Judiciary, they would never cease to complain and to ask redress.” 8 Finally, in 1837, Missouri and Arkansas received treatment equal to the other states. By the Act of March 3, 1837, Congress added [ 18 ]

“AN EMPIRE IN ITSELF”

two members to the Supreme Court and divided the United States into nine circuits.9 Missouri was placed in the Eighth Circuit with Tennessee and Kentucky, while Arkansas, admitted to the Union less than a year before, was placed in the Ninth Circuit.10 That this legislation did not prove to be a panacea for either the state or the circuit is suggested by Justice John McKinley’s report to Congress the year after its passage. McKinley, who had traveled ten thousand miles the previous year to attend the terms of the Supreme Court and those of the circuit courts for Alabama, Louisiana, and Mississippi, wrote: “I have never yet been at Little Rock, the place of holding the court in Arkansas; but from the best information I can obtain, it could not be conveniently approached in the spring of the year, except by water, and by that route, the distance would be greatly increased.” 11 The steady growth of the business of the Supreme Court, the admission of new states to the Union, three vacancies on the Supreme Court, and the effects of the Civil War led Congress to reconﬁgure the circuits in 1862. Both Iowa (admitted to the Union in 1846) and Minnesota (admitted in 1858) were, at the time, outside the circuit system, as were Florida, Texas, Wisconsin, California, Oregon, and Kansas. Shrewd politics during consideration of the circuit bill netted a seat on the Supreme Court for Iowa’s Samuel Freeman Miller. The astute lobbying of Senator James W. Grimes and Representative James F. Wilson ensured that Iowa would not be placed in a circuit where Miller would encounter direct competition with other leading aspirants for the High Court, especially Orville H. Browning and David Davis of Illinois and Secretary of the Interior Caleb B. Smith of Indiana. Iowa’s legislature passed a resolution on March 10, 1862, urging its congressional delegation to battle for a suitable circuit and petition Congress to grant its wishes. To separate Iowa from Illinois and Indiana, there was a call for a trans-Mississippi circuit. It was argued that the commerce and trade of Iowa, Minnesota, Missouri, and Kansas were connected by the Mississippi and Missouri rivers; that the four states had similar codes of practice; that they were “all more or less affected by the old Spanish and French [land] grants”; and that territories that would ultimately receive statehood could be added conveniently to a circuit of those four states.12 And so, by the Act of July 15, 1862, a new Ninth Circuit was created.13 During the rest of the decade, Congress tinkered with the circuit courts. Among the smaller modiﬁcations pertinent to this study, Wisconsin (which in 1862 had been placed in the Eighth Circuit with Michigan [ 19 ]

“AN EMPIRE IN ITSELF”

and Illinois) was placed in the Ninth Circuit in 1863,14 but when following the Civil War the readmission of the Southern states required yet another reordering of the circuits, Wisconsin in 1866 was placed in the Seventh Circuit (with Indiana and Illinois) and Arkansas in a renumbered Eighth Circuit, which also contained Iowa, Missouri, Kansas, and Minnesota.15 Less than a year later, Nebraska, which had in the meantime been admitted to the Union, was added to the Eighth Circuit.16 The next three territories to be admitted as states—Colorado (August 1, 1876), North and South Dakota (November 2, 1889), and Wyoming (July 10, 1890)—were all added to the Eighth Circuit. Indeed, all states newly admitted to the Union between 1866 and 1929 were assigned to either the Eighth Circuit or the Ninth. Thus, by the time of the Circuit Court of Appeals Act of 1891, the Eighth Circuit was spoken of as “an empire in itself ” because of its vast and varied area.17 In 1869 Congress took a major step toward reorganizing the federal judicial system. Relieving the overburdened Supreme Court was the major goal. To reduce the attendance of the justices on circuit to a single term every two years, nine circuit judgeships—one for each circuit—were created by the Act of April 10, 1869.18 The circuit court could be held by the circuit justice, the circuit judge, or a district judge; any two were empowered to sit as a panel. While this reform did not achieve its major purpose, it proved useful in enabling the circuit courts to deal with the increase in the volume of cases they would confront after the federal courts were given the full range of federal jurisdiction in 1875. During the years between passage of the Act of April 10, 1869, and of the Circuit Court of Appeals Act of March 3, 1891,19 the circuit justice for the Eighth Circuit, Samuel F. Miller, rode circuit in the spring and summer, generally convening half of the circuit courts. In 1877, for example, Miller embarked on his circuit on May 6. He held a term in Des Moines during the last two weeks of May, at Leavenworth and St. Paul for ten days each in June, and in Denver from July 3 to 15.20 The work could be fatiguing for a sixty-year-old man. Miller wrote in 1879 that, after sitting for six weeks in very hot weather, hearing “heavy mining and railroad cases in which every move of the court involved millions of dollars, and the personal feelings of clients invaded the court room too visibly in the ill concealed temper of their lawyers,” he had developed “a shaky hand, an interrupted pulse, and strong evidences of heart trouble,” and was “coming very near [to] breaking down.” 21 Because of the great increase in the volume of business—the number [ 20 ]

“AN EMPIRE IN ITSELF”

of cases in the circuit increased tenfold during the ten years John F. Dillon was circuit judge (1869–79)22—much of the work of the circuit court came to be handled by district judges.23 However, at times the circuit justice, circuit judge, and district judge might each be holding court in neighboring rooms.24 Most of the circuit business was trial, not appeal. The range of cases could be vast. Riding circuit in the 1880s, Judge David J. Brewer heard patent, trademark, and copyright cases; cases involving railroad lands, pensions, and federal elections; litigation brought by, against, or about Native Americans and foreign corporations; and conﬂicts over state boundaries. Criminal cases were relatively few, save in the Circuit Court for the Western District of Arkansas, which embraced the lawless Indian Territory.25 The Judges

Samuel F. Miller Samuel Freeman Miller, the man whose potential appointment as circuit justice shaped the contours of the Eighth Circuit, was a jurist of great ability and considerable force of personality. Besides wielding considerable inﬂuence on the U.S. Supreme Court between 1862 and 1890, Miller was a conscientious circuit justice, who maintained close relations with the judges in the Eighth Circuit, and a superb trial judge. Miller was born on April 5, 1816, in Richmond, Kentucky, which was located in the bluegrass country in the central part of the state. Raised on a farm, Miller earned an M.D. from Transylvania University in Lexington, then practiced medicine in a town of two hundred in the Cumberland Mountains in southern Kentucky. Bored and frustrated with medicine, Miller educated himself in the law and in 1847 was admitted to the county bar. Believing in gradual manumission, Miller saw no future for himself in a state where pro-slavery sentiment was growing. In 1850 he moved to Keokuk in southeastern Iowa, a thriving city of three thousand, located where deepwater navigation of the Mississippi became possible. The Iowa to which Miller moved was developing rapidly. Settlement had begun less than twenty years before. Free of physical barriers and Native Americans, with all its rich land suitable for either agriculture or livestock grazing, with great rivers on its borders and smaller rivers cutting through the state, settlement exploded. Iowa was opened, [ 21 ]

“AN EMPIRE IN ITSELF”

organized, and attained statehood in less than a single generation. By 1870, forty years after it was open to settlement, all parts of Iowa had been settled. Most of Iowa’s settlers came from Pennsylvania, Indiana, and Ohio, bringing the institutions and values of New England to the state—a belief in education for learning and moral guidance, the Protestant work ethic, utilitarianism, and a strong impulse toward social reform.26 Though some settlers came from the South, the impulse Iowans had toward social reform included an abhorrence of slavery, although they did not eschew racism. Indeed, in 1851, the Iowa legislature passed a law, never put into effect, that barred free blacks from coming into the state.27 So, in moving to Keokuk, Miller had settled in an important commercial center, where his fellow members of the bar included George W. McCrary and Henry C. Caldwell, later both to be circuit judges for the Eighth Circuit. Miller would also ﬁnd in Iowa fertile soil for his Whig political beliefs in public education, federal involvement in internal improvements, and unrestricted immigration. The tensions caused by the Kansas-Nebraska Act propelled the antislave Miller into the Republican Party, which quickly took root in Iowa. By 1860, Miller was one of the leading political ﬁgures in Iowa. Although in the following year he was defeated by the popular incumbent, Samuel Kirkwood, when he sought the Republican nomination for governor, Miller would soon be rewarded by his party with a seat on the U.S. Supreme Court. On that appointment, a not entirely unbiased hometown newspaper wrote that Miller was “the model of the beau ideal Western Lawyer and Western Judge and his advent to the bench cannot fail to create a sensation even in that fossilized circle of venerated antiquities which constitutes the Bench of the Supreme Court of the United States.” 28 It is unlikely that Miller created a sensation when he reached the High Court, but he would go on to a career of great distinction, holding his own with colleagues of the caliber of Stephen J. Field and Joseph Bradley. In twenty-eight years, Miller wrote 616 majority opinions for the Supreme Court, as well as 169 dissents. More statesman than lawyer, Miller was an able judge, but not a scholar, caring more “about what was needed than what courts earlier had decided, more about the logic of events than the logic of law.” 29 Where constitutional cases were concerned, Miller was a workhorse and left an enduring mark on the law. He was part of the bare majority upholding the exercise of executive power in the Prize cases.30 Miller’s [ 22 ]

“AN EMPIRE IN ITSELF”

approach to cases involving Reconstruction was one of judicial restraint. His construction of the Fourteenth Amendment in the Slaughterhouse cases limited its reach, reﬂecting the view that the Civil War had not made any radical change in the relationship between the federal government and the states but had been fought principally to protect the rights of the freedmen (a promise that took ninety years to keep).31 Sharing some of the agrarian radicalism of his adopted state, Miller would, as circuit justice, confront the dilemma of having to implement decisions of the Supreme Court enforcing municipal bond obligations—decisions with which he was unsympathetic—even to having to place local ofﬁcials in jail for contempt. Sharing some of Iowa’s agrarian radicalism, Miller considered the bond-holding class selﬁsh and conniving, believing that their “only object in life seems to be [to] have their golden egg, shell meat and although they destroy the goose from which they know it must come if it come at all.” 32 As circuit judge for the Eighth Circuit, Miller worked hard and maintained close relations with the circuit and district judges (although he constantly angled for the appointment to the Supreme Court of his brotherin-law, William P. Ballinger, over the Eighth Circuit judges John Forrest Dillon and Henry C. Caldwell). Miller seems to have been a ﬁrst-rate trial judge—industrious, fast on his feet in ruling on motions, disposing of court business with dispatch. He avoided hung juries and controlled the lawyers in his courtroom. While generally retaining the respect of attorneys, Miller could be so intolerant of genteel sophistication, garrulity, and legal mumbo-jumbo that one attorney stated that he did not care to go into his courtroom to be “stamped upon by that hippopotamus.” 33 A vigorous man of indomitable will, six feet tall and weighing over two hundred pounds, Miller was a “westerner” who, as one biographer wrote, “liked to ride a horse, dance a jig, sing a song,” “a laughing, living, hating, feeling man with the ﬁre of youth and the courage of the warrior.” 34 Easy and natural of manner, Miller’s kindly smile inspired adoration from the pages of the Supreme Court. Never wealthy, Miller died intestate; his cash assets—the balance due on his salary, money from the sale of his law books, and what could be gleaned from publication of his law school lectures—barely met the bills that were due. On Miller’s death, his casket was taken by rail to Burlington, Iowa, and thence to Keokuk, where the buildings in the downtown were draped in black. There his body laid in state in the courtroom, where throngs came to pay their respects.35 [ 23 ]

“AN EMPIRE IN ITSELF”

John Forrest Dillon (1869 –79) The ﬁrst circuit judge for the Eighth Circuit, John F. Dillon, was, as practitioner, professor, scholar, and judge of both state and federal courts, one of the most inﬂuential shapers of nineteenth-century constitutional law. Dillon was born in upstate New York in 1831 but moved with his family to Davenport, Iowa, in 1838. His early life was marked by hardship and poverty. Like Miller a physician before he was an attorney, Dillon’s career as a doctor was cut short by a hernia, which made it difﬁcult for him to continue the horseback riding that was required to practice medicine on the frontier. Dillon was admitted to the bar in 1852 and shortly thereafter became county attorney. In 1858 he was elected judge of Iowa’s Seventh Judicial District. Six years later, he was elected to the Iowa Supreme Court and became its chief justice in 1867. President Ulysses S. Grant appointed Dillon the ﬁrst circuit judge for the Eighth Circuit, and Dillon took up his duties on December 22, 1869. Serving as circuit judge for the Eighth Circuit was no sinecure. Dillon held terms in each district, requiring about ten thousand miles of travel each year. Yet he was able to teach medical jurisprudence at the University of Iowa, found and edit for one year the Central Law Journal and write three treatises: the 808-page Treatise on the Law of Municipal Corporations (ﬁrst published in 1872); a 138-page book, Removal of Causes from State Courts to Federal Courts (1875); and a sixty-three-page work, The Law of Municipal Bonds (1876). Dillon’s treatise, which remedied the almost total lack of accumulated knowledge about municipal corporations, as well as a work by Thomas A. Cooley,36 would be the sources most cited by judges, attorneys, and delegates to constitutional conventions seeking to limit what cities might do under delegated police powers and taxing power.37 Certain passages from Dillon’s book became standard citations for the restrictions on the taxing and spending powers of states and local governments. They supplied the bar with numerous constitutional principles on which to restrict the powers of legislative bodies and popularized within the profession principles encompassing laissez-faire policies desired by much of the emerging business class. Dillon’s treatise stressed the constitutional constraints on municipal bond repudiation and fostered the notion of an interventionist judiciary resisting political pressures. Meanwhile, from the bench, Dillon began to articulate principles that would ultimately be employed by businesses seeking freedom from [ 24 ]

“AN EMPIRE IN ITSELF”

government regulation. The ﬁrst such, which became known as “Dillon’s Rule,” was the principle that municipal corporations were “mere tenants at will of the legislature,” which could create, destroy, abridge, or control them.” 38 His second principle was that taxation had to be for a public purpose. If that concept is more properly credited to Cooley, Dillon added to it his weight as judge and treatise writer. Dillon wrote the opinion in Hanson v. Vernon, in which the Iowa Supreme Court held invalid a statute that authorized counties and cities to levy taxes for the purpose of subsidizing private railroad corporations.39 The courts were, Dillon wrote, not at liberty to strike down laws on the ground that they conﬂicted with judicial notions of natural rights and sound public policy. However, the court held that because the tax had appropriated private property for private purposes (to assist railroads, which were private corporations organized for the proﬁt of their investors), it was not in the nature of a law. Furthermore, the citizens affected by the statute had been deprived of their property without due process of law.40 While the Iowa Supreme Court would overturn its own decision a year later,41 the public-purpose maxim would gain widespread approval after 1870 as state legislatures and state constitutional conventions considered enacting restrictions on the functions of cities, their debt ceilings, and tax structures.42 When Dillon resigned from the circuit court in 1879, he was probably the best-known lower federal court judge in the nation. He moved to New York and became perhaps the nation’s leading railroad attorney, living until 1914. Within a dozen years, Dillon the attorney and scholar would urge a philosophy of constitutional conservatism and a standard of judicial review not far from that of the most outspoken advocates of laissez-faire.43 But that was later. As shall be seen in discussion of the Granger cases, Dillon the circuit judge had been far more ﬂexible.

George Washington McCrary (1879 –84) George Washington McCrary, who served with distinction in the legislative and executive branches of the federal government, succeeded Dillon as circuit judge. McCrary was born near Evansville, Indiana, in 1835. He moved with his family when he was two years old to Van Buren County, Iowa, then the “edge of the frontier.” Reading law in the ofﬁce of John W. Rankin and Samuel F. Miller, McCrary was admitted to the bar and became active in politics as a Republican, serving in the state legislature from 1858 to 1861. [ 25 ]

“AN EMPIRE IN ITSELF”

From 1869 to 1877, McCrary was an inﬂuential member of Congress. He served on the committee that investigated the Credit Mobilier scandal. McCrary took the lead in ﬁghting for reform of the federal judiciary by sponsoring a bill, which passed the House of Representatives, aimed at correcting the two great problems in judicial administration of the time—lack of speedy justice in the courts of ﬁrst instance, and lack of reasonable and prompt review. The bill, which never emerged from the Senate Judiciary Committee, would, among other things, have established an intermediate appellate court in each circuit.44 McCrary also played a leading role in the crisis over the presidential election of 1876, making an important contribution to the formation of the Electoral Commission and participating in its proceedings. When Rutherford B. Hayes became president as the result of the decision of the commission, he appointed McCrary secretary of war. In that position, McCrary was responsible for withdrawing federal troops from the “carpetbagger” governments of South Carolina and Louisiana and for dispatching federal troops during the great railroad strike of 1877. McCrary’s old mentor and friend Samuel F. Miller strongly recommended McCrary as Dillon’s replacement in 1879. An able jurist, McCrary edited for publication ﬁve volumes of decisions of the circuit courts of the Eighth Circuit for the years 1873 to 1883.45 McCrary, like Dillon, succumbed to the blandishments of railroads, resigning his judgeship in 1884 to practice law in Kansas City and serve as counsel to the Atchison, Topeka and Santa Fe. McCrary died in St. Josephs, Missouri, in 1890 and is buried in Keokuk.46

David J. Brewer (1884 –89) David J. Brewer, the third circuit judge of the Eighth Circuit, would, after six years in the position, be elevated to the Supreme Court. At one time, Brewer was considered one of the great justices of the Supreme Court by observers as astute as Felix Frankfurter and Jerome Frank, but his reputation has slipped considerably. Yet his most recent biographer concludes that Brewer went beyond the dictates of the legal formalism of his time to establish a more pragmatic jurisprudence, one better suited to addressing the multitude of problems created by the rapid and unsettling changes of his own time.47 The son of a missionary, Brewer was born on June 20, 1837, in the ancient Greek city of Smyrna (now Izmir, Turkey). His mother, Emilia A. [ 26 ]

“AN EMPIRE IN ITSELF”

Field, was the sister of Justice Stephen J. Field, David Dudley Field (the great codiﬁer of law), and Cyrus W. Field, developer of the transatlantic cable. Brewer grew up in New England and graduated from Yale. He then read law with David Dudley Field, attended Albany Law School, and was admitted to the New York bar. After an unsuccessful attempt at prospecting for gold on Pike’s Peak, Brewer settled and practiced law in Leavenworth, Kansas, a river town and a center for overland freight and staging. In 1861, Brewer was appointed commissioner of the U.S. Circuit Court for the District of Kansas, which brought in a few extra dollars in fees for preparing warrants and other routine paperwork.48 Then, beginning in 1862, in swift succession Brewer was elected to serve as a county probate and criminal court judge, as a state district judge, and as county attorney. In 1870 he was elected to the Kansas Supreme Court. As a member of the Kansas Supreme Court for fourteen years, Brewer was a workhorse—writing some four hundred opinions within three years of ascending the bench. On that court, Brewer’s decisions in railroad liability cases often went against the railroad, and he supported state and local taxing power over railroad property. He wrote opinions holding unconstitutional laws allowing counties and localities to purchase stock in railroad companies, and paying for stock by local bond issues.49 The use of public monies for private purposes always disturbed Brewer. In cases involving women’s rights, Brewer was unusually progressive for his time, but in a dissent he voted to uphold racially segregated schools.50 Brewer also dissented in State v. Mugler,51 arguing that the state’s prohibition on the manufacturing of intoxicating liquors was unconstitutional as a taking of private property for public use without compensation. He came to the same opinion as a circuit judge.52 The U.S. Supreme Court ultimately sustained his position in the Mugler case. Brewer, recommended for the circuit judgeship when Dillon resigned, was passed over for McCrary but received the position in 1884 from President Chester Alan Arthur, who chose Brewer over former Kansas attorney general A. L.Williams. A candidate for elevation to the Supreme Court in 1889, Brewer wrote a letter to a friend in support of Judge Henry B. Brown of the U.S. District Court in Michigan. President Benjamin Harrison reportedly was so impressed by Brewer’s generosity that he chose him for the position over Brown.53 Brewer was conﬁrmed by a vote of 52–11 over opposition from prohibitionists, the Kansas State Grange, the senators from North and South Dakota (their noses out of joint because Brewer had [ 27 ]

“AN EMPIRE IN ITSELF”

appointed Kansas and Nebraska men as clerks of court in the Dakotas), as well as from senators from Arkansas, who were critical of Brewer for having convicted some of their constituents for using “harsh language to a colored man.” 54 In his twenty-year career on the Supreme Court, Brewer replaced his uncle Stephen J. Field as the Court’s preeminent judicial conservative. Brewer was enough of a legal formalist to often be against legislative action and against regulation while being a staunch defender of judicial review. His constitutional views on property may be suggested by his dissent in Brass v. North Dakota, a case in which the Supreme Court sustained by a 5–4 vote a North Dakota law regulating maximum charges by grain elevators. Brewer concluded: “I can only say that it seems to me that the country is rapidly traveling the road which leads to the point where all freedom of contract and conduct will be lost.” 55 Few justices have come close to the number of speeches, writings, and interviews covering controversial and public topics as Brewer. He decried attacks on property through taxation, eminent domain, and the use of the policy power. Yet he also denounced the evils of big business, found “much of good” in labor unions, and supported the forfeit of all property to the government at death. Brewer also attacked the shameful treatment of African Americans, Native Americans, and Chinese in the United States. He was a supporter of women’s rights, even predicting a female president. An anti-imperialist and antimilitarist, Brewer was a strong supporter of an international court of arbitration. He served with Chief Justice Melville Weston Fuller on the international tribunal that arbitrated the conﬂict between Venezuela and Great Britain over the disputed boundary between Venezuela and British Guiana. Coauthor of a treatise in international law,56 Brewer presided at the 1904 International Congress of Lawyers and Judges in St. Louis. Jurisprudence Before turning to the actual jurisprudence of the circuit courts of the Eight Circuit during the years between 1862 and 1890, it would be wise to pause and consider the role that the federal courts played during this period in the development of national law. Although the lower federal courts continued to be limited and specialized courts throughout this period (by far the greater share of important lawmaking continued to be the work of state courts), their importance [ 28 ]

“AN EMPIRE IN ITSELF”

had greatly increased. In 1862 the jurisdiction of the lower federal courts had primarily encompassed admiralty and maritime matters and suits brought under certain federal laws—especially patent, copyright, and bankruptcy, but also including a large number of miscellaneous statutes—as well as acting as a forum for lawsuits between citizens of different states. As a result of Civil War and Reconstruction, Congress greatly extended federal jurisdiction by providing in many instances for removal of cases from state courts, as well as by granting the federal courts federal question jurisdiction concurrent with state courts in all matters exceeding $500. The result over time was to transform the federal courts from “restricted tribunals of fair dealings between citizens of different states . . . [to] become the primary and powerful reliances for vindicating every right given by the Constitution, the laws and treaties of the United States.” 57 But such a transformation did not truly occur in the federal courts as the role of the federal government and the federal courts remained limited. Most of the “governing” occurring in the United States during this period was performed by states and localities. Thus the dockets of the lower federal courts of the Eighth Circuit from 1862 to 1890 were largely made up of the “classic” federal staples—bankruptcy, patent, copyright—cases resulting from the relatively small number of federal criminal and revenue laws, a few new areas of federal jurisdiction (such as trademark), and diversity of citizenship cases. Throughout American history, the lower federal courts have generally performed at least four functions.58 First, like almost all courts, they settle disputes between some combination of persons, governments, and corporations. Second, the courts offer a forum for the enforcement of such centralizing policies as the collection of federal taxes or the protection of interstate commerce. The lower federal courts have proved much more likely than the state courts to protect out-of-state commercial interests from state legislatures. Third, the federal courts have also acted as a brake on centralizing tendencies. For example, from 1862 to 1890, living and working in their communities, the circuit and district judges (and even the circuit justice) had a ﬁrsthand understanding of the problems of their region, an understanding that often made them sensitive to state and local concerns in such important cases as those involving the enforcement of municipal bond obligations. Finally, in their role as appellate courts, the circuit courts (before 1891) and the courts of appeals (after 1891) have acted as a buffer between the district courts [ 29 ]

“AN EMPIRE IN ITSELF”

and the Supreme Court, providing a place for correction of substantial errors made in the conduct of trials and making the work of trial judges more uniform. This freed the justices of the Supreme Court (who, in any event, were overwhelmed with cases) from some routine appellate review. Between 1862 and 1890, the major characteristics of the region that affected the docket of the circuit courts of the Eighth Circuit were disputes over land, the agricultural economy, the channels and instrumentalities of interstate commerce (in particular, rivers, steamships, and railroads), the Native American population, and the attempts of states and localities both to lure development and regulate its engines. The circuit courts of the Eighth Circuit were very much part of the development of the region. Those courts would, sometimes unconsciously, expedite the settlement of the West by resolving disputes over land; by resolving patent cases to help make available to farmers farm implements and machinery, sometimes (but not always) at a lower cost than otherwise would have been the case; and by facilitating the growth of the region’s infrastructure by enforcing Supreme Court decisions that protected the holders of bonds issued to promote railroads, and allowing railroads a favored position in cases involving bankruptcy, labor strife, and personal injuries. The circuit courts also helped to unleash the creative energies of a market economy by permitting capital to be mustered and private property protected and by playing a role in keeping local taxes low. The federal circuit courts of the Eighth Circuit also acted as a kind of balance wheel, both enforcing centralizing policies and acting as a brake on centralizing tendencies. Generally, the courts were centralizers, enforcing federal laws and Supreme Court decisions. The courts enforced federal laws, including those involving revenues and crime, but spoke with a Western voice in some highly charged cases, evincing their sympathy for localities in their disputes with railroads and for state police powers used for oversight of railroads and grain elevators. Finally, the federal courts of the Eighth Circuit performed a special role in cases involving Native Americans—one that was more sensitive to the zigs and zags of the policies of the national government than settlers pressing west, and therefore demonstrating, at least periodically, more sensitivity to the rights of Native Americans than did most other government ofﬁcials.

[ 30 ]

“AN EMPIRE IN ITSELF”

Disputes over Land The federal courts were often used to settle contests over land titles, as the forum for equity actions to construe deeds, for actions to compel speciﬁc performance of contracts to convey real estate, and for suits to determine ownership of property affected by the meandering courses of rivers and streams. Considerable litigation over land in the West was inevitable given the potential wealth involved, the history of Spanish and French control of the area, and because all too often the desire for rapid settlement prevailed over careful surveying. Perhaps the most complex suit in the Eighth Circuit involving title to land arose over the Maxwell Land Grant, a “tract almost an empire in size,” located in a “region of the country unoccupied, little known and deemed of but triﬂing value.” 59 At issue were millions of acres in New Mexico and Colorado—land involving mountain peaks, extensive plateaus, slopes, mesas, and traveled passes. The Maxwell Land Grant Company claimed title against the claims of squatters, cattlemen, mining interests, and the federal government. Three Maxwell cases came before Circuit Judge Brewer in the Circuit Court for the District of Colorado in the 1880s. Brewer ruled for the Maxwell interests each time.60 Many cases involved Iowa land. One of the most difﬁcult series of cases involved grants made by the state pursuant to a federal law enacted in 1846 to fund improvements for navigation on the Des Moines River, which were to be made by the Des Moines Navigation and Railroad Company. Alternating sections of public lands in strips ﬁve miles wide on each side of the river were granted to the Iowa Territory to be used for funding the improvements. The matter was complicated by land grants to four railroads, which ran across the disputed navigation grants. The State of Iowa, the navigation company, and the railroads all made conveyances of land to settlers. Conﬂicting opinions, decisions, and administration by both the federal and the state governments produced chaos affecting more than a million acres of potentially rich farmland. A series of cases generated by these disputes arose in the Eighth Circuit and reached the U.S. Supreme Court. Ultimately, those who owned land based on the original grant won in court, but Congress then paid over a million dollars in claims to those who lost land.61 There was also much litigation over 1.2 million acres of Iowa land that was set aside to make swampland accessible.62

[ 31 ]

“AN EMPIRE IN ITSELF”

Cases Involving Waterways and Their Traffic Cases involving the rivers in the circuit arose in its courts. Some involved steamboats that had sunk, for sandbars, snags, ice, and logjams took a ﬁerce toll. Such cases often required all sorts of exasperating continuances because witnesses were scattered throughout the nation’s river systems.63 More important cases involved conﬂicts between nautical and rail interests. In 1859, Judge James M. Love of the District of Iowa ordered removal of the part of the ﬁrst railroad bridge across the Mississippi, the Rock Island–Davenport Bridge, that lay on Iowa’s side of the river, holding the bridge to be a serious obstruction to water commerce amounting to a nuisance. Love was reversed by the Supreme Court three years later. The effect of the High Court’s decision was to assist the budding railroad aspirations of Chicago over the established river interests of St. Louis.64 In October 1864 an injunction was obtained from Love against the building of a railroad drawbridge across the Mississippi at Clinton, Iowa. Justice Miller overturned an order committing the builders for deﬁance of the injunction, and the bridge was completed in 1865. Nevertheless, with litigation pending to declare the bridge a hazard and an illegal obstruction to trafﬁc on a navigable stream, its builders sought legislation from Congress authorizing the bridge. When Congress eventually acted, the circuit court was left with the questions as to whether the statute was unconstitutional either because Congress lacked the constitutional power to authorize the bridge or because its law improperly prescribed a rule to decide a pending case. The decision of the Circuit Court for the District of Iowa (Justice Miller and Judge Love) left no doubt about their view of the signiﬁcance of railroads to interstate commerce. The Chicago and North Western Railroad was to use the bridge at Clinton to reach Council Bluffs, where it would make contact (by ferry across the Missouri) with the Union Paciﬁc. In a little more than two years, the Union Paciﬁc would connect with the Central Paciﬁc to complete the transcontinental railroad. After holding that the statute had not deprived the court of jurisdiction, the circuit court upheld the statute. Miller called the Clinton Bridge part of “an unbroken road from the Atlantic Ocean to the Missouri River” and a vital link in the east–west rail network. He observed further that the railroad had become as important as the steamboat, that rails were [ 32 ]

“AN EMPIRE IN ITSELF”

being connected for “the great highway of our Union.” Miller thought that, in 1867 as in 1787, federal control was necessary to protect commerce among the states from local barriers. He had “no doubt of the right of Congress to prescribe all needful and proper regulations for the conduct of the immense trafﬁc.” The following year, the Supreme Court afﬁrmed, ﬁnding the case so easy that it rendered its decision twelve days after oral argument.65

Cases Affecting Farming Several important patent cases in the Eighth Circuit made important inventions available to farmers, often at much lower prices. Among the most important cases were those involving the drive well, the harvester, and barbed wire. Drive wells (wells constructed not by digging but by driving steel tubing into the ground) were widespread in Iowa after the Civil War. A patent for the method had been obtained by Col. Nelson Green in 1868, after the drive well had come into wide use. Farmers in four Iowa counties organized to combat the threat of wholesale suits brought by Green and his allies. The Circuit Court for the Southern District of Iowa held the patent invalid by a vote of 2–1. The verdict was estimated to have saved Iowa farmers as much as two million dollars.66 The harvester cases were brought by William Deering against the Winona Harvester Works and the McCormick Harvesting Machine Company. Among the devices involved were the “knotter,” by which a cord is held around a bundle of grain; a combination of toothed arms, slotted recovery platform, and ﬁ xed spring arms for compacting the grain; a mechanism for compressing the bundle of grain just before tying; and a mechanism for raising and fastening the grain platform. In the lawsuits brought by Deering in the Circuit Court for the District of Minnesota, Deering was successful against the Winona Company in the contest over the knotter patents. But Deering did not prevail in the suit against McCormick for the combination of tooth arms, slotted recovery platform, and ﬁxed spring.67 Perhaps no invention was more important to the settlement of the Great Plains than barbed wire because it worked out to be an excellent substitute for timber in fencing. The advent of barbed wire forced the cattleman to patronize the railroad, made stock farming, rather than ranching, the dominant occupation of the plains, and ultimately brought about the disappearance of the open free range. [ 33 ]

“AN EMPIRE IN ITSELF”

In 1873, J. F. Glidden, a De Kalb, Illinois, farmer, braided two strands of wire together and placed pointed metal bars in between the two strands. At ﬁrst, his application for the patent was disallowed, but in 1874 it was granted, although by no means was Glidden’s the only patent for barbed wire. While Judge Brewer’s decision in the Circuit Court for the District of Iowa in 1885 sustaining the Glidden patent for barbed wire was neither the ﬁrst nor the last lawsuit involving that invention, it proved to be of critical importance to the Glidden interests, which would achieve virtual monopoly control of the barbed wire market.68 Brewer, who detested patent cases, stated that his decision in Washburn & Moen Manufacturing Co. v. Grinnel Wire Co., which upheld the Glidden patent against the argument that it was something more than the coiling of wires, was one of the hardest cases he ever had to try. “It is also true that the entire combination . . . is a very simple thing,” Brewer wrote, “but, simple though it is, Mr. Glidden ﬁrst introduced it to the world; and . . . it has been found of value in the uses of the world, it would seem as though he should be entitled to the beneﬁt of the value of that which he has contributed.” Even if each element separately were contained in earlier barbed wires, stated Brewer, “it is unquestionably new . . . and the product of invention.” Though not conclusive, “it is a fair matter of consideration” that “of all the structures and devices this has been the one that has met the want of the public.” 69 Cases involving farm foreclosures have often occurred in the Eighth Circuit, especially where legislatures have attempted to extend the time for mortgage repayments. In Singer Manuf ’g Co. v. McCollock, decided by Judge Caldwell in the Circuit Court for the Eastern District of Arkansas in 1884, at issue was an 1875 state statute that appeared to give the mortgagor twelve months to redeem the mortgaged premises after foreclosure had been made under the decree of the state chancery courts. Judge Caldwell construed the statute as not applying to past sales of land under decrees of chancery courts, but permitting redemption from sales under decrees of foreclosure rendered since the act became law.70

Other Federal Staples While the most important work of the circuit courts of the Eighth Circuit during this period in dealing with the staples of federal jurisdiction was in the area of patent law, contributions of consequence also occurred in the areas of bankruptcy, trademark, tax, and federal criminal cases. [ 34 ]

“AN EMPIRE IN ITSELF”

There were many cases brought under the 1867 Bankruptcy Act.71 There were also important questions involving trademarks. After the Supreme Court held the 1870 federal trademark law unconstitutional in 1879,72 Judge McCrary held the following year in a Colorado case involving a trademark for a brand of beer that even though there was no trademark law on the books, the trademark at issue was good because for centuries trademarks had been recognized as property under the common law.73 Congress reenacted the trademark statute in 1881 under its commerce power, and it was upheld. Nevertheless, in an indictment for violation of an 1876 statute imposing penalties for trespass upon rights obtained by trademark registration, Judge Brewer held that the 1876 law had fallen with the 1870 law and had not been “viviﬁed or given operative force by the act of 1881.” 74 Although not as frequently as later would be the case, the circuit courts interpreted federal revenue statutes in suits brought to enforce them. Their work may be suggested by three cases that were decided by the Circuit Court for the District of Iowa and appealed to the U.S. Supreme Court. In Henderson’s Tobacco, the circuit court held in a prosecution for making false and fraudulent records to avoid paying the excise tax on tobacco that certain provisions of the tax laws had been repealed by implication by a later statute. The Supreme Court, however, construed the effect of the repeal differently, reversing and remanding for further proceedings against those accused of tax fraud.75 In United States v. Glab, the Supreme Court upheld the district and circuit courts for Iowa, which had ruled for the taxpayer in a case involving a tax for carrying on the business of a brewer. The courts held that where a partnership dissolved during the taxable year, the succeeding partner could carry out his business without paying a second tax.76 In Dobbins’s v. United States, the circuit court was upheld in a civil forfeiture action. The United States had seized the land on which a distillery had been maintained because the distillery owner was keeping books fraudulently. The Supreme Court held that even where the owner of the land was ignorant of illegal activities, in an action in rem the government was entitled to the verdict. If the owner of the property permitted his land to be used for a distillery, the law placed him “on the same footing as if he were the distiller.” 77 While criminal prosecutions were generally not a major part of the business of the federal courts (excluding the territorial courts) during this period, the circuit and district courts did, however, have jurisdiction [ 35 ]

“AN EMPIRE IN ITSELF”

over offenses such as violation of the revenue laws, illegal cutting of timber, and fraudulent use of federal lands, as well as postal offenses such as stealing money from letters.78 The Eighth Circuit was the jurisdiction for many of the prosecutions for political corruption in the foremost scandal of the Gilded Age, the evasion of internal revenue taxes by distillers connected with the “Whisky Ring,” a scandal that reached into the White House. Over 230 persons were indicted in the Eastern District of Missouri. About one hundred pleaded guilty; twenty were tried and convicted; a dozen ﬂed the country. The most notorious defendant, however, General Orville E. Babco*ck, President Grant’s private secretary, was acquitted after a trial in St. Louis. Grant considered testifying in person but instead gave a deposition in Babco*ck’s favor.79 There was no appellate review in criminal cases in the federal court system, except by certiﬁcate of division of opinion by lower court judges (and only then upon a speciﬁc question of law) until 1879, when Congress provided for appeal by writ of error from the district courts to the circuit courts.80 Passage of a statute in 1889, which gave a right of appeal to the Supreme Court in a criminal case where the defendant had been sentenced to death, was, in important measure, the result of the conduct of one of the district judges in the Eighth Circuit, the notorious “hanging judge” Isaac Parker of the Western District of Arkansas.81 Parker, only thirty-six years old, became a district judge in 1875 and served until his death in 1896. When Parker came to Fort Smith in 1875, it was a town of three thousand without paved streets, sidewalks, public schools, or a decent hotel.82 The District Court for the Western District of Arkansas had jurisdiction not only over cases in that state but also over those arising in what was known as the Indian Territory, the area that became the state of Oklahoma. That jurisdiction was vast—174,000 acres of long-grass pastures, creek bottoms, lonely ranches, and raw prairie towns. The only courts within the Indian Territory were Indian courts, and their jurisdiction was conﬁned to members of the various Indian tribes. Seven-eighths of Parker’s caseload came from a place “infected” with outlaws and desperadoes, where the Daltons and Belle Starr and many other notorious bandits preyed, robbing railroads, stealing horses, and rustling cattle, a jurisdiction where killing was an everyday occurrence.83 A historian has written that “administrative efﬁciency in the savage tradition is a salient characteristic of the federal judiciary in Oklahoma.” 84 [ 36 ]

“AN EMPIRE IN ITSELF”

So it may have been with Parker and the Indian Territory. Unaccountable via appeal, Parker tried cases from homicides and rapes to illegal grazing of cattle and bigamy. He became known worldwide for his hangings. In a little more than two decades, of the 164 men found guilty of murder (more than 300 were tried), 160 were sentenced to death, of whom 79 were hanged, while 4 others died while awaiting sentence or were shot trying to escape. While it is true that Parker could be a partisan judge, coaching government witnesses and bullying those called by the defense, he probably did not deserve the series of rebukes given him by the Supreme Court. From 1889 to 1896, Parker was reversed thirty-seven out of ﬁfty times by the high court, which found Parker’s charges inaccurate, prolix, and prejudicial and held that he often decided cases on points not raised by the attorneys. Justice Brewer often stood alone in support of Parker in the Supreme Court.85 Parker’s power began to ebb in 1889, when Congress passed statutes providing for appeal to the Supreme Court in capital cases and abolishing the circuit court powers of the Western District of Arkansas. There was another side to this unusual judge. Parker was an able administrator who brought order to a corrupt and chaotic jurisdiction. He was honest and remarkably hardworking, deciding 1,500 civil and 12,000 criminal cases in just over twenty years.86 Although there were many hangings, only three lynchings occurred on Parker’s watch.87 He granted habeas corpus in cases where courts lacked jurisdiction; sought “to do equal and exact justice to Indians,” who memorialized him as “one of their staunchest friends and one of the ablest and most consistent defenders of their rights under the Treaties with the United States”;88 and took a hard line against the “Boomers,” white settlers in southern Kansas who periodically launched land-grabbing expeditions in what they wanted to become Oklahoma. To head off such predatory whites, Parker ruled in 1891 that the Arkansas Valley Railroad Company Bridge could not be opened for pedestrians and wagon trafﬁc from Fort Smith into the Indian Territory. Here, too, he would be reversed.89

Cases Involving Native Americans The years from 1862 to 1890 marked the ﬁnal subjugation of the Native Americans on the Great Plains and the beginning of attempts at assimilation. Since that time, important cases involving Native Americans [ 37 ]

“AN EMPIRE IN ITSELF”

have become a regular feature of the work of the Eighth Circuit. Three decisions arising from the geographical area of the Eighth Circuit (one was from the Dakota Territory) are particularly worthy of mention. The ﬁrst, United States ex rel Standing Bear v. Crook, was one of the few major victories for Native Americans in courts of the United States during the late nineteenth century.90 In 1858 the Ponca tribe relinquished almost all the land it owned or claimed in Nebraska except for a small reserve along the Niobrara River, which was promised to them permanently, along with a commitment by the United States to protect them. But through a bureaucratic error, Ponca lands were given to the Sioux a decade later. Instead of restoring the land or protecting the Ponca from Sioux harassment, Congress gave a small indemnity to the tribe. Then, during the full ﬂush of revenge following Custer’s defeat at Little Bighorn, the Ponca were included in a list of northern tribes exiled to the Indian Territory. The forced removal from their historic land had a profound effect on the Ponca. Within a year, one-third of the tribe had died, and most of the remainder had taken ill. In 1879, Standing Bear, the Ponca chief, returned to Nebraska with a group of followers to bury the remains of his sons. The Ponca were arrested and brought back to Fort Omaha to be returned to the Indian Territory. News stories written by a Omaha journalist dramatized the plight of the Indians and led two Omaha lawyers, Andrew J. Poppleton (chief attorney for the Union Paciﬁc) and John L. Webster, to offer their services to the Ponca. With the tacit agreement of General George Crook, whose company of soldiers had arrested and was holding the Indians, habeas corpus was sought from Nebraska’s federal district judge, Elmer S. Dundy. A rugged frontiersman, Dundy was reached by messenger while he was out hunting bear. Obeying the writ, General Crook brought the Ponca into court on April 8, 1879, and produced the military orders under which he had acted. The U.S. District Attorney argued that the Indians were “not persons within the meaning of the law,” while Webster and Poppleton countered that Standing Bear and any other Indian had the right to separate himself from his tribe and live under the protection of U.S. laws like any other citizen. Given permission to speak, Standing Bear called on the Almighty to “send a good spirit to brood over you, my brothers, to move you to help me.” “Take pity on me,” cried Standing Bear, “and help me to save the lives of the women and children.” [ 38 ]

“AN EMPIRE IN ITSELF”

Beginning his opinion, Judge Dundy stated that “during the ﬁfteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy.” 91 Dundy then ruled for the Ponca. He held that an Indian is a “person” within the meaning of the laws of the United States and therefore had the right to sue out a writ of habeas corpus; that no rightful authority existed for removing the Native Americans by force to the Indian territory; and that the Indians possessed the inherent right of expatriation and the “inalienable right to ‘life, liberty, and the pursuit of happiness.’ ” Then he ordered the Indians discharged from custody. It is said that when Judge Dundy concluded the proceedings, the audience in the courtroom rose to its feet and “such a shout went up as was never heard in a courtroom.” 92 At the May 1879 term of the circuit court, Justice Miller refused to hear an appeal by the United States because “the Indians who had petitioned for the writ of habeas corpus were not present, having been released by the order of Dundy, District Judge, and no security for their appearance had been taken.” 93 Standing Bear would live out his life in northeastern Nebraska. President Rutherford B. Hayes appointed a commission that worked out an arrangement where one-quarter of the Ponca returned to Nebraska and were allotted land along the Niobrara, while the rest remained in the Indian Territory. The resolution of “Crow Dog’s case” would have an enormous longrun impact on the use of U.S. courts for the prosecution of crimes allegedly committed by Native Americans against other Native Americans. In a case of apparent ﬁrst impression, three years after the Ponca case, a Brule Sioux named Kan- Gi-Shun- Ca (or Crow Dog) was convicted in the First Judicial Court of the Dakota Territory of the murder of Spotted Tail, chief of the Brule Sioux band. The Supreme Court of the Dakota Territory afﬁrmed, holding that even though the act of Congress extending the Crimes Act to Indian Country excepted crimes by Indians against Indians within tribal jurisdiction, U.S. jurisdiction had been conferred by a treaty that Spotted Tail himself had signed.94 Crow Dog then petitioned for habeas corpus in the U.S. Supreme Court. A unanimous Court ruled that the federal courts had no criminal jurisdiction in such a case. The High Court saw the case as one in which law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the [ 39 ]

“AN EMPIRE IN ITSELF”

authority and power which seeks to impose upon him the restraints of an external and unknown code, and to subject to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it.95

In response to Ex Parte Crow Dog, Congress extended the jurisdiction of U.S. courts over major crimes committed on reservations, thus further weakening tribal organization.96 In 1884, the year after the Supreme Court decided the Crow Dog case, an important case involving Indian civil rights arose in the courts of the Eighth Circuit. John Elk claimed that he had severed his relation to his former tribe, and that as a U.S. citizen, he was entitled to vote in a local election. Living, working, and paying taxes in Omaha, Elk, represented by Poppleton and Webster, brought suit against Charles Wilkins, the voting registrar in Omaha’s ﬁfth ward, who had refused to register Elk or to let him vote. In the Circuit Court for the District of Nebraska, Judge Dundy was joined by Circuit Judge McCrary. The circuit court ruled against Elk, and the Supreme Court afﬁrmed by a vote of seven to two. It took the High Court twelve pages to rule that Indians were not citizens of the United States if they had not been subject to the jurisdiction of the United States at the time of their birth or had not been naturalized by procedure according to treaty. Justice John Marshall Harlan, who had dissented alone the year before in the Civil Rights case and who would dissent alone twelve years later in Plessy v. Ferguson,97 was joined in dissent this time by Justice William Woods. Harlan argued that the Fourteenth Amendment had been intended to confer national citizenship on persons of the “Indian race.” Harlan concluded that as a result of the decision, “There is still in this country a despised and rejected class of persons, with no nationality whatever; who . . . are yet not members of any political community nor entitled to any of the rights, privileges, or immunities of citizens of the United States.” 98

State and Local Involvement with Business The enormous industrial boom that followed the Civil War spawned efforts by governments throughout the nation to spur economic development and to regulate existing businesses. In the region of the Eighth [ 40 ]

“AN EMPIRE IN ITSELF”

Circuit where development was occurring rapidly, railroad lines and grain elevators were essential but were also visible targets for vulnerable westerners confronting extreme ﬂuctuations of farm prices coupled with high ﬁxed (or growing) charges for storage and transportation, which appeared to be the result of the abuse of economic power. There resulted a series of conﬂicts between farmers and big business, farm and town, East and West, even state and federal courts. Thus the courts of the Eighth Circuit found themselves in the middle of a number of important constitutional controversies. The most important of these involved attempts to repudiate municipal bond obligations, to lure businesses to municipalities through the expenditure of taxpayer monies, to regulate railroads and grain elevators, and to protect railroads from strikes and the consequences of insolvency. Judges demonstrated a new assertiveness in resolving these conﬂicts.

mu nicipa l bonds Beginning in the 1850s, railroad promoters, playing one community off against another, received many millions of dollars in land grants and property-tax-supported bonds as incentives to construct railroad lines. Iowa, lying astride the path from Chicago to the west and south, received much of the early wooing. All too often, these enormous grants failed to achieve the objectives for which the money was raised. As railroad construction lagged, disenchantment set in, and state courts, reversing previous judgments, often held that the legislatures had lacked the power to have authorized municipalities to issue such bonds. Many millions of dollars and the credit of U.S. governments in European ﬁnancial markets were at stake as states and localities sought to avoid their bond liabilities. The Supreme Court, which, as Judge Dillon wrote, “set a face of ﬂint against repudiation,” 99 refused to follow state court decisions based on interpretations of state constitutions and state laws that denied the validity of state railroad bonds. Exercising unrestrained independence in matters of “general jurisprudence,” the High Court formulated its own commercial law on the subject, attempting to discourage every form of attempted repudiation of debt while enforcing the obligation of bonds. Over three decades, the Supreme Court heard approximately three hundred municipal bond cases. Fifty of these were from Missouri, and twenty-ﬁve each came from Kansas and Iowa. This line of cases placed federal courts in Iowa and later Missouri into conﬂ ict with [ 41 ]

“AN EMPIRE IN ITSELF”

state courts. Even in the Dakota Territory, the territorial court held Yankton County bonds invalid, and the U.S. Supreme Court reversed. The circuit justice, Samuel Miller, did not agree with most of these decisions and was placed in the unenviable position of having to hold court in his home state of Iowa to enforce them.100 The battle may be said to have begun in 1862, when the Iowa Supreme Court held that as a matter of state constitutional law, principal and interest on municipal bonds could not be paid for out of property taxes.101 However, when the same issue arose the next year in diversity actions in the federal courts, the U.S. Supreme Court held in Gelpcke v. Dubuque that those courts need not be bound by the latest Iowa Supreme Court decision but rather ought to apply Iowa law as it was when the bonds had been issued.102 One week after the Gelpcke decision, the Supreme Court held that if municipal bonds had been validly issued, they were negotiable and, in the hands of a bona ﬁde purchaser, were proof against fraud or illegality.103 Relying on concepts of common law, natural law, and the Contract Clause, the Supreme Court served notice that it was not prepared to follow the “oscillations” of state courts in such a vital area. Justice Miller fought hard against this trend within the Supreme Court. In Butz v. City of Muscatine,104 for example, a bondholder had sought mandamus against city ofﬁcials to force them to levy a tax “sufﬁcient” to pay off a judgment with interest and costs. However, under the city charter, the maximum assessment the council was able to levy was 1 percent of assessed value. The Supreme Court reversed the Circuit Court, which had followed the Iowa Supreme Court. The High Court said that to follow those decisions would be to “abdicate performance of a solemn duty” because it would take away a remedy that was in force at the time the bonds were issued and would thus impair the obligations of contracts.105 In dissent, Miller (joined by Chief Justice Salmon P. Chase) called the decision “an entire and unqualiﬁed overthrow of the rule imposed by Congress and uniformly acted on by this court up to the year 1863, that the decisions of the state courts must govern in the construction of state statutes.” 106 As various communities deﬁed the authority of the federal courts, Miller and the Iowa Circuit Court had to give way and apply Gelpcke and its progeny. Miller did so, but at times slowly and without enthusiasm, delaying those seeking their monies several years.107 The climax came in a case in which the Iowa courts had perpetually [ 42 ]

“AN EMPIRE IN ITSELF”

enjoined county ofﬁcers from issuing a tax to give effect to a judgment received by a foreign bondholder. The U.S. Supreme Court responded by holding that state process could not bar mandamus and directed the circuit court to grant the writ.108 In May 1869, Miller held on circuit that city and county ofﬁcials who failed to obey a court order to levy taxes to pay bonds would be placed in the custody of the marshal of the circuit court until they agreed to obey. He held in another case that county super visors would be released on bail if they agreed to obey the mandate of the court. The supervisors did.109 After the ofﬁcials of Washington County (just south of Iowa City), attempting to comply with the federal court order, were arrested for contempt of a state court order enjoining the tax, Judge James M. Love directed the U.S. District Attorney to bring habeas corpus proceedings in the Circuit Court. The writ was executed. The county supervisors were discharged from state custody. The tax was then levied.110 Judge Dillon, also an Iowan, went further and held, in a case involving Lee County in southeast Iowa, that his court could direct the marshal to collect the tax at once.111 The municipalities ﬁnally began to give in late in the summer of 1870, when Miller, writing a public letter at the request of inﬂuential citizens, urged that the matter be settled, and President Grant indicated that he would not hesitate to use force.112 In the 1870s the scene shifted to Missouri. There federal and state courts rendered conﬂicting decisions in cases involving railroads, and mass meetings were held to determine how to evade the federal decisions. Arnold Krekel, judge of the U.S. District Court for the Western District of Missouri, imprisoned local ofﬁcials for failing to raise tax money to pay municipal bond obligations in full. The Missouri State Democratic Party Convention went so far as to adopt a plank that stated that the jurisdiction of the federal judiciary, as it was then being exercised, was “unwise and hurtful to the true interests of the people.” Once again, the U.S. Supreme Court prevailed.113 There was also prolonged litigation over Minnesota’s liability for the bonds it had issued to the St. Paul and Sioux City Railroad.114 The major exception to the trend occurred over the validity of Arkansas Civil War bonds. The Circuit Court for the Eastern District of Arkansas certiﬁed the issue to the U.S. Supreme Court via a division of opinion. The Supreme Court then held that the consideration for the note was void as being against public policy, the U.S. Constitution, and the president’s proclamation, as well as under the principles of public law.115 [ 43 ]

“AN EMPIRE IN ITSELF”

That this bitter conﬂict between state and federal courts (and between the federal courts and Iowa politicians and citizens) took a toll on Miller is undeniable. He wrote in 1878: “It is the most painful matter connected with my judicial life that I am compelled to take part in a farce whose result is invariably the same, namely to give more to those who have already, and to take away from those who have little, the little that they have.” 116

“ta x ation for a public purpose” At the same time that municipalities were being ordered to pay off their bond obligations, the federal courts were limiting their power to repeat such errors. The courts of the Eighth Circuit imposed federal constitutional barriers to local expenditure of tax monies to attract and assist businesses. In the development of this doctrine limiting municipal expenditures to those for a “public purpose”—a doctrine that ultimately won the approbation of the Supreme Court—John F. Dillon, as state chief justice, circuit judge, and treatise writer, exercised an enormous inﬂuence on developments throughout the nation. Once again, Iowa was at the forefront of legal developments. At the same time that the citizens of Iowa were defying federal court decisions to repudiate municipal debt, the Iowa legislature passed a law authorizing municipalities to assist a railroad by levying a tax not to exceed 5 percent of the assessed valuation of property. In 1869, in the case of Hanson v. Vernon,117 the Iowa Supreme Court (Chief Justice Dillon writing) held that law unconstitutional on the ground that taxation could only be for a public purpose. Shortly after Dillon left the Iowa Supreme Court, that court overruled Hanson v. Vernon. Dillon, now circuit judge, chose to uphold the new state court decision that permitted governmental units to levy taxes for outright rail subsidies. To do otherwise, Dillon thought, would create “intolerable mischief that would ﬂow from the consequent confusion of rights.” 118 Concurrently, Dillon and Judge Dundy certiﬁed a division of opinion to the U.S. Supreme Court in a case dealing with a Nebraska statute authorizing county commissioners to issue $105,000 in bonds to any railroad that would secure to Nebraska City a direct connection to the East. The commissioners were authorized to act without the need for approval by a referendum, as had otherwise been provided by state law. The Supreme Court sustained the statute 5–3. Miller dissented without opinion.119 [ 44 ]

“AN EMPIRE IN ITSELF”

Then came two important cases from Kansas involving the use of $2 million of bonds that had been issued to encourage private enterprises, such as manufacturing companies and hotels, to settle in Kansas municipalities. In Commercial Nat’l Bank v. Iola,120 the City of Iola had adopted an ordinance authorizing $50,000 in bonds to be issued for the erection of buildings to be used by a company manufacturing bridges, plows, and stoves. The ordinance had been approved by referendum before the state statute authorizing the activity was enacted. Dillon, following the Kansas Supreme Court, held that a legislature could not compel or coerce citizens to aid in the establishment of purely private enterprises just because they incidentally might promote the general good of the community. “Taxation,” wrote Dillon, “is a mode of raising revenue for public purposes. When it is prostituted to objects in no way connected with the public interest or welfare, it ceases to be taxation and becomes plunder.” Taxation to aid railroads, Dillon wrote, had already gone to the “verge of legislative authority,” and bonds to aid a bridge factory were “void from the beginning.” 121 Citizens’ Sav. Ass’n v. Topeka involved $100,000 in bonds donated by the City of Topeka and authorized by the state of Kansas to aid in the establishment of an iron bridge and iron works company.122 Dillon, writing for the Circuit Court for the District of Kansas and following his decision in Iola, held the municipal bond issue unconstitutional. The bonds were held to be devoid of legal obligation on the ground that the state legislature lacked the power to authorize the city to issue them. The U.S. Supreme Court afﬁrmed both decisions in an opinion by Justice Miller in the Topeka case. Miller, citing in part to Dillon’s Law of Municipal Corporations, held that such statutes were void for two reasons: (1) because the taxes necessary to pay the bonds would, if collected, constitute the transfer of property to individuals to aid in projects not for public use, and (2) because the legislature lacked the authority to pass such a statute. As a result of the decision in the Topeka case, it became a settled proposition of American constitutional law for generations that aid to private business enterprises (excepting railroads) was not a public purpose for which state legislatures could exercise monetary and spending powers.123

the gr anger cases Just after the height of the conﬂict between the federal courts and Iowa ofﬁcials over municipal bond repudiations and contemporaneous with the “taxation for a public purpose” cases, [ 45 ]

“AN EMPIRE IN ITSELF”

the Granger cases arose. Agricultural discontent has been a deep-seated characteristic in the Eighth Circuit. Between 1862 and 1890, with farm prices low, interest rates high, and rail rates inconsistent, farmer anger was manifested in a variety of ways—defaults on municipal bonds, support for Greenback currency, the growth of interest groups such as the National Farmers Alliance and of political parties such as the People’s Party and the Greenback Party. Farmers viewed state governmental efforts to attract railroads as the result of wholesale bribery of the legislature. In Iowa, for example, when the legislature in 1868 authorized towns to vote taxes not to exceed 5 percent of taxable property, the taxes were to be given to the railroads as a gift.124 In Missouri, to complete the lines left unﬁnished at the beginning of the Civil War, the state paid the price of cancellation of the $25 million the company owed the state.125 Certainly, farmers whose livelihood depended on railroads and grain elevators could not be expected to warm to these rich and powerful corporations, which, moving in secret ways, inﬂuenced public ofﬁcials and sought freight rates designed to earn a rich return on ﬁctitious capitalization.126 The most effective effort to regulate railroads and grain storage facilities was the Granger laws of the 1870s. Oliver Kelly had begun the Grange in 1867. Local groups spread swiftly. There were 2,000 in Missouri and 1,999 in Iowa.127 The movement was also strong in Kansas, Nebraska, and Minnesota. The result in four of the states—Minnesota, Iowa, Wisconsin, and Illinois—was the passage of laws prescribing maximum railroad rates for freight and passengers (and for storing grain) by direct legislation or through delegation to commission. Discriminatory rates were proscribed. At the time of the passage of the Granger laws, the assertion of a general power of state legislatures to regulate railroads had never been successfully challenged in any U.S. court. Nevertheless, the railroad corporations, bolstered by advisory opinions from well-known attorneys, put their faith in the courts.128 The earliest Granger law, passed by Minnesota in 1871, ﬁ xed rates, created a railroad commissioner to report violations of the law, and provided a ﬁne of $100 per violation or forfeiture of the railroad’s charter. The railroads did not comply directly with the terms of the law, although they did reduce charges. In proceedings brought against the Winona and St. Paul Railroad by Minnesota’s attorney general in 1873, the Minnesota Supreme Court upheld the law. In the circuit court, Judges Dillon and Rensselaer R. Nelson declined [ 46 ]

“AN EMPIRE IN ITSELF”

to instruct the receiver of another railroad to disregard or obey the law without there being full argument or an authoritative decision elsewhere.129 In 1874 Iowa enacted a law classifying railroads on the basis of gross earnings per mile and used that as a basis to ﬁ x passenger and freight rates. The governor of the state was authorized to prosecute any action brought for a violation of the law, if requested by an aggrieved person supported by twenty taxpayers.130 While most of the railroads in Iowa complied with the state law, the Chicago, Burlington and Quincy Railroad, an Illinois corporation with a perpetual lease of the Burlington and Missouri River Railroad (an Iowa corporation, which held a major east–west trunk line making connections with Chicago and Nebraska), refused to comply with the law. After consultation with the other Iowa trunk lines, the CB&Q brought suit in the Circuit Court for the District of Iowa, attacking the statute on federal Commerce Clause and Contract Clause, as well as on state constitutional, grounds. The railroad did not contend that it could be free of all governmental restrictions on rates but strongly opposed rates directly prescribed by the legislature. The CB&Q’s motion for an injunction was argued before Justice Miller and Judge Dillon in Davenport early in 1875. On March 18, the circuit court upheld the law in an opinion written by Judge Dillon. The railroad’s charter was construed in favor of the public. The state’s right to regulate commerce within the state was upheld. The right of public supervision and control of the railroad was held to arise from the fact that it was a highway built for the convenience of the public, and therefore it was “in part public and in part private.” 131 The railroad appealed to the U.S. Supreme Court, where the Iowa case was joined with the two from Minnesota and ﬁve from Wisconsin and Illinois. The Granger cases thus presented a major constitutional challenge to legislative control of rates. In the Supreme Court, the CB&Q attorneys argued that property was more than a tangible physical substance, that it should be thought of as an asset that could rise and fall in value. Thus, by setting a maximum rate for the railroad’s services, Iowa had deprived the company of property without due process of law.132 The Supreme Court announced its decisions in the Granger cases on March 1, 1877, more than a half decade after the ﬁrst suits were ﬁled, sixteen months after the lead Minnesota case was argued, and thirteen months after the Iowa case was argued. All the statutes before the [ 47 ]

“AN EMPIRE IN ITSELF”

Court in the Granger cases were upheld. Probably chosen by the Court as the lead case because it presented an issue of a regulation free from Commerce Clause and Contract Clause issues,133 Munn v. Illinois involved an Illinois law that had created a Railroad and Warehouse Commission, empowered to investigate costs, receipts, earnings, and indebtedness of railroads and prevent abuse of the monopoly of grain elevator rates for the storage of grain in Chicago. In an opinion written by Chief Justice Waite, the Supreme Court upheld the Illinois statute in Munn,134 consciously deferring to the policy judgments of the legislature. The Court held that property rights were not absolute and that the state police power was broad. It held further that when private property is devoted to a public use, it is subject to public regulation for the public good. Railroads and grain elevators were held to be “affected by the public interest.” In a concession that did not seem important at the time, Chief Justice Waite indicated that under some circ*mstances a regulatory statute might be so arbitrary as to be unconstitutional under the Due Process Clause. But that was for another day. Justice Field, joined by Justice Strong, strongly dissented, stating that the majority’s opinion in Munn v. Illinois was “subversive of the rights of property.” In Chicago, Burlington & Quincy R.R. v. Iowa, Dillon was completely upheld. The Supreme Court held that the legislature’s power over rates was complete, that no contract rights had been impaired, and that the law did not apply to interstate commerce. Chief Justice Waite wrote that railroads are “engaged in a public employment affecting the public interest and, under . . . Munn . . . subject to legislative control as to rates of fare and freight.” 135 Ironically, by the time the Supreme Court decided the Granger cases, many of the Granger laws had already been weakened or repealed. This was because some railroads had made reforms, many railroads were in dire ﬁnancial straits, and the laws appeared to be slowing the growth of railroads. Nor can the cajolery, threats, bribery, and newspaper manipulation by the railroads be ignored. In Iowa, on March 23, 1878, four years to the day of the enactment of the Granger law, the governor signed a law that repealed the earlier law and created a railroad commission to investigate complaints and examine books. The commission was to report its ﬁndings to the legislature and recommend prosecution in the civil courts, if need be.136 Although Munn seemed to be a barrier to prevent invalidation or even the cabining of legislative power to regulate prices [ 48 ]

“AN EMPIRE IN ITSELF”

and place ceilings on them, its authority would soon be eroded—a story left for the next chapter.

r ailroad bankruptcy and receiverships Even apart from the cases involving bond issues and rate regulation cases, railroad cases constituted an important part of the business of the circuit courts of the Eighth Circuit. There were cases involving the taxation of railroads, cases arising out of injuries to railroad employees, attempts by the federal government to reclaim unsold portions of land grants to railroads, and battles over the consolidation of railroads. One of the most important of these was the battle between James J. Hill and James P. Farley over the St. Paul, Minneapolis and Manitoba Railroad Co. and the St. Paul and Paciﬁc Railway Company, a battle fought in state courts as well as the Circuit Court for the District of Minnesota. Hill’s syndicate acquired the St. Paul and Paciﬁc, and Farley, at one point its receiver, sought some of the spoils. For over fourteen years the battle raged, reaching the U.S. Supreme Court twice. In the end, Hill was the winner in a decision by Circuit Justice Brewer, which was upheld by the Supreme Court.137 There were many railroad bankruptcy cases as a result of overconstruction, heavy indebtedness, and hard times. Foreclosures were often unavoidable, and as a result the courts were asked to resolve issues as to the nature and disposition of railroad mortgage proceeds and the priority of claims, including the priority of mechanics’ liens over mortgage lien rights.138 Solicitude for the rights of business as well as growing judicial activism can be seen in the development of the railroad receivership. On the eve of Reconstruction, receivership and railroad reorganization had become staples of the business of the lower federal courts. However, it was not until the repeal of the federal bankruptcy law in 1878 that federal judges, who had the recognized authority of chancellors in equity, began to accept petitions from railroads in difﬁculty (subject to varying state bankruptcy laws) and appointed receivers, not to wind up the business but to continue it. The Supreme Court gave its imprimatur to railroad receiverships in 1881.139 Railroads were businesses essential to the survival of the West, and their insolvency “rendered necessary the exercise of large and modiﬁed control” over the railroads by the courts.140 Railroad receiverships produced an enormous increase in the work of the federal courts. The receivers appointed by the court paid for labor and improvements, and [ 49 ]

“AN EMPIRE IN ITSELF”

the court was ultimately responsible for the performance of duties that included negotiation among the antagonistic interests of mortgagees, unsecured creditors, material men, laborers, and stockholders. For the railroad, receivership brought pronounced advantages. The courts ordinarily appointed company ofﬁcers as receivers. A railroad in federal receivership was freed of the control of state railroad commissions, and receiverships were often used to protect the existing railroad system from heavy indebtedness and labor unrest. Railroad receivers thus might have a freer hand in bankruptcy than otherwise. As Justice Miller explained in his dissent in Barton v. Barbour: The receiver generally takes the property out of the hands of the owner, operates the road in his own way, with an occasional suggestion from the court, which he recognizes as a sort of partner in the business; sometimes, though very rarely, pays some money on the debts of the corporation, but quite as often adds to them, and injures prior creditors by creating new and superior liens on the property pledged to them.141

Judge Henry Clay Caldwell of the Eastern District of Arkansas (and later circuit judge) sought to redress some of the inequity by conditioning receiverships on the terms that claims for labor and materials should be paid ahead of the mortgages,142 a position, though cautiously and within narrower limits, that was adopted by the Supreme Court.143 On the other hand, Judge Brewer thought that Caldwell’s approach thoroughly destroyed the sanctity of contract obligations of the mortgages.144 The receivership was easily perverted during times of labor strife. During the widespread railroad strikes of 1877, federal judges with railroads in receivership made “virtuoso use of the contempt power.” 145 During the strikes of 1885–86, judges issued writs of assistance and bench warrants and instituted contempt proceedings against workers. The most important cases involving labor troubles in the Eighth Circuit during this period involved the Wabash, St. Louis and Paciﬁc Railway. During a labor dispute in 1885 while the railroad was in receivership, workers blocked its tracks and otherwise prevented the use of railway engines and freight cars in the railroad yards. More particularly, strikers were accused of spiking and blocking the tracks, drawing water from the engines, inciting employees to quit work, and making threats aimed at nonstriking employees. Judge Brewer held in In re Doolittle that striking was legal, but interference with the operation of a railway in federal receivership and with the rights of other employees was not.146 [ 50 ]

“AN EMPIRE IN ITSELF”

Brewer gave the strikers before him sixty days in jail and assessed costs, which was far too lenient for the colleague sitting with him, Samuel Treat of the Eastern District of Missouri.147 First organized as a recognizable circuit in 1862, the Eighth Circuit came to encompass a huge geographic area. Organized to do the tasks imposed on the federal courts by the Constitution and Congress, the courts of the Eighth Circuit helped integrate a large part of the continent into a uniﬁed nation while providing a forum to protect property from transient majorities. The circuit courts of the Eighth Circuit made themselves useful in a variety of ways—by settling disputes over land and mining claims, employing federal law to protect patents and trademarks, settling cases involving the region’s great river and rail highways, applying federal criminal law, and from time to time attempting to dole out some justice for Native Americans, seeing that little was offered by other federal ofﬁcials. The most important constitutional conﬂicts of the early years of the circuit were spawned by western attempts to lure development and to regulate the great corporations that contributed to that development, cases in which tensions between East and West were often not far from the surface. The circuit justice and circuit judges were able, and three of them, Samuel Miller, John F. Dillon, and David J. Brewer, made major contributions to national law. A new era was coming—one in which the area of the Eighth Circuit would be greatly enlarged and a tier of federal intermediate appellate courts would be created to relieve the U.S. Supreme Court of more routine controversies. The courts of the Eighth Circuit would come to perform an important role in that era as the reach of federal jurisdiction was enlarged to include the exercise of federal police power, regulation of monopoly, the application of sedition laws during wartime, and Prohibition.

[ 51 ]

This page intentionally left blank

chapter 2 +++++++

The Early Years 1891–1929

eaching from New Mexico’s mountainous Hidalgo County backing into Mexico, to Angle Inlet beside Lake of the Woods jutting into Canada, in the early years of the twentieth century the Eighth Circuit sprawled across the central United States. Farthest east was Dorena, Missouri, almost touching Kentucky. Out west the jurisdiction went as far as Wendover, perched on Utah’s Great Salt Lake Desert. This circuit of great size was a by-product of admission to statehood of six states between 1889 and 1912: North and South Dakota (1889), Wyoming (1890), Utah (1896), Oklahoma (1907), and New Mexico (1912). At the time, although the land area was large, the Eighth Circuit was administratively manageable because the population of many of its states was sparse and federal jurisdiction was still limited. However, as population increased and federal jurisdiction rapidly grew, size eventually became a deterrent to efﬁcient administration. The solution, enacted in 1929, was the division of the circuit, largely on an east–west basis. Three states of the Great Plains (North and South Dakota and Nebraska) and four of the Mississippi Valley (Minnesota, Iowa, Missouri, and Arkansas) would remain in the Eighth Circuit. The remaining six states (Kansas, Colorado, Wyoming, Utah, Oklahoma, and New Mexico) would constitute a newly created Court of Appeals for the Tenth Circuit.

[ 53 ]

THE EARLY YEARS, 1891–1929

State and Regional Developments

The New States Of the new additions, North and South Dakota, which remained in the circuit, deserve particular mention. Sharing an extremely harsh climate, the Dakotas came into the Union as sparsely populated agricultural states, though much of their land was ill suited for farming. Remote from important centers of population, industry, and political decision making, each state was unusually dependent on railroads, grain elevators, and ﬁnancial institutions in states to their east and resented it.1 That resentment was harnessed to bring about a period of Progressive reform and then, as a result of the efforts of the relatively short-lived Nonpartisan League, a sort of state socialism that in North Dakota produced a state mill, state bank, and state hail insurance, and in South Dakota a state cement plant. In these years, the states shared a political culture of clean if rambunctious politics, an unusual blend of radical proscriptions and conservative prescriptions.2 During the years when Oklahoma would be a part of the Eighth Circuit, the state generated a number of important cases involving Native Americans or petroleum or a combination of both. The eastern part (or “Indian Territory”) of what is now the state of Oklahoma largely belonged to the “Five Civilized Tribes” (Cherokee, Chickasaw, Choctaw, Creek, and Seminole) until the twentieth century. The central part of the state, which included Oklahoma’s Panhandle, only opened for settlement to nonNative Americans in 1889, was established as the Territory of Oklahoma by Congress in 1890. Pressed by interests seeking to settle the Indian Territory, pressures that greatly increased when petroleum was discovered, Congress in 1893 created the Dawes Commission with a mandate to bargain for land and achieve the dissolution of the Indian nations. Those aims were achieved so well that, by 1905, whites had come to outnumber Native Americans by ﬁve to one in the Indian Territory. Congress refused in 1905 to admit to the Union the Indian Territory alone but in 1907 admitted the “Twin Territories” together as the state of Oklahoma. For over two decades, the U.S. District Courts for the Eastern and Western District of Oklahoma 3 would be important sources of appeals to the Court of Appeals for the Eighth Circuit.4 Neither Wyoming nor Utah nor New Mexico made a contribution to the work of the Court of Appeals comparable to that of Oklahoma. [ 54 ]

THE EARLY YEARS, 1891–1929

Wyoming, with a population of 63,000 when admitted to the Union, did give the Court of Appeals (and U.S. Supreme Court) one important judge, Willis Van Devanter. Its rich oil deposits would generate several important cases over private exploitation of federal land. Although Utah’s territorial courts had been the forum for bitterly fought litigation brought about by federal attempts to suppress Mormonism, those legal conﬂicts were largely in the past when Utah entered the Union in 1896. While Utah was in the Eighth Circuit, the most important cases it sent the Court of Appeals involved mining. New Mexico, admitted to the Union in 1912 with a population of 330,000 (almost 100,000 more than Utah’s when admitted), produced few cases for the Court of Appeals, the most interesting of which involved land claims and Native Americans.

Regional Developments The eastern part of the Eighth Circuit was far ahead of the western part in settlement, although its rate of population increase slowed. Minnesota, for example, grew only from 1.3 million to 1.6 million. Arkansas was an exception. In spite of a large outmigration of African Americans, the state grew from 1.1 million to 1.9 million. The rate of population increase in the more newly admitted states was more rapid: North Dakota from 191,000 to 681,000; South Dakota from 350,000 to 693,000. The most dramatic increase of all was registered by Oklahoma. The Sooner State increased from 259,000 in 1890 to 2.4 million in 1920. 5 In the eastern part of the circuit there was also a considerable migration from farm to town or city. By 1929, Missouri’s rural population had become a minority. Here, too, Arkansas was an exception. In 1930, 80 percent of its population still lived in rural areas.6 Agriculture remained the dominant sector of the state economies. The introduction of new crops (or new strains of old crops), successful irrigation, and soil conservation greatly increased productivity. Enactment of the Newlands Act in 1902 initiated important government irrigation projects.7 However, the agricultural economy is cyclical, and during this period there were two extreme farm depressions—in the 1890s and the 1920s. In the 1920s, for example, the wholesale price index, which had risen during the war from 100 (1914) to 211 (1920), dropped to 121 (1921) and for the rest of the decade would not exceed 149. The purchase price of wheat per bushel declined from $2.02 (1919) to $.82 (1921).8 Real estate values in South Dakota declined 58 percent between 1920 and [ 55 ]

THE EARLY YEARS, 1891–1929

1930. Between 1921 and 1932, there were 34,419 farm foreclosures in the state, 19.6 percent of farm acreage on the assessment rolls.9 Fortunately, the economies of many of the states of the Eighth Circuit continued to diversify. Agriculturally related industry became increasingly important to the economy. Minnesota, for example, had great sawmills and produced cereal, pasta, and farm machinery.10 Iowa had a meatpacking industry. Farm implements such as John Deere tractors were also manufactured in Iowa, as were butter, ﬂour, and pearl buttons.11 Nonagriculturally related manufacturing also grew. Between 1890 and 1910, capital invested in manufacturing in Nebraska nearly tripled to almost one billion dollars.12 Iowa manufactured Schaeffer pens, Collins radios, and Maytag dishwashers. By the end of this period, Missouri ranked tenth in the nation in the total value of its manufactured products.13 Mining became increasingly important to the economic success of the circuit. Extraction of iron from Minnesota’s Mesabi Range began in the 1890s. From that source would come a large part of the steel that built the United States in the twentieth century. Petroleum was discovered in Oklahoma, Kansas, Colorado, New Mexico, and Wyoming. There was even a boom in Arkansas with the discovery of the El Dorado ﬁeld in 1921. Gold was mined in Colorado, potash in New Mexico, and coal and copper in Utah. Vigorous and diversiﬁed commerce yielded new opportunities for litigation in the federal courts. During these years, political protest movements affected the fabric of life in the circuit. Farmer discontent was a constant, regardless of prosperity or depression—the result, no doubt, of the difﬁculties of farm life and farmers’ dependence on others for marketing their commodities and for purchasing necessaries and luxuries. Westerners often felt that they were bearing the brunt of the cost of the expansion of industry and the accumulation of capital.14 The ﬁrst of these movements, the Populist Party, created in 1890, was a response to the economic problems of the late 1880s—deﬂation and depression, high railroad rates, and low wheat prices.15 Pitting farmers and miners against the “moneyed classes,” the Populists had immediate, if short-term, successes in Nebraska, Minnesota, South Dakota, and Kansas and among whites in the South. The principal yield for the federal courts from the Populist movement was a new surge of railroad regulation, which generated important constitutional litigation. The Populist movement had largely been conﬁned to the Midwest [ 56 ]

THE EARLY YEARS, 1891–1929

and South. The Progressive movement impacted a much wider area and affected local, state, regional, and national politics. The impact of Progressivism on the courts of the Eighth Circuit occurred through the prosecutions brought in federal courts against big-city party machines and the passage of state police regulations, particularly those enforcing Prohibition, which from time to time generated constitutional litigation.16 The third wave of reform politics resulted in the Nonpartisan League, created by Arthur C. Townley in North Dakota in 1915. Even at its height, the Nonpartisan League was limited to the north central states. The Nonpartisan League seemed, for a time, to offer more substantive change than the Progressives, who sought, ﬁrst of all, to “clean up” politics. Townley, however, pushed for creation of state-run institutions to assist farmers directly in their battles against private banking, marketing, and transportation interests.17 In 1916, the Nonpartisan League swept to victory in North Dakota. In a few legislative sessions, not only were the state bank, mill, and hail insurance created, but the Nonpartisan League may fairly be credited with the adoption of a better system for grading grain, a state grain elevator association, an inheritance tax, a minimum-wage law for women, and a state highway system. Poised for regional success at the time of America’s entry into World War I, the league fell victim to the mass conformity and antiradicalism that followed. By 1920, the league had ceased to be a factor in the politics of any state except North Dakota and, possibly, Minnesota. Even in a short time, however, the league’s leaders and program became involved in prosecutions under the Espionage and Sedition Acts, bankruptcy proceedings, and suits challenging the constitutionality of the league’s program.18 During this period, the Eighth Circuit would become less remote, less isolated, and less unique than it had been as a result of developments in transportation and communications and the effects of World War I. The extraordinary social effects of the automobile on society were felt during these years. The acceptance of the automobile, which produced so much change, was astonishingly rapid. In Missouri, for example, the number of vehicles in the state increased from 16,400 (1911) to 297,000 (1920) to 762,000 (1930).19 The automobile brought the isolated farmer to town and city, reducing the pressures of small-town life and diminishing the political importance of the railroads. The manufacture of cars, the construction of roads, and the use of trucks for freight increased marketing opportunities for producers of both agricultural and industrial goods. [ 57 ]

THE EARLY YEARS, 1891–1929

One further development that resulted from the automobile was a growing tourist industry, soon to become important in the circuit.20 While the railroad continued to be the primary carrier of freight, railroad rates dropped as a result of competition from trucking and later from the airplane. There would be new waves of state rate regulation, which generated major constitutional decisions by the courts of the Eighth Circuit and received Supreme Court review. Cases involving federal regulation of railroads would reach the dockets of the district courts during the ﬁrst decade of the twentieth century. The telephone (which began to be widely used in these years), radio, and motion pictures also made life on the plains and in the mountains less remote. By 1930, people living in small towns and even many on farms had become integrated into a national system of news and entertainment that altered social mores and political attitudes. Such changes in communications and transportation meant that national and international events impacted more directly (or were felt to impact more directly) on the region’s economy and cultural life. For the ﬁrst time in American history, there were expectations that the federal government should really govern. On the national scene, a series of laws were passed, the handiwork of the Progressives, which greatly increased and diversiﬁed the work of the federal courts. These included laws regulating railroads, laws protecting consumers, laws aimed at unfair business practices, and federal criminal laws aimed at “immoral acts” such as drinking, prostitution, and the taking of narcotics. America’s involvement in World War I had profound effects. The war brought about a frenzy of superpatriotism and intolerance everywhere in the nation, aimed ﬁrst at German Americans, then at radical groups. In the Eighth Circuit as elsewhere, civil liberties were threatened by government and the mob. In spite of centripetal forces between 1891 and 1929, the Eighth Circuit remained distinctive. The vastness of the circuit, coupled with the still strong constitutional position of the states in the federal Union, made possible the local variations that continued to give such richness of texture (for good and bad) to American life. Political cultures varied from state to state—the result of different economies, different histories, and different ethnic backgrounds. Life in each of the states had distinctive features, and that distinctiveness may be discerned in the work of their federal courts. Searching the docket of the Court of Appeals, one sees the economic potential of the Mesabi Range, the rancorous relations [ 58 ]

THE EARLY YEARS, 1891–1929

between North Dakota’s farmers and the large economic institutions of the Twin Cities, the poisonous labor-management conﬂicts of Colorado’s mines, the effects of virulent racism on Arkansas life, the unique history of Oklahoma’s Indian Territory, and the exceptional difﬁculties of accurately determining land titles in New Mexico. Unfortunately, space does not permit discussion of each. Litigation spawned by distinctive features of life in different parts of the circuit found its way into the federal courts and ultimately colored the docket of the Court of Appeals. Two important minorities remained outside the mainstream of regional and nation life: Native Americans and African Americans. During these years, the only states in the Eighth Circuit with sizable African American populations were Arkansas, Missouri, Oklahoma, and Kansas. Each of those states had some kind of formalized segregation. Race relations were at their most primitive in Arkansas. There the failure of Populism to ameliorate economic hardships was followed immediately by increased racism.21 Arkansas’s ﬁrst Jim Crow law, a separate coach act, was passed in 1891. As the result of the adoption in 1893 of a literacy test, later followed by a poll tax and a white primary law, the 1894 elections in Arkansas would be the last for some time in which signiﬁcant numbers of blacks would vote. Between 1889 and 1918, there were 214 lynchings in Arkansas, placing the state sixth in the nation.22 When President Theodore Roosevelt visited Little Rock, Governor Jefferson Davis, who in 1900 had become the ﬁrst major party candidate in the state to appeal openly to racial prejudice, welcomed the president in a speech that praised lynching as sound public policy.23 African Americans began moving north from Arkansas in the 1890s. After the Elaine riot of 1919, one of the bloodiest black-white encounters in American history (probably more than one hundred blacks were killed, and ﬁve whites), the rate of black outmigration accelerated. Those who remained had to learn a dehumanizing servility.24 Not all grave racial problems took place in the South, in states with formal segregation, or in states with a large African American population. In 1919, Omaha, the largest city in a state with only 13,000 African Americans in a total population of almost 1.3 million, had a horrible antiblack riot. Not only was an alleged black rapist lynched by beating, hanging, and burning, but the city’s white mayor, who sought to halt the mob, barely escaped being lynched himself. It took eight hundred federal and state troops to restore order after the city’s downtown was pillaged and a courthouse burned.25 On the whole, however, [ 59 ]

THE EARLY YEARS, 1891–1929

race relations were not an important issue for whites who lived north of Missouri’s northern border during these years, although in the years after World War I there was some Ku Klux Klan activity in Nebraska, South Dakota, and Colorado.26

Creation of the Circuit Courts of Appeals The Court of Appeals for the Eighth Circuit was one of nine created by the Circuit Court of Appeals Act of March 3, 1891 (otherwise known as the Evarts Act),27 a milestone of judicial reform. The growth of the United States since the end of the Civil War—in settled land area, population, economy, and infrastructure—pressed hard on the federal court system, especially on the Supreme Court, where some litigants were waiting as long as four years for a decision. In their turn, the lower federal courts also faced crowded dockets, the result of the enormous economic expansion that had followed the end of the Civil War. Not only could the justices of the Supreme Court no longer make a signiﬁcant contribution to the work of the circuit courts, but even the circuit judges were unable to sit in all their districts in a given year. The result was that the circuit courts often became tribunals of one—the district judge. When that occurred, not only was the regional balance intended by the framers of the First Judiciary Act missing, but the district judge might be hearing appeals from his own decisions. The Evarts Act was a compromise between the commercial and nationalistic interests of the East and the concerns of the Populist South and Midwest, which feared the extension of federal power. In 1891, Congress created a new tier of courts, the circuit courts of appeals, which were given appellate jurisdiction over both the circuit and district courts. Each of the nine circuit courts of appeals was composed of two circuit judges, save the Second Circuit, which was given three. Appeals were ordinarily heard by a panel of two circuit judges and one district judge, a quorum being two. Congress bowed to tradition by preserving the circuit courts for the time being, but those courts were shorn of their appellate jurisdiction and became, for the most part, indistinguishable in actual operation from the district courts. Occasionally, members of the circuit courts of appeals presided over important cases in the circuit courts, such as those involving the constitutionality of state railroad rates; and in a few areas, most notably antitrust, the duty of court of appeals judges to sit was imposed by statute. Although in the Evarts [ 60 ]

THE EARLY YEARS, 1891–1929

Act, Congress had left open the possibility of continued circuit riding by the justices, after 1891 this rarely occurred. The circuit courts were ﬁnally abolished in 1911. The main purpose of the creation of the circuit courts of appeals was achieved by diverting the stream of federal appeals away from the Supreme Court. Direct appeals to the U.S. Supreme Court continued in what would ordinarily be the most important cases—cases involving interpretation of the Constitution or treaties that arose either in federal or state court. The jurisdiction of the Supreme Court over criminal appeals was increased. But the new courts of appeals became responsible for the bulk of federal appeals. It was intended that the decisions of the courts of appeals be ﬁnal in more routine cases, such as diversity, patent, revenue, and admiralty, subject only to discretionary Supreme Court review via the writ of certiorari. Under the new act, when courts of appeals were confronted with novel issues of law that they believed required resolution by the Supreme Court, they were authorized to certify the case to the Court for resolution of those particular questions. For its part, when cases were certiﬁed to the Supreme Court, the justices had discretion to answer the certiﬁcates, call for the whole record from the court of appeals and decide the entire case, or turn down the certiﬁcation. The Circuit Court of Appeals Act worked. The courts of appeals took over the function of oversight of the district courts, freeing the Supreme Court from routine cases. The docket of the Supreme Court was substantially relieved for many years. Increasingly, the Supreme Court became a public law court making public policy. The creation of the courts of appeals did more than give the Supreme Court desperately needed assistance. It made it possible for the federal courts to keep up with rising number of cases which arose from the broadened role of the federal government during the Progressive era. In a little more than two decades, Congress passed the Interstate Commerce Commission Act (1887), the Sherman Antitrust Act (1890), the Elkins and Hepburn Acts regulating railroads (1903; 1906), and the Clayton and Federal Trade Commission Acts (1914), aimed at unfair business practices. Additionally, there were regulatory statutes to protect the consumer, such as the Pure Food and Drug and Meat Inspection Acts (1906). Federal criminal jurisdiction was greatly broadened by passage of laws aimed at white slavery, narcotics, and liquor. Because of this rapid increase in federal jurisdiction, the lower federal courts during this period were being [ 61 ]

THE EARLY YEARS, 1891–1929

transformed from courts dealing primarily with diversity cases, a few federal specialties, such as admiralty, bankruptcy, trademark, and several other classes of cases, into courts with a heavy public law docket, requiring the interpretation of federal statutes, the application of federal criminal laws, and the oversight of administrative agencies. The courts of appeals succeeded so well that by passage of the law known as the Judge’s Bill or the Judiciary Act of 1925,28 there was difﬁculty in greatly enlarging the Supreme Court’s discretionary jurisdiction. Under that law, the classes of appeals that the Supreme Court was required to hear were largely reduced to cases growing out of the antitrust and interstate commerce laws, suits to enjoin the enforcement of state statutes and the actions of state ofﬁcials, and writs of error brought by the United States in criminal cases.

Judicial Administration in the Eighth Circuit The Court of Appeals for the Eighth Circuit met for the ﬁrst time on June 16, 1891, in St. Louis. Circuit Justice David Brewer and Circuit Judge Henry Clay Caldwell, who had succeeded Brewer as circuit judge in 1890, were in attendance. When the court heard its ﬁrst case on October 12, 1891, Judge Caldwell presided. He was joined by two district judges, Amos Thayer of the Eastern District of Missouri and Moses Hallett of the District of Colorado. Walter Sanborn, who had been appointed to the second judgeship provided by the act, took his seat on the bench in the spring of 1892. The Eighth Circuit Court of Appeals was busy from the beginning. In 1892 it disposed of 120 cases, 30 percent of the cases of all nine courts of appeals.29 In 1893, the court disposed of 145 cases out of a nationwide total of 684. Congress responded by creating a third judgeship in 1894, to which Amos Madden Thayer was appointed. 30 However, six years later, in 1900, the Eighth Circuit disposed of 191 cases (compared with 917 for all nine circuits). In 1903 Congress added still another judgeship.31 During the ﬁrst decade of extensive government regulation, the number of cases heard in the Eighth Circuit climbed from 147 (1904) to 241 (1910). By its second decade, in addition to the frequent sittings in St. Louis, the Court of Appeals was meeting once a year in St. Paul and Denver. From 1891 to 1919, the Eighth Circuit was often the busiest court of appeals.

[ 62 ]

THE EARLY YEARS, 1891–1929

During the second decade of the twentieth century, the caseload of the Court of Appeals was erratic. In 1911, the court decided 335 cases; in 1913, only 104; in 1915, 284. When Congress abolished the U.S. Commerce Court in 1913, Judge John Emmett Carland, who had been the U.S. district judge for South Dakota before being named to the commerce court, was assigned to the circuit. The position lapsed with his death. The docket pressed harder in the 1920s. The Court of Appeals led the circuits in dispositions in 1923 (322) and 1927 (492), and its backlog grew. Congress added two more judgeships in 1925, but there was a net gain of only one because of the death of Carland.32 By the middle of the 1920s, there was a growing feeling that rather than the creation of another one or two judgeships, more radical surgery was in order. While the caseload per authorized judgeship did not by itself justify division of the circuit, there were other reasons for doing so. First, district judges were being worked too heavily—40 percent of the decisions of the Court of Appeals were being written by district judges.33 Second, because of the circuit’s geographic size, judges spent too much time traveling from their homes to the place of sitting. Third, it was argued that it was becoming increasingly difﬁcult to keep the case law of the Eighth Circuit consistent because of the number of court of appeals judges, the use of district judges, the number of cases, and geographical distance. The problems of the Eighth Circuit during the 1920s were not unique. Prohibition and growing federal regulation were trying the resources of most of the federal courts. However, the problem seemed more serious in the Eighth Circuit than elsewhere. In 1927, a subcommittee of the American Bar Association recommended attacking the problems of the federal judiciary on a national basis. It suggested redrawing the lines of every circuit, adding an additional circuit, and creating a number of additional judgeships. This holistic solution encountered a fusillade of criticism. As earlier and later warriors in the trenches of federal judicial reform have to their misfortune learned (often belatedly), when remapping the federal circuits is proposed, lawyers, judges, and politicians develop sudden, extraordinary circuit loyalty. Inextricable connections are found to justify keeping New York with Vermont in the Second Circuit, for example, or Tennessee with Michigan in the Sixth Circuit. As a result, Congress in the twentieth century has found it virtually impossible to undo the handiwork of the nineteenth-century Congresses. The ABA subcommittee was sharply criticized for recommendations

[ 63 ]

THE EARLY YEARS, 1891–1929

that moved states into different circuits, for ending the link between the number of circuits and the number of justices, and for proposing that New York State be made a circuit of its own. In the midst of all the criticism of the subcommittee proposals, it was possible to discern considerable support, including that from the unusually inﬂuential chief justice, William Howard Taft, for dividing the Eighth Circuit. Following a suggestion of Justice Van Devanter, Representative Maurice Thatcher of Kentucky introduced a bill in 1928 that would have divided the Eighth Circuit on an east-west axis, creating a northern and a southern circuit. Such a division made sense from the standpoint of travel because the major railroad lines ran east to west. The ABA established a committee of Eighth Circuit attorneys to consider the issue. The division of the Eighth Circuit occurred with extraordinary speed for any legislative action, but miraculously rapid for reform in judicial administration. Only three obstacles had to be overcome. Senior Judge Kimbrough Stone would not admit that the Eighth Circuit had any kind of backlog problem. The judges had to be convinced that dividing the circuit would not preclude immediately creating additional judgeships. Finally, there was the sensitive problem of determining which state would go into which circuit. It was the willingness of Congress to create additional judgeships that made the division of the circuit a reality. Although Kimbrough Stone bristled at the notion that anyone would believe his circuit was “even one case behind in its docket,” he would get behind division so long as additional judgeships were created.34 All the members of the Court of Appeals signiﬁed their support for division by putting forth their own plan. Their proposal was for three circuits, each rotating around a seat of the court. The St. Louis circuit would have consisted of Missouri, Kansas, and Arkansas; the St. Paul circuit of Minnesota, Iowa, Nebraska, and the Dakotas; the Denver circuit of Colorado, Wyoming, Utah, New Mexico, and Oklahoma. This plan had the virtue of interfering little with the present seats of the court and would have left room for future growth, but it commanded no support outside the court. While the plan itself went nowhere, it demonstrated that the members of the court were not adamantly opposed to division. The plan that gained widespread support was put forward in H.R. 13567, introduced by Representative Walter H. Newton of Minnesota in May 1928. Newton proposed to divide the court into eastern and western circuits. In this way, agricultural and manufacturing litigation would cluster in the eastern circuit, and mining and irrigation cases in [ 64 ]

THE EARLY YEARS, 1891–1929

the western. The two sitting judges from the western part—Lewis of Colorado and Cotterall of Oklahoma—were to join the new circuit, which was also to receive two new judgeships. The reorganized Eighth Circuit would be constituted by four sitting judges (Stone, Kenyon, Booth, and Van Valkenburgh) and receive one new judgeship. The Newton bill sped through the Congress. By the close of the third day of congressional hearings (January 11, 1929), all the Court of Appeals judges, sixteen district judges from the circuit, the American Bar Association, and eight state bar associations had endorsed the bill. The House passed the bill unanimously on February 11, 1929. As the valuable support of the chairman of the Senate Committee on the Judiciary, George W. Norris, had been ensured by the expedient of adding Omaha to the places the revised Eighth Circuit could sit, the Senate passed the House bill on February 23 with only a single amendment—Kansas City was also to be made a seat of the new court, the U.S. Court of Appeals for the Tenth Circuit. The House agreed to the Senate amendment on February 25. President Coolidge signed the bill into law on February 28, 1929.35 With a bare minimum of political posturing, acrimony, and other causes of delay, the Eighth Circuit was divided. The Judges Fourteen men served as judges of the U.S. Court of Appeals for the Eighth Circuit between 1891 and 1929. Although none of their names are household words, several were judges of considerable distinction. Missouri had the largest number of appointees—four. From 1925 on, the bench included two judges from Missouri. There was at least one Minnesotan on the court throughout the entire period, and two sat together in the last years. An Iowa seat on the court may be said to have begun with the appointment of Walter I. Smith in 1911. When Smith died in 1922, he was succeeded by William Kenyon. No other state had more than one appointee to the court, and four—North Dakota, Nebraska, Utah, and New Mexico—had none. Half of the judges were elevated to the Court of Appeals from the federal district bench, and one, John E. Carland, had also served as a district judge, but he was assigned to the Eighth Circuit from the shortlived Commerce Court. Four of the appointees had served on state courts. Three had served as U.S. Attorneys and two others—Van Devanter and Kenyon—had important legal experience with the federal government. [ 65 ]

THE EARLY YEARS, 1891–1929

All but Arba Van Valkenburgh had run for ofﬁce or held high party ofﬁce, but none held high state ofﬁce, and only two had served in the Congress. As all the presidents who made appointments were Republicans save Cleveland and Wilson, only a few Democrats were appointed, although both Theodore Roosevelt and Calvin Coolidge crossed party lines once with appointments.

Benjamin Harrison’s Appointments The fourth circuit judge and the ﬁrst senior judge of the Court of Appeals for the Eighth Circuit, Henry Clay Caldwell (1890–1903), had, like the circuit, roots in both the North and the South. Born in Virginia, Caldwell grew up on a farm in Iowa. He read law in Keosauqua with the ﬁrm of Wright and Knapp, with whom he practiced after being admitted to the bar in 1851. An early supporter of the Republican Party, Caldwell was elected to the Iowa House of Representatives and quickly became chairman of its judiciary committee. When the Civil War broke out, Caldwell joined the Third Iowa Cavalry with the rank of major. He saw action in the lower Mississippi Valley and led the advance column that took Little Rock. Leaving the army with the rank of colonel, Caldwell sought, and with the support of Samuel F. Miller received, the appointment as district judge from Arkansas. Although Arkansas had two judicial districts at the time, only one federal judge was provided by Congress until 1871.36 A so-called carpetbagger, Caldwell cautiously made his way through the mineﬁeld of Reconstruction. He was called on to enforce laws conﬁscating the property of Confederates and contracts that had arisen from the purchase and sale of slaves. Cases involving enforcement of the Fourteenth Amendment and elections also came before him. Yet during Reconstruction, Caldwell was reversed by the Supreme Court only once—in a case where he had refused to enforce a promissory note in payment for the sale of a slave.37 Very popular in the South and well respected in the North, Caldwell was under consideration as early as 1869 for a seat on the Supreme Court. Justice Miller was a strong advocate—he called Caldwell “the ablest District Judge that is in my circuit and equal to any I believe in the United States.” Miller added that Caldwell “has all the elements of an able judge, and will be if appointed as pure, and as impartial as it is in the nature of man to be.” 38 Caldwell would be considered for the Supreme [ 66 ]

THE EARLY YEARS, 1891–1929

Court by presidents Hayes, Cleveland, and Benjamin Harrison. He was also mentioned as both a possible Republican and a possible Democratic candidate for vice president.39 The judge was a tall man, standing over six feet with a large head and broad forehead. He wore a beard that, the older he got, the longer it grew, so that by the time of his retirement, he “had the appearance of a trapper or mountain man.” 40 A judge who did not avoid extrajudicial activities, Caldwell led the ﬁght in the state for married women’s individual property rights and was a supporter of women’s suffrage. He wrote the Arkansas homestead law and prepared the act that permitted debtors to try suits to vacate usurious mortgages without initially having to pay the ﬁrst lender the principal and interest of the loan. He also urged that the state prohibit all encumbrances on the homestead and limit the mortgaging of crops. As a judge, Caldwell saw the law “as an active vehicle of substantive justice.” He possessed a “homespun populist philosophy” coupled with “an extreme sense of fairness.” 41 Caldwell’s reputation for standing up to the railroads and their principal bondholders developed as a result of his approach to railroad receiverships discussed in the last chapter. He required that parties requesting the appointment of a receiver for a railroad agree to permit the receiver to pay preferentially all future claims of supplies in cash and allow the receiver to be sued at law in state courts, especially for torts that the railroad had committed. Appointed circuit judge at the age of ﬁfty-seven over Walter Sanborn and Amos Thayer, Caldwell seemed reluctant to leave home and “live the life of a ‘tramp’ wandering all over the vast territory that made up the Eighth Judicial Circuit.” 42 His burden, however, was relieved quite considerably by passage of the Circuit Court of Appeals Act shortly thereafter. During twelve years on the Court of Appeals, Caldwell wrote 306 opinions for the court, thirty dissents, and one concurring opinion. With his health declining, Caldwell tendered his resignation on June 2, 1903, after thirty-nine years on the bench. He died twelve years later.43 Benjamin Harrison’s second appointee, Walter Henry Sanborn (1892–1928), was among the most able judges to have sat on the Court of Appeals for the Eighth Circuit. Sanborn was born on October 19, 1845, in Epson, New Hampshire, “in the same farm house that was the birthplace of his father, grandfather and great grandfather.” 44 After graduating from Dartmouth College as valedictorian of his class, Sanborn taught school for three years and served as principal of the Milford High School before [ 67 ]

THE EARLY YEARS, 1891–1929

moving in 1870 to St. Paul. Sanborn studied law in New Hampshire in the law ofﬁce of Bainbridge Wadleigh, later U.S. senator, and in Minnesota with his uncle John B. Sanborn. John Sanborn had been a general in the Civil War. After the war, he served on the Peace Commission created to negotiate with Native American tribes. “Black Whiskers” Sanborn was one of the few commissioners the Native Americans trusted.45 After being admitted to the Minnesota bar, Walter Sanborn practiced law with his uncle. In two decades of practice, Sanborn was involved in more than four thousand cases.46 While he was practicing law, Sanborn was a member of the St. Paul City Council and Republican county chairman. Active in the Minnesota State Bar Association, Sanborn was elected its President in 1890. The ﬁrst Minnesotan to be appointed to the federal bench since 1858, Sanborn took his seat on May 2, 1892 and remained on the Court of Appeals until his death in 1928. With a commanding presence, piercing eyes, Van Dyke beard, and barrel chest, Sanborn was a dominating ﬁgure in conference and open court.47 In his distinguished thirty-six year career, Sanborn wrote 1,300 opinions. Perhaps his most important came in the antitrust prosecution of Standard Oil. Sanborn and his Eighth Circuit colleagues, William C. Hook and Willis Van Devanter, were rivals for appointment to the Supreme Court, which seems to have strained relations for a time at least between Sanborn and Van Devanter.48 Theodore Roosevelt worried about the breadth of Sanborn’s views regarding the Commerce Clause in 1906 when he chose William Moody. Taft passed over Sanborn in 1910 because of age, ﬁxing on Van Devanter.49 Sanborn remained on the court until his death in 1928. At the memorial proceedings, his colleagues wrote of Sanborn: “His opinions are masterpieces in legal literature, containing no subterfuge, leaving no opposing contention unanswered, showing upon their face the wide scope of his investigation, the thoroughness of his study, and the soundness of his reasoning.” 50 Four years after Walter Sanborn’s death, his cousin John B. Sanborn Jr., then U.S. district judge for the District of Minnesota, was elevated to the Court of Appeals. He would serve until 1964 with great distinction.51

Grover Cleveland’s Appointment To ﬁll the seat created by Congress in 1894, President Grover Cleveland appointed Amos Madden Thayer (1894 –1905), then district judge for [ 68 ]

THE EARLY YEARS, 1891–1929

the Eastern District of Missouri. Born in Mina in upstate New York, Thayer graduated from Hamilton College, served as an ofﬁcer in the Union army, and read law with his uncle. Thayer practiced law in St. Louis from 1868 to 1876, when he was elected judge of the state circuit court. Cleveland appointed him district judge in 1887. As district judge, Thayer frequently sat with Judges Caldwell and Sanborn, who thought highly of him, as did Justice Brewer. Thayer’s opinions suggest a willingness to adjust legal doctrines to the needs of society. In 1890, Thayer began teaching at the Washington University School of Law. He compiled a book, Jurisdiction of the Federal Courts (1895), and also authored A Synopsis of the Law of Contracts. His most notable opinion came in the Northern Securities case, upholding the United States.52

Theodore Roosevelt’s Appointments The most notable, although not the most able, judge of the Court of Appeals for the Eighth Circuit during this period, Willis Van Devanter (1903–10), succeeded David Brewer on the Supreme Court. Born in Marion, Indiana, Van Devanter received his law degree from the University of Cincinnati Law School, then practiced law for three years in Indiana before moving to Cheyenne in 1884. Van Devanter came to Wyoming when it was booming and became a prominent attorney, representing big cattle, railroad, and land interests. He practiced throughout the large state, traveling by stagecoach and horseback, and was as comfortable in handling cattle-rustling cases as in representing the Union Paciﬁc Railroad. Active in Republican politics and a close ally of the territorial governor Francis E. Warren, to whom he was conﬁdant, counsel, and political manager, Van Devanter served as a commissioner to revise the statutes of Wyoming, as city attorney for Cheyenne, Republican leader of the territorial legislature, and Republican state chairman. In 1889, at the age of thirty, Van Devanter became Chief Justice of the Territorial Court and, for a short time, the ﬁrst Chief Justice of the state before he resigned to return to private practice. Although his state judicial career was brief, Van Devanter had ambitions for a federal judgeship, seeking appointment to the Eighth Circuit in 1891, as well as to other judicial positions.53 Francis Warren began serving in the U.S. Senate in 1890. Warren became Van Devanter’s man in Washington as Van Devanter was Warren’s man in Wyoming. [ 69 ]

THE EARLY YEARS, 1891–1929

However, in 1897 Van Devanter moved to Washington himself, seizing the opportunity to become assistant attorney general in the Department of the Interior. There he deepened his expertise in the laws governing public lands, riparian rights, mining, and Native Americans (arguing the landmark case of Lone Wolf v. Hitchco*ck,54 which recognized near-absolute plenary congressional power over Indian affairs) that would later make him invaluable on the Eighth Circuit and also proved useful on the Supreme Court. In 1903 Theodore Roosevelt appointed Van Devanter to the newly created seat on the Eighth Circuit. As a member of the Court of Appeals, Van Devanter was a sound judge, a good technician who held his own on a strong bench. At this point, he did not demonstrate the judicial conservatism that would characterize the latter part of his career on the Supreme Court. In the two most important cases on which he sat, Van Devanter ruled for the United States in the Northern Securities and Standard Oil antitrust cases. He applied federal statutes regulating railroads sympathetically, although he “was generally a hard man to get a judgment for the plaintiff from” in a negligence case.” 55 While serving on the Court of Appeals, Van Devanter presided over several dozen major circuit court cases, including antitrust prosecutions, railroad rate cases, and trials for political corruption. Although he was not as productive an opinion writer as some of his colleagues, at this time he did not suffer from the pen paralysis that afﬂicted him on the U.S. Supreme Court. Although Van Devanter loved the West—at one point hunting grizzly bears in the Bighorn Mountains with Buffalo Bill—his eyes were on Washington. His effective mentor, Francis Warren, was working for his interests, as were a growing number of Washington friends. A serious candidate for secretary of the treasury in 1909, Van Devanter was nominated to the Supreme Court the following year. Van Devanter was only able to deliver 346 majority opinions in twenty-six years on the Supreme Court. In his ﬁnal years, he averaged just three opinions a term. Yet his colleagues thought him invaluable. In the conference of justices, Van Devanter was a star. The Court relied on him in difﬁcult and arcane matters—jurisdictional disputes, as well as cases involving land, Indians, water rights, and admiralty law. He was a trusted adviser to Chief Justices White and Taft, a constructive critic of his colleagues’ opinions, and a consensus builder. Although in his last years on the Court Van Devanter was strongly anti–New Deal, his re[ 70 ]

THE EARLY YEARS, 1891–1929

tirement in May 1937 helped defuse the court-packing crisis by giving Franklin D. Roosevelt an immediate appointment to the High Court. Thereafter Van Devanter served as a judge in the Southern District of New York, trying complex criminal cases. He died in 1941 at the age of eighty-one.56 Roosevelt’s second appointee, William C. Hook (1903–21) almost received the Supreme Court appointment that went to Van Devanter. President William McKinley named Hook to the District Court for the District of Kansas in 1899. With a reputation as an “antitruster,” Hook was elevated to the Court of Appeals in 1903. He turned out to be an unusually able judge with good judgment, sound judicial temperament, and the ability to write opinions that read well today. A leading candidate to succeed Justice Brewer in 1910, Hook was passed over because of the assiduous lobbying for Van Devanter and because President Taft may have feared that a Hook appointment would be seen as giving in to Republican insurgents. He had strong support for appointment the following year, but this time he lost out to Mahlon Pitney, partially because of the claims of the Third Circuit to a seat on the Court, but also because he was branded unfairly as being pro-railroad and antiblack. What was written at his death remains true: that few men have come “so near to being appointed to the Supreme Bench and not be, as Judge Hook, and that on two occasions.” 57 Elmer B. Adams (1905–16) succeeded Thayer in 1905. Adams served as judge of the Missouri Circuit Court from 1879 to 1885, practiced law for a decade, and was appointed by Grover Cleveland to succeed Thayer as judge of the Eastern District of Missouri. Theodore Roosevelt elevated Adams, a Democrat, to the Court of Appeals.58

William Taft’s Appointments William Howard Taft made two appointments to the Court of Appeals. The ﬁrst, Walter I. Smith (1911–22), was a member of the U.S. House of Representatives from Iowa at the time of his appointment in 1911. 59 The second, John E. Carland (1913–22), was actually appointed by Taft to the ill-fated Commerce Court in 1911.60 After the demise of that court in 1913, Carland, the U.S. district judge for South Dakota from 1896 to 1911, was continued as a member of the Court of Appeals for the Eighth Circuit.61 However, after Carland’s death in 1922, the position ceased to exist. [ 71 ]

THE EARLY YEARS, 1891–1929

Woodrow Wilson’s Appointment Woodrow Wilson made only one appointment to the Court of Appeals, but it was long lasting. Kimbrough Stone served on the court from 1917 until 1958 and was its senior judge for nineteen years (1928–47). The son of Wilbur Stone, a governor of Missouri and U.S. senator, Kimbrough Stone will be discussed at greater length in the following chapter.62

Warren Harding’s Appointments President Harding made two appointments to the Court of Appeals. Robert E. Lewis (1921–29) had been an unsuccessful candidate for Congress and for governor of Missouri, before moving to Colorado, where he was elected to a state judgeship. Lewis served on the U.S. District Court for the District of Colorado from 1906 to 1921. When the circuit was divided in 1929, Lewis became the ﬁrst senior judge of the Tenth Circuit.63 Harding’s second appointment to the Court of Appeals, William Squire Kenyon (1922–33), had been a state judge but was much better known as a member of the U.S. Senate from Iowa between 1911 and 1922. Kenyon was a leading Progressive, who cosponsored the Clayton, Federal Trade Commission, and Child Labor Acts. His most important legislative work, though, may well have been the creation of the bipartisan “farm bloc” in 1921, which produced a string of legislative successes including the Packing and Stockyards Control Law, regulation of the grain exchanges and futures trading in grain, and the Fordney-McCumber Tariff. Because he offered Kenyon a seat on the Court of Appeals, Harding was accused of attempting to seriously weaken the farm bloc. In 1924, Kenyon received 172 votes for the vice presidential nomination of the Republican Party. He was also seriously considered for the Supreme Court vacancy in 1930 that was ﬁlled by Owen Roberts.64

Calvin Coolidge’s Appointments Calvin Coolidge made three appointments to the Court of Appeals. The ﬁrst, William Franklin Booth (1925–32), had been U.S. district judge for the District of Minnesota. As part of the political horse-trading con-

[ 72 ]

THE EARLY YEARS, 1891–1929

nected with passage of the 1925 Judiciary Act, Booth, a Democrat who had the support of Chief Justice Taft and Justice Van Devanter, was nominated to the Court of Appeals by Coolidge.65 Coolidge’s second appointee was Arba Van Valkenburgh (1925–33). As U.S. Attorney for the Western District of Missouri, Van Valkenburgh had aggressively prosecuted railroads for paying rebates. As U.S. district judge for the Western District of Missouri, Van Valkenburgh was perhaps best known for his harsh rulings in cases growing out of the First World War.66 John H. Cotterall (1928–29), Coolidge’s third appointee, had served less than a year on the Court of Appeals when the circuit was divided and he was transferred to the Tenth Circuit. Cotterall had been one of the Sooners who entered Oklahoma on April 22, 1889, the day nearly two million acres were opened for settlement. Cotterall served as judge of the Western District of Oklahoma from 1907 until his appointment to the Court of Appeals in 1928. He would serve as judge of the Court of Appeals for the Tenth Circuit until 1933.67

Two District Judges During this period, panels of the Court of Appeals were ordinarily made up of two courts of appeals judges and one district judge. Thus the participation of district judges was very much a part of the life of the Court of Appeals. During this period, there were two exceptional district judges who made major contributions to the law of the Eighth Circuit both at the trial and at the appellate level: Charles Fremont Amidon and Jacob Trieber. Amidon, judge of the U.S. District Court for the District of North Dakota from 1897 to 1928, wrote more than 150 opinions for the Court of Appeals and was a quintessential Progressive with a dynamic view of the law and a broad view of national power. Sympathetic to the rights of labor, Amidon was one of the handful of federal judges who, during and just after World War I, resisted intolerance and xenophobia and protected civil liberties.68 Trieber, the ﬁrst Jewish federal district court judge, and a very liberal one to boot, was judge of the Eastern District of Arkansas from 1900 to 1927. From 1913 until his death, Trieber heard more than 350 Court of Appeals cases, writing opinions in more than two-thirds. In cases involving racial civil rights, Trieber was generations ahead of his time.69

[ 73 ]

THE EARLY YEARS, 1891–1929

Jurisprudence In the early years of the courts of appeals, much of the work was far from glamorous. The courts’ reason for existence was to free the Supreme Court from relatively routine appellate review, and so it was that the “great cases” continued to go to the Supreme Court: whether the Constitution followed the ﬂag, whether the federal income tax was constitutional, whether state maximum-hours laws violated the right to contract. At ﬁrst, when important, novel questions arose before the courts of appeals, they were certiﬁed to the Supreme Court. Nevertheless, important issues of public policy did come before the judges of the Court of Appeals for the Eighth Circuit between 1891 and 1929. If relatively few of them occurred in the federal staples of the years before 1890, enactment of the Sherman Antitrust Act, as well as of legislation during the Progressive era, greatly enriched what came before the Courts of Appeals—statutes requiring interpretation, regulators requiring oversight. The major sources of important jurisprudence for the Eighth Circuit Court of Appeals continued to be disputes over land, railroad cases, and cases involving Native Americans, although there were a few important cases involving farming. A new regional specialty was cases spawned by the radical politics of the northern part of the circuit—cases involving the Nonpartisan League. The impact of national developments may be seen not only in the cases involving the Sherman Act and Progressive legislation but also in prosecutions during World War I under the Sedition and Espionage Acts. Space precludes more than a brief discussion of the jurisprudence generated by labor-management conﬂicts and mineral leasing rights. Two signiﬁcant racial civil rights cases from this period are discussed later in chapter 4. On the whole, the Court of Appeals strongly supported antitrust prosecutions, restrained state regulation of railroads, supported the federal policy of assimilation for Native Americans, and was notably sensitive to individual rights during World War I.

Disputes over Land, Including Mining There continued to be much litigation over land. Litigation related to the Homestead Laws and the Timber Laws persisted. There were also suits over federal laws that provided for the allocation of land to railroads and over land granted to states at the time they were admitted to [ 74 ]

THE EARLY YEARS, 1891–1929

the Union. Many suits were brought by the United States to quiet (i.e., make secure) title to land in the public domain. Important litigation growing out of land allocated to Native Americans is discussed in a separate section later in this chapter. There were two land cases of far more than technical interest, both over petroleum-bearing land in Wyoming. In 1897, Congress had opened public land, chieﬂy valuable for petroleum and mineral deposits, to exploration and purchase by U.S. citizens. Shortly thereafter, concern grew that the oil deposits were being depleted too rapidly. William Howard Taft, surely among the least imperial of presidents, withdrew three million areas of public land without express statutory authority to do so. Congress then passed a law on the subject, but the law neither ratiﬁed nor overruled Taft’s proclamation. The Midwest Oil case involved an action by the United States to recover some of the land Taft had withdrawn in Natrona County that was still being exploited and to obtain an accounting for ﬁfty thousand barrels of oil that allegedly had been illegally extracted. John A. Riner, Wyoming’s federal district judge, upheld the company’s claim. Anticipating that the case would be appealed because of the signiﬁcance of the issue and the value of the land, Riner wrote an opinion, a little over a page long, that held that, in the absence of a statute, the president lacked the authority to act on his own.70 The United States appealed. The role of the Court of Appeals proved to be that of a conduit, certifying questions to the Supreme Court, which then directed that the entire record be sent up. The Supreme Court reversed the district court by a vote of ﬁve to three.71 Midwest Oil would come to stand for an important proposition in constitutional interpretation—that long-standing usage may generate a presumption on behalf of the legitimacy of governmental action. Since the nation’s early history, presidents had been withdrawing land, which Congress by general statute had thrown open to American citizens. Justice Joseph R. Lamar, who wrote the opinion for the Supreme Court, thought that such a presumption was entitled to some weight. Government was, Lamar wrote, “a practical affair intended for practical men . . . Ofﬁcers, law-makers and citizens naturally adjust themselves to any longcontinued action of the Executive Department—on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice.” 72 In dissent, Justice William R. Day argued that the grant of constitutional authority to the executive, as [ 75 ]

THE EARLY YEARS, 1891–1929

to other departments of the government, “ought not to be ampliﬁed by judicial decision.” 73 Midwest Oil would become a precedent trotted out by latter-day presidents to defend sweeping uses of executive power.74 The second case, United States v. Mammoth Oil Co.75 involved some of the same Wyoming land that Taft had withdrawn from private development in 1909. In 1920, by statute, Congress gave the secretary of the navy power to meet the problem of conserving certain oil reserves on this land, making it clear that it was of vital importance that the oil reserves not be drained away for private beneﬁt, for it would be insurance if the navy needed oil in an emergency. Shortly after Warren Harding took ofﬁce in 1921, he signed an executive order transferring those reserves to the custody of the Interior Department. Secretary of the Interior Albert B. Fall then, secretly and without competitive bidding, leased Reserve No. 3, the Teapot Dome reserve in Natrona County, to Harry F. Sinclair’s Mammoth Oil Company. Later it would be discovered that Fall had received $260,000 in Liberty Bonds from Sinclair.76 When the Teapot Dome scandal broke after the death of President Harding, Congress, by joint resolution, called for the federal government to take legal action to have the public lands whose resources had been purloined returned, and to void the leases and rescind the contracts that authorized Mammoth Oil to take the petroleum.77 The United States went into the District Court in Wyoming to have the lease and contract canceled, arguing that they had been secured fraudulently, as a result of a conspiracy between Fall and Sinclair. Although the defense contended that no criminal conduct had been involved, neither Sinclair nor Fall testiﬁed at the trial. Although their not doing so was protected by the privilege against self-incrimination, it was highly suspect in what was an action in equity rather than a criminal prosecution. Nevertheless, Judge T. Blake Kennedy held that both the lease and agreement had been authorized by the special act of Congress and that there had been neither fraud nor conspiracy connected with the lease and contract.78 Kennedy was harshly criticized for his decision, which probably cost him elevation to the Court of Appeals.79 The Court of Appeals, former Senator Kenyon writing, agreed that the lease and contract had been authorized by the act of Congress, but reversed, holding that the lease and contract had been secured fraudulently. The court was clearly persuaded by the silence and evasions of many of those connected with the affair. For example, Kenyon asked rhetorically about Sinclair: [ 76 ]

THE EARLY YEARS, 1891–1929

Why is silence the only reply of Sinclair, a man of large business affairs, to the charge of bribing an ofﬁcial of his government? . . . It would seem that men of standing in the business world when accused of being bribers, would be quick to resent the charge, and eager to furnish all information possible that might remove such stain upon their reputations.80

Kenyon noted that “a court of equity [still] has the right to draw reasonable and proper inferences from all the circ*mstances in the case” and concluded that a “trail of deceit, falsehood, subterfuge, bad faith and corruption” ran through the transactions incident to and surrounding the making of the lease, which should not receive the approval of the courts.81 Mammoth Oil was remanded to Judge Kennedy with instructions that he enter a decree canceling the lease and contract, enjoining the appellees from further trespassing, and providing for an accounting for the value of the oil taken. The Supreme Court held that Kennedy had been wrong about both aspects of the case: the lease and contract had not been authorized by act of Congress and therefore were void; the facts and circ*mstances required a ﬁnding that “Fall and Sinclair, contrary to the Government’s policy for the conservation of oil reserves for the Navy and in disregard of law, conspired to procure for the Mammoth Company all the products of the reserve.” 82 In the nineteenth century, the Eighth Circuit had handled much litigation over the Federal Mining Law of 1872.83 In a case spawned in Utah, United States v. Sweet,84 the Supreme Court settled the principle that, under the 1873 Coal Land Act, the federal government retains the rights to minerals underneath land it has granted to the states. Congress punctuated the decision with a statute, the Mineral Leasing Act of February 25, 1920, which mandated that coal-bearing substrata remains forever with the federal government and may be worked only under federal lease.85 The Sweet decision and the statute have become the cornerstone of American land law, a precedent for national ownership of mineral lands.86 Finally, the United States also emerged the victor in a series of prosecutions brought during Theodore Roosevelt’s presidency against the owners of some of Nebraska’s largest ranches to deter the fencing of government land and other illegal practices used to increase landholding. When the two owners of the enormous Spade ranch, Bartlett Richards and Will G. Comstock, were prosecuted for fencing in their land, they were able to cop a plea and received a slap on the wrist from [ 77 ]

THE EARLY YEARS, 1891–1929

Judge William H. Munger—a $939 ﬁne plus six hours in the custody of the U.S. Marshal—after the U.S. Attorney recommended a light sentence. Roosevelt was furious. He discharged the U.S. Attorney and U.S. Marshal and apparently said that he regretted that he could not discharge the judge. The new U.S. Attorney, Charles A. Goss, secured indictments against twenty-six ranchers (including Richards and Comstock) for conspiracy in securing fraudulent land titles. This time a different judge, Thomas C. Munger, ﬁned Richards and Comstock $1,500 each and sent them to prison for one year.87 So much land was reopened that a great inﬂux of homesteaders occurred.

Antitrust Cases Some of the most important work performed by the judges of the Circuit Court of Appeals occurred in the area of antitrust law, which, at the turn of the century, was among the most visible and contentious areas of law, invested by both legal commentators and the general public with an importance far transcending its real potential. The judges of the Court of Appeals for the Eighth Circuit, sitting as circuit court judges,88 decided two of the most eagerly awaited antitrust decisions in the early history of the Sherman Act—the Northern Securities and Standard Oil decisions. The Act of July 2, 1890, or Sherman Antitrust Act, had two principal sections.89 The ﬁrst made illegal every contract, combination in the form of trust, or conspiracy in restraint of trade. The second section prohibited monopolies or combinations or conspiracies to monopolize any part of trade or commerce. While there were difﬁcult questions as to how wide or deep the Sherman Act might sweep, the law was not applied vigorously in its early years. It took over a decade until the administration of Theodore Roosevelt began serious enforcement. By that time, the Supreme Court had damaged the act by its holding in the 1895 E. C. Knight case that the act could not constitutionally reach manufacturing because “manufacturing” was not “commerce” and therefore did not come within the Commerce power.90 However, in three decisions handed down in the waning years of the century, the Suprem

Establishing Justice in Middle America: A History of the United States Court of Appeals for the Eighth Circuit - PDF Free Download (2024)