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Litigating the “Public Interest” in the Gilded Age: Common Law Business Regulation by Nineteenth-Century State Attorneys General

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Polity

Abstract

Heeding recent calls to explore the contributions of creative political actors other than federal judges to the process of American legal development, this article examines the role of state attorneys general (SAGs) during the late nineteenth and early twentieth centuries. Consistent with recent revisionist accounts concerning the extent of government power during this era of supposed “laissez-faire,” I find that SAGs creatively employed common law legal theories to address the emerging industrial and corporate order. Through a review of state court cases and newspaper accounts, I discuss how SAGs pursued the “public interest” by seeking injunctions against businesses and even corporate dissolution through public nuisance and quo warranto theories. These efforts to regulate business during the Gilded Age, at a time when standard administrative solutions were absent, directly and indirectly shaped subsequent statutory developments.

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Notes

  1. Charles Austin Beard, Contemporary American History, 1877–1913 (New York: Macmillan Co., 1914); Frank J. Goodnow, Social Reform and the Constitution (New York: Macmillan Co., 1911).

  2. Morton J. Horwitz, The Transformation of American Law, 1870–1960 (New York: Oxford University Press, 1992), 19–20.

  3. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977), 100–1.

  4. Christopher L. Tomlins, Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 95, 105.

  5. William Novak makes this point in William J. Novak, “Law and the Social Control of American Capitalism,” Emory Law Journal 60 (2010): 380–81. For a recent example, see Jed Handelsman Shugerman, “Economic Crisis and the Rise of Judicial Elections and Judicial Review,” Harvard Law Review 123 (2010): 1061.

  6. Charles W. McCurdy, “The Knight Sugar Decision of 1895 and the Modernization of American Corporation Law, 1869–1903,” Business History Review 53 (1979): 304–42; Alan Jones, “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism’: A Reconsideration,” Journal of American History 53 (1967): 751–71. For a summary of revisionist literature, see Stephen A. Siegel, “The Revision Thickens,” Law and History Review 20 (2002): 631–37.

  7. William J. Novak, The People's Welfare: Law & Regulation in Nineteenth-Century America (Chapel Hill, NC: University of North Carolina Press, 1996).

  8. Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, NC: Duke University Press, 1993), 26, 29, 55.

  9.  9 Gerald Berk, Alternative Tracks: The Constitution of American Industrial Order, 1865–1917 (Baltimore, MD: Johns Hopkins University Press, 1994), 13–14.

  10. Novak, “Law and the Social Control,” 378.

  11. Ibid., 391.

  12. William J. Novak, “A State of Legislatures,” Polity 40 (2008): 341.

  13. Julie Novkov, “Bringing the States Back In: Understanding Legal Subordination and Identity through Political Development,” Polity 40 (2008): 24–48.

  14. See Cornell Clayton, “Law, Politics, and the New Federalism: State Attorneys General as National Policymakers,” Review of Politics 56 (1994): 525–53; Colin Provost, “The Politics of Consumer Protection: Explaining State Attorney General Participation in Multi-State Lawsuits,” Political Research Quarterly 59 (2006): 609–18.

  15. The best single resource on the general history of SAGs is a publication by the National Association of Attorneys General that is largely descriptive: Emily Myers and Lynne Ross, eds., State Attorneys General: Powers and Responsibilities, 2nd ed. (Washington, DC: National Association of Attorneys General, 2007). Some scholars have studied the development of individual SAG offices. See, for example, Scott Van Alstyne and Larry J. Roberts, “The Powers of the Attorney General in Wisconsin,” Wisconsin Law Review 1974 (1974): 721–50. Other scholars have discussed state litigation against business during the Gilded Age but have not emphasized the role of SAGs. See McCurdy, “The Knight Sugar Decision”; Hans B. Thorelli, The Federal Antitrust Policy: Origination of an American Tradition (Baltimore, MA: Johns Hopkins Press, 1954).

  16. Hugh H.L. Bellot, “The Origin of the Attorney General,” Law Quarterly Review 25 (1909): 403; John A. Fairlie, “Law Departments and Law Officers in American Governments,” Michigan Law Review 36 (1938): 908; Lynne M. Ross, ed., State Attorneys General: Powers and Responsibilities (Washington, DC: The Bureau of National Affairs, Inc., 1990), 19.

  17. Ross, State Attorneys General, 11.

  18. John J. Bennett, Jr., “The Development of the Law As Seen in the Office of the Attorney-General,” Brooklyn Law Review 1 (1932): 64.

  19. National Association of Attorneys General, Common Law Powers of State Attorneys General (Raleigh, NC: Committee on the Office of Attorney General, 1977), 22–23.

  20. Withee v. Lane & Libby Fisheries Company, 120 Me. 121, 123 (1921).

  21. John Ben Shepperd, “Common Law Powers and Duties of the Attorney General,” Baylor Law Review 7 (1955): 1; Rufus L. Edmisten, “The Common Law Powers of the Attorney General of North Carolina,” North Carolina Central Law Journal 9 (1977): 35.

  22. State v. Boeckler Lumber Co., 302 Mo. 187, 206 (1924) (“The duties of the Attorney-General at common law were so varied and numerous that they have perhaps never been specifically enumerated”).

  23. See, for example, Attorney General v. Chicago and Northwestern Railway Co., 35 Wis. 425, 1874 Wisc. LEXIS 135 (1874).

  24. People v. Miner, 2 Lansing (N.Y.) 396, 398–99 (1868).

  25. For example, see Charles W. Calhoun, ed., The Gilded Age: Perspectives on the Origins of Modern America (Lanham, MD: Rowman & Littlefield Publishers, Inc., 2007).

  26. Gillman, The Constitution Besieged, 63.

  27. Ibid., 26.

  28. Attorney General v. Chicago and Northwestern Railway Co., 35 Wis. 425, 1874 Wisc. LEXIS 135, 168 (1874).

  29. Ibid., 168–69, 175.

  30. Joseph Joyce and Howard Joyce, Treatise on the Law Governing Nuisances (Albany, NY: M. Bender & Co., 1906), §14.

  31. Novak, The People's Welfare, 60.

  32. Donald G. Gifford, “Public Nuisance as a Mass Protects Liability Tort,” University of Cincinnati Law Review 71 (2003): 800–1.

  33. William Blackstone, Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769, Vol. 4 (Chicago: University of Chicago Press, 1979), 167.

  34. Arlen C. Christensen, “The State Attorney General,” Wisconsin Law Review 1970 (1970): 319.

  35. Noga Morag-Levine, Chasing the Wind: Regulating Air Pollution in the Common Law State (Princeton, NJ: Princeton University Press, 2003).

  36. People v. Gold Run Ditch and Mining Co., 66 Cal. 138, 145, 151–52 (1884).

  37. People v. Truckee Lumber Co., 116 Cal. 397, 402 (1897).

  38. State v. Ohio Oil Co., 150 Ind. 21 (1898); Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361 (1882).

  39. A Lexis-Nexis search revealed nearly three thousand lawsuits by states against railroad companies in the fifty years following the Civil War (1865–1915). This number is an approximation since the search terms were blunt: [((name(railroad or railway) and name(state or commonwealth or people or “attorney general”))].

  40. Gifford, “Mass Products Liability Tort,” 805–6.

  41. The following terms were used in this Lexis-Nexis search of the years 1865–1915: [(“public nuisance” or “common nuisance”) and (((name(state or people or “attorney general”)) or counsel(“state of Alabama” or “attorney general” or “atty. General” or “attorney gen.” or “atty. gen.” or “atty.-gen.” or “attorney gen.”))]. The search was modified for each jurisdiction, replacing “commonwealth” with “state” when appropriate. I noted each case that was brought against a railroad.

  42. The most active were Kentucky (23 cases), New Jersey (17), Pennsylvania (11), Illinois (9), and New York (8).

  43. See State v. Grand Trunk Railway of Canada, 59 Me. 189 (1871); Attorney-General v. Delaware and Bound Brook Railroad Co., 27 N.J. Eq. 1 (1876); People v. New York, New Haven, and Hartford Railroad Co., 89 N.Y. 266 (1882).

  44. See, for example, State v. Boston & Maine Railroad, 75 N.H. 327 (1909).

  45. Attorney General v. Chicago and Northwestern Railway Co., 35 Wis. 425 (1874).

  46. Louisville, Henderson & St. Louis Railway Co. v. Commonwealth, 144 Ky. 625 (1911) (involving a failure to provide a “suitable and convenient water closet”); Attorney General v. North Jersey Street Railway Co., 54 N.J. Eq. 263 (1896) (involving the placement of poles and wires associated with an electric street railway).

  47. Attorney General v. Chicago and Evanston Railroad Co., et al., 112 Ill. 611 (1884).

  48. State v. Missouri Pacific Railway Co., 71 Kan. 613 (1905).

  49. Louisville & Nashville Railroad Co. v. Commonwealth, 158 Ky. 773 (1914).

  50. Commonwealth v. Cincinnati, New Orleans & Texas Pacific Railroad Co., 139 Ky. 429 (1908).

  51. In Illinois, for example, the Attorney General and each county's State's Attorney had the power to bring quo warranto actions. See, for example, People, ex rel. Charles S. Deneen, State's Attorney v. The People's Gas Light and Coke Company, 205 Ill. 482 (1903).

  52. Hunt v. Chicago Horse and Dummy Railway Co., 121 Ill. 638, 649 (1887). Though the Illinois Supreme Court reversed the lower court in this case, the Supreme Court (in a note to its full opinion) adopted the lower court's analysis of the power of the attorney general to bring this suit.

  53. Morag-Levine, Chasing the Wind, 57. The book refers to limits to the use of common law to control industrial pollution in England, but similar limits existed in America.

  54. Attorney General v. Tudor Ice Co., 104 Mass. 239, 240–41 (1870).

  55. James L. High, A Treatise on Extraordinary Legal Remedies, 3rd ed. (Chicago: Callaghan & Co., 1896), §592–93.

  56. Chester James Antieau, The Practice of Extraordinary Remedies (New York: Oceana Publications, 1987), §4.07.

  57. Lawrence Meir Friedman, A History of American Law, 3rd ed. (New York: Touchstone, 2005), 129–35.

  58. David Scuilli, Corporations versus the Court: Private Power, Public Interests (Boulder, CO: Lynne Rienner, 1999), 91.

  59. See, for example, State ex rel. Attorney-General v. Gilbreath, 48 Mo. 107 (1871) (involving the Missouri SAG's use of quo warranto to oust a justice of a county court).

  60. People v. North River Sugar Refining Co., 121 N.Y. 582 (N.Y. 1890).

  61. The following terms were used in this Lexis-Nexis search for the years 1865–1915: [“quo warranto” and ((name(state or people or “attorney general”)) or counsel (“state of Alabama” or “attorney general” or “atty. General” or “attorney gen.” or “atty. gen.” or “atty.-gen.” or “attorney gen.”))]. I used the same procedures described in note 41. Because the search results included many cases against individual officeholders, I counted only cases brought against corporations, and did not include cases in which “quo warranto” appeared in passing.

  62. State v. Aetna Life Insurance Co., 69 Ohio St. 317 (1904). Also see Ohio v. Interstate Savings Investment Co., 64 Ohio St. 283 (1901); State v. Fidelity & Casualty Insurance Co., 39 Minn. 538 (1888); State v. Manufacturer's Mutual Fire Insurance Co., 91 Mo. 311 (1886); State v. Vigilant Insurance Co. of Nimrod, 30 Kan. 585 (1883).

  63. See, for example, State v. Missouri Athletic Club, 261 Mo. 576 (1914).

  64. Commonwealth v. Potter County Water Co., 212 Pa. 463 (1905).

  65. Attorney General v. Detroit & Saline Plank Road Co., 97 Mich. 589 (1893); People v. Lake Superior Ship Canal, Railroad & Iron Co., 32 Mich. 233 (1875).

  66. State v. Twin Village Water Co., 98 Me. 214 (1903); State v. Washington Steam Fire Co., No. 3, 76 Miss. 449 (1898); People v. Plymouth Plank Road Co., 31 Mich. 178 (1875).

  67. State v. Boatsmen's Savings Inst., 48 Mo. 189 (1871); State v. Toledo Home Telephone Co., 72 Ohio St. 60 (1905).

  68. State v. Park & Nelson Lumber Co., 58 Minn. 330 (1894); State v. Nebraska Home Co., 66 Neb. 349 (1902).

  69. Attorney General v. Erie & Kalamazoo Railroad Co., 55 Mich. 15 (1884); State v. Duluth Street Railway Co., 128 Minn. 314 (1915); State v. Sioux City & Northern Railroad Co., 43 Minn. 17 (1890); State v. Chicago, Burlington & Quincy Railroad Co., 25 Neb. 156 (1888).

  70. The four regions in Table 1 are those defined by the U.S. Census Bureau. Ohio conducted 62 quo warranto cases against businesses, followed by Missouri (59) and Illinois (41).

  71. This includes the Granger Laws enacted in several Midwest states and the laws later upheld by the Supreme Court in Munn v. Illinois, 94 U.S. 113 (1877).

  72. See Ron Chernow, Titan: The Life of John D. Rockefeller, Sr. (New York: Random House, 1998).

  73. S.C.T. Dodd, “The Present Legal Status of the Trusts,” Harvard Law Review 7 (1893): 157–58.

  74. See, for example, “Chicago's Gas Trust,” New York Times, February 4, 1888, 2.

  75. William L. Letwin notes that “between 1888 and 1890, there were few who doubted that the public hated the trusts fervently.” Letwin, “Congress and the Sherman Antitrust Law,” University of Chicago Law Review 23 (1956): 222.

  76. People v. Chicago Gas Trust Co., 130 Ill. 268, 283–87 (1889).

  77. State v. Nebraska Distilling Co., 29 Neb. 700 (1890).

  78. People v. North River Sugar Refining Co., 121 N.Y. 582 (N.Y. 1890).

  79. People v. Chicago Gas Trust Co., 302.

  80. Walter Chadwick Noyes, A Treatise on the Law of Intercorporate Relations, 2nd ed. (Boston: Little, Brown, and Company, 1907), §448. State courts found this to be the case as well. For an example, see State v. Boeckler Lumber Co., 206. For an overview of state antitrust laws and the remedies allowed under these statutes, which was written shortly after these laws were enacted, see Arthur Jerome Eddy, The Law of Combinations, Vol. 2 (Chicago: Callaghan and Co., 1901), especially Part VIII.

  81. Bruce Bringhurst, Antitrust and the Oil Monopoly (Westport, CT: Greenwood Press, 1979), 43.

  82. Will Wilson, “The State Antitrust Laws,” American Bar Association Journal 47 (1961): 160, 161.

  83. Cong. Rec., 51st Cong., 1st sess., 1890, 21, pt. 3: 2460.

  84. Ibid., 2456–59.

  85. Cong. Rec., 50th Cong., 2nd sess., 1889, 20, pt. 2: 1167.

  86. In response to the path-breaking Cotton Seed Oil Trust case in Louisiana, the trust simply transferred its assets to Rhode Island. “Trusts in the Courts,” New York Times, January 8, 1890, 4.

  87. McCurdy, “The Knight Sugar Decision,” 322–23.

  88. Cong. Rec., 51st Cong., 1st sess., 1890, 21, pt. 3: 2456, 2460.

  89. Ibid., 2457.

  90. Bringhurst, Oil Monopoly, 3.

  91. For examples of this criticism, see “The Government and the Anti-Trust Law,” New York Times, June 16, 1892, 4, which argues that the DOJ's Sherman Act litigation has been “farcical from the beginning” and “Sherman for the Trusts,” New York Times, October 13, 1892, which argues that the federal government's antitrust actions included “sham indictments.”

  92. 156 U.S. 1 (1895).

  93. Ibid., 11.

  94. Jeremiah W. Jenks, “Review of Chicago Conference on Trusts: Speeches, Debates, Resolutions, by the Civic Federation of Chicago,” Political Science Quarterly 15 (1900): 349.

  95. Civic Federation of Chicago, Chicago Conference on Trusts (Chicago: The Lakeside Press, 1900), 109, 111, 115.

  96. Ibid., 567–68.

  97. Ibid., 291–92.

  98. Indiana Attorney General, Biennial Report for the Year November 1, 1900 to October 31, 1901 (Indianapolis, 1902), 25, as cited in McCurdy, “The Sugar Knight Decision,” 341.

  99. For examples, see “St. Louis Trust Companies,” New York Times, October 18, 1897; “Move Against Southern Road,” New York Times, February 5, 1901; “Northern Securities Suit in Minnesota,” New York Times, April 20, 1902; “Texas Wars on Business,” New York Times, August 20, 1903; Queen Insurance Co. v. State, 86 Tex. 250 (1893); State v. Standard Oil, 61 Neb. 28 (1900); State v. Buckeye Pipeline Co., 61 Ohio St. 520 (1900); Hammond Packing Co. v. State, 81 Ark. 519 (1907); State v. Standard Oil, 218 Mo. 349 (1909).

  100. 193 U.S. 197 (1904). The Minnesota Governor and SAG had initiated the suit, before the United States became involved in prosecuting the case. “Gov. Van Sant Takes Action,” New York Times, December 19, 1901.

  101. State Attorneys to Petition Congress,” New York Times, October 2, 1907; “Would Curb Power of Federal Courts,” New York Times, October 1, 1907.

  102. These coordinated efforts included those of Tennessee and Missouri. See Bringhurst, Oil Monopoly, chapter 4.

  103. For example, in Richardson v. Buhl, 77 Mich. 632 (1889), a private business owner sued a principal of the Diamond Match Company (the “Match Trust”).

  104. Horace Gay Wood, A Practical Treatise on the Law of Nuisances in Their Various Forms, 3rd. ed. (San Francisco: Bancroft-Whitney Co., 1893), 853.

  105. State v. Minnesota Thresher Manufacturing Co., 40 Minn. 213, 214 (1889). For other examples, see Rice v. National Bank of the Commonwealth, 126 Mass. 300 (1879); Hunt v. Legrand Roller Skating Rink Co., 143 Ill. 118, 121 (1892); State v. Union Investment Co., 7 S.D. 51 (1895); Union Trust Co. of New York v. Atchinson, Topeka & Santa Fe Railroad Co., 8 N.M. 327 (1895); State v. Milwaukee Independent Telephone Co., 133 Wis. 588 (1907).

  106. Queen Insurance Co. v. State, 22 S.W. 1048, 1052 (Tex. Civ. App. 1893) (overruled on other grounds by Queen Insurance Co. v. State, 24 S.W. 397 (Tex. 1893)).

  107. For a useful summary of SAG offices, see Lewis W. Morse, “Historical Outline and Bibliography of Attorneys General Reports and Opinions,” Law Library Journal 30 (April 1937): 39–247. See also Myers and Ross, State Attorneys General: Powers and Responsibilities, esp. chapters 1–2.

  108. McCurdy, “The Knight Sugar Decision,” 321.

  109. “Has No Law Been Broken?” New York Times, February 22, 1888, 4; “Editorial,” New York Times, February 1, 1888, 4. Also see “The Sugar Trust to Be Sued,” New York Times, July 2, 1888, 4.

  110. “Making a Legal Test,” The Washington Post, January 27, 1888, 1; “The St. Louis Gas Trust,” New York Times, February 4, 1888, 4; “War On The Oil Monopoly: An Application Made to the Attorney General,” New York Times, March 18, 1891; “Can Force Elevated Road Reforms: Lawyers Say the Attorney General Has Full Power,” New York Times, February 14, 1903, 2.

  111. “Chicago's Gas Trust,” New York Times, February 4, 1888, 2; “How to Reach the Trusts,” New York Times, February 6, 1888, 4.

  112. “Misused Charters,” New York Times, January 14, 1890, 4.

  113. “Competition and the Law,” New York Times, February 28, 1888, 4.

  114. Edward M. Thornton, A Treatise on Attorneys at Law (Northport, NY: Edward Thompson Co., 1914), §740.

  115. Christensen, “The State Attorney General,” 311.

  116. Bringhurst, Oil Monopoly, 87.

  117. Eugene Lewis, Public Entrepreneurship: Toward a Theory of Bureaucratic Political Power (Bloomington, IN: Indiana University Press, 1980), 17–18.

  118. Ida M. Tarbell, History of the Standard Oil Company, Vol. 2 (New York: McClure, Phillips, and Company, 1904), 143; Bringhurst, Oil Monopoly, 14.

  119. Bringhurst, Oil Monopoly, 12–14.

  120. Prominent Republican politician Mark Hanna, for example, suggested to Watson that he was making a major political mistake by prosecuting Standard Oil; Bringhurst, Oil Monopoly, 14–15.

  121. See, for example, “Leave to Sue Granted,” New York Times, October 9, 1888, which reports that the New York SAG accused the Sugar Trust of “abuse of its powers”; and “Colorado Sues to End Smelter Trust,” New York Times, July 1, 1902, which reports that the Colorado SAG accused the Smelter Trust of “violating the laws.”

  122. William Letwin, Law and Economic Policy in America (New York: Random House, 1965), 82–83, fn. 8.

  123. “Colorado Sues to End Smelter Trust.”

  124. State v. Standard Oil Co., 30 N.E. 279 (Ohio 1892). This is not to say that SAGs always succeeded in de-linking “legal duty” from “mere politics.” During the late 1890s, Standard Oil politically organized against SAGs, as Watson's (also “activist”) successor in Ohio discovered with the corporation's successful campaign to deny his Republican Party renomination in 1899. Bringhurst, Oil Monopoly, 34.

  125. My Lexis-Nexis searches suggest that public nuisance litigation declined after the New Deal. This is consistent with other scholars’ findings. For example, Donald Gifford notes that public nuisance cases dwindled after the Progressive Era. See Gifford, “Mass Products Liability Tort,” 805–6.

  126. Martha Derthick, Up in Smoke: From Legislation to Litigation in Tobacco Politics (Washington, DC: CQ Press, 2005).

  127. See Complaint, Moore ex rel. State v. American Tobacco Co., et al., No. 94–1429 (Miss. Ch. Ct. Jackson County, filed May 23, 1994), Count III. This was the first state lawsuit filed against the tobacco industry. Eventually, the tobacco litigation involved all SAGs, many of whom also incorporated public nuisance claims into their complaints. Gifford, “Mass Products Liability Tort,” 759–60.

  128. Connecticut v. American Electric Power, No. 04-CV-05669 (S.D.N.Y. 2005). The Supreme Court recently rejected SAGs’ attempt to use federal common law to address climate change, but left open the ability to bring such lawsuits based upon state public nuisance theories. American Electric Power v. Connecticut, 564 U.S.___ (2011).

  129. See W. Kip Viscusi, Regulation through Litigation (Washington, DC: American Enterprise Institute, 2002).

  130. See Myers and Ross, State Attorneys General: Powers and Responsibilities (2007).

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    Paul Nolette

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An earlier version of this article was presented at the 2009 meeting of the New England Political Science Association. I would like to thank Ken Kersch for his advice and encouragement during the early stages of this research. Much gratitude is also due to Cyrus Ernesto Zirakzadeh and the anonymous reviewers at Polity for their constructive comments and criticisms.

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Nolette, P. Litigating the “Public Interest” in the Gilded Age: Common Law Business Regulation by Nineteenth-Century State Attorneys General. Polity 44, 373–399 (2012). https://doi.org/10.1057/pol.2012.8

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