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WACO DAI)
tutiooal objootion but the sood foil
upon stony places. The linn. Thomas
J. Brown, a distinguished mombor of
the louse, from Oraysi n county, who
had dovotcd yoais of study to the
question, and a fur duo incubation,
had mtturod a bill designcl to c irroct
the ovils in railway mauagoinont, in
troduced his bill only to liavo it
slaughtered in committee, although he
was the recognized loader nf tbe coin
mission idea upou tho tloor. This
Brown bill, when compared to the
present bill, wts soothing syrup to
aquafortis. Senator Johnson, ot Smith
county, who, himself, had given no
little thought to this question iu more
than ono session ot tho Legislature,
refused to accept tho Ilrowu bill us a
solution because it was not extreme
onough, and thereupon, in joint com
mittee, he form aimed another hill
which had already been iutroduood
into the Senato by him, and dominated
the committee sufficiently to have his
bill substituted for thn Brown bill
Thii Johnson bill was extreme enough
in all consaience, but it gave to the
railroads a limited right of appeal to
the courts of jus'ico for protection,
aid this was sufficient to damn the
bill in tho cyos of His Exocllenoy.
The Johnson bill was retired, and the
present bill formul&ted in tho execu
tive office and precipitated upon both
Houses of tbe Legislature with tho
understanding that it was the Gov
ernor s ultimatum. So, if there be
defects in this bill; if there be viola
tions of the constitution; if thcro be
undue harshness and unatatosmanlike
severity in tho measure; if it is not
adapted to the wishes of tho people of
lexas, the Govornor is solely respon
sible, and cannot escape tho responsi
bility. Let us examine somo of its
provisions and see how they comport
with statesmanship.
Section G reads as follows:
"Seo 0 If any railroad company or
othor party at interest bo dissatisfied
with the decision of any rate, classifi
cation, rule, obarge, order, act, or reg
ulation aaopted by tho Commiasion;
such dissatisfied oompauy or party may
file a petition setting forth the partlo
ular cause or causes of objection to
snob decision, aot, rato, rule, ohargo,
classification, or order, or to either or
all of thorn, in a court of competent
jurisdiction in Travis county, Texas,
against said Commission as dofondant.
Said action shall have precedence ovor
all other causes on tho docket of a dif
ferent nature, and shall bo tried and
determined as other civil causes in
said court. Either party to said uo
tion m iy appeal to tho appellato court
having jurisdiction of said cause, and
fiaid appeal shall bo at onca returnable
to said appellate court, at either of its
terms, and said action so appoaled
shall havo precedence in said appellate
oourt of all caases of a different char
acter therein pending: Provided, that
if the oourt bo in session at tho time
suoh right of action acoruos, the euit
may bo filed during such torm and
stand ready for trial after ton davs
notice "
This provision standing alono would
clearly give a railroad dissatisfied with
any ruling or order of tho commission,
a right to lipped to some oourt in
Travis cou-ty for protection, though
what oourt would havo jurisdiction is
left in an indefinite ' oondition. But
tbit provision is delusivo, and de
signedly so. In other words, it is a
fraud, a travesty upon justice, becauso
when taken and considered with other
provisions of tho law this right of ap
peal is inoapablo of oxeroiso excopt
upon the contingency of practical con
fiscation. Looking to sootion 5, the
station immediately preceding this, it
will be found that in case of suits be
tween private partios and any railroad
company, brought under the law, tho
rates, charges, orders, rules, regula
tions and classifications prescribed by
tho ouuiwlsoion beforo the institution
of such aotion aro to bo held oonolu
sivo and deemed and acoepted to bo
reasonable, fair and just, and in such
respects shall not be controverted
therein until finally found otherwise
in a direot notion brought for that
purpos" n specified in seotion 0. In
other words, and to stato tho case
inoro plainly, upon the establishment
of a rato by tho commission or tho
promulgation of any order, in oaso
litigation arises between tbe railroads
and any privato person, the railroads
aro not permitted to controvert the
justness of suob order or rate, but tho
order or rato made by tho commission
is conclusive upon the court trying tho
oaso. It is as muolr as saying to the
railroads: If you disobey our orders
with roforenoe to rates, and s: privato
person sues you for suoh disobedionoo
you oan oomo into court on summons
of tho private person, but you must
stand muzzled. You oan say neithor
yea, nor uay, but like a sheep before
its shearers, you must not open your
mouth. You shall not question tho
stnso or justice of the order of tho
commission, but that order shall bo
ojucIusivo upon you in the suit, and
tho oourt shall deoido against you a
soon as tho fact is ascertained that
you havo disobeyed tho order, whethor
tho court is of tho opinion that it is
reasonable and just or the rcvorso.
Turning to seotion 1 1 wc find the
obvious purposo of section 5. This
seotion provides that if any railroad
company subject to this aot, or its
agent or officer, shall hereafter charge,
co'leot, demand or re ciyo from any
porsnu, company, firm or corporation,
a creator rate, charge or oomponsation
than that fixed and established by the
railroad commission for the transportu
tion of freight, passengors or cars,
etc., such railroad company shall bo
deemed guilty of extortion, and shall
forfeit and pay to the State a penalty
of not less than ono hundred nor more
than five thousand dollars. Seotion
17 provides that any railroad which
shall do, cause to bo dono or permit to
be done, any matter, aot or thing, in
this aot prohibited or doclarod to bo
unlawful, or shall omit to do any act,
matter or thing herein required to be
done by it, shall bo liable to tho per
sons injured thoreby for tho damage
sustained in oonscquonoo of the viola
tion, and in case tho railroad company
should bo guilty of extortion or dis
crimination as definod, then in addi
tion to such damages tho railroad
company shall pay to tho person in
jured tberoby a penalty of not less
than $125 nor moro than $500, to bo
recovered in any oourt of competent
jurisdiction in any county into or
through whioh suoh railroad may run.
And tho only dofense permitted by
this seotion to tho railroad is that it
may proyo that tho overchargo was
unintentionally and innocently' made
through a mistako of fact.
So in cases of oxtortion or discrimi
nation, as defined by tho aot, a privato
oitizon may sue, not only for the
penalties, and when suit is brought
tho rato fixed by the commission is
couolusivo, and there is no defense to
tho penalty except tho defense of
mistako. And in addition to the
penalty granted to the individual, tho
State also oan reoover a penalty for
each aot of not less than $100 nor
moro than $5000, and those penalties
aro cumulative. The oppression of
tho law may bo oxplained thus, so as
to be plain to the oommon understand
ing Tho commission may fix its rate.
This rato may bo so low as to amount
to a praotioal confiscation if adhered
to by tho oompany. If the railroad
obeys tho ordor of tho commission it
moans a destruction of the property
under tho law; if it refuses to obey
and thoreby an actioi inures to a pri
vato individual, it may go into court,
but can mako no defense, and penal
ties may be multiplied in this way ad
infinitum, bcoause each violation sub
jects tho road to tho penalty at the
instance of any shipper. If tho road,
in its vain searoh for a remedy, should
appeal to the courts for protection, the
rate presonbed must bo observed, ro
gardless of its damage or iujury or un
reasonableness; or failing toobscrvo it,
tho road must litigate with the oom
mission and subjeot itself in oase of
failuro, to tho recovery ot a penalty to
be recovered by tho State tor each act
of violation during the progress of the
litigation of not less than ono nor
more than tlvo thousand dollars, which
means, in plain English, that if tho
road appeals to tho court and d'sobeys
tho order of the commission on account
of its unreasonableness, and fails in
its litigation tho penalties will accu
mulate so rapidly and so overwhelm
ingly as to confiscate the proporty in
behalf of tho State in oaso of such
failure.
This may bo illustrated further by
tho examplo of a public mill or gin
among tho farmors. Assuming that
tho usual ohargo for ginning is one
tenth, and that public gins are public
institutions which tho State is empow
ered to regulate for tho protootiou of
the people through a commission, or
in any othor way, and tho State sees fit
to presoribo that one tenth for ginning
is excossivc and extortionate and un
just to tho people -and that cotton
ought to bo ginnod for ono-twentieth.
Tho ownor of tho gin protests that he
oannot live and keophis maohinery in
operation for ono-twentieth. The com
mission is hoedless and insists upon
his obsorvanoo of the rules under ihe
order; tolls tho ginner if ho is not sat
isfied he oan go to Austin and sue tho
oommission and lot tho courts deter
mine whethor the rates prescribed by
tho commission are reasonable or oth
erwise. The ginnor knows that he
will not be ablo to livo and do business
for ono-twontieth; he knows that his
maohinery is wearing out year by year
and will noed replacement from time
to time, and when these repairs and
betterments aro made thero will bo
nothing loft to pay interest on his in
vestment or one dollar for his labor.
He rofusos to oboy the ordor of tho
oommission on tho ground that its or
der amounts to confiscation, and per
sists in charging onu-tonth instead of
ojo-tuontictn prescribed by tho com
mission. Ono of his oustomors auos
liiui for extortion. Ho attempts to
juitify his charge, but is mot with tho
law which says that the ordor of tho
commission is couolusivo and tho
court must so hold. Ho appeals to
the oourt at Austin against tho oom
mission and iu the ineanwhilo persists
in charging tho ono tenth because he
is not able to operate his gin for a
smaller sum. Aftor tedious delays,
during the progress of whioh, eaoh
day, ho is subjcoting himself to addi
tional poualtics, and these penaltios
nro accumulating mountain high upon
him, his oase comes to trial and tho
court determines and adjudges that ho
is mistaken, and that ono-twontieth is
u reasonable rato for ginning his
neighbor's cotton. What position is
he left in? Tho penalties will moro
than oat up his plant, and ho finds
himself stripped and robbed of his
proporty simply because he wanted to
exorcise tho right of cvory freo man
and one guaranteed to him by the
constitution of his State, tho right to
appeal to tho courts for tho protection
of his proporty by duo process of law.
Or take tho other view of it. Supposo
ho oboys tho order of tho commission
and ohanges his price from one tenth
to ouo-twontieth and thereupon ap
peals to tho courts to determine
whothcr tho one-tenth was uuroasona
blo or not, and after tedious delays a
judgment is finally roachod in the Su
premo Court dotermmj; that he is neht
ana that one-tenth is a reasonable
price. But, in tho meanwhile he has
been operating for ono-twontieth un
der tho ordor of tho oommission.
What becomes of him in that avent?
Ho has been operating his property at
a ruinous price, to tho detriment and
sacrifice of his material interests, and
when vindicated at last by tho highest
court in his Stato, the damage is dono
and thoro is no means of rbparatiou.
for the Stato does not promise to pay
him in case the commission has de
cided wrong.
Thus you seo, fellow-citizens, the
situation with reference to this vaBt
interest built up in our midst upon
our invitation, and upon a guarantee
of the samo protection that our own
people should rocoive under tho law;
an interest whioh in building itself up
has built us up also, adding hundreds
of millions to our taxable values and
inostimablo acquisitions to our private
property, advanoiug values, bringing
civilization and prosperity in its train
and enabling u3 to enjoy at our homes
tho oomforts derived from tho markets
of the whole world, is denied the priv
ilege accorded the humblest citizen of
the State, for ho can appeal to tbo
oourts organized for his protection
without let or hindrance, without de
lays, without embarrassmont, without
pains, without penalties. But this
great lntorest, which is not ontitlod to
any moro consideration than that ao
cornea tno humblest citizon, is, at
least, entitled to the samo considera
tion. This bill was ingoniously framod
to cut railroads off from their consti
tutional right. It was designed to
intimidate them from appealing to tho
courts for protection. Its purposo was
to arbitrarily force them to obey the
orders of the oommission without ap
peal. If this bo that due process of law
guaranteed to us bv tho constitution
for the protection of property, wo had
best amond the constitution and mako
it more stringent, for this is a saorod
right. Away back in tho thirteenth
century our English ancestors took
arbitrary power by tho throat whioh
had been selling and donying justice,
and wrung from royal authority this
declaration: "Wo will soil to no man;
wo will not deny or defer to any man
either justico or right." And our peo
ple, in framing tho organio law of this
Stato for our government studiously
observed this prooopt of human lib
erty whioh has been handed d)wn to
us for many generations, and deolarcd
"That no citizen of this State shall be
deprived of life, liberty, proporty,
privileges or immunities, or in any
manner disfranchised oxcept by the
due course of tho law of tho land."
Shall this constitutional mandate, fel-low-oitizons,
be observed in our legis
lation, or shall it bo disregarded? If
wo tramplo it under foot with rofer
onco to one-third of the taxablo prop
erty of tho State, how soon may it be
beforo wo aro again called upon to
tramplo it under foot with roforonoo to
other rights equally as Baored and
whioh ought to be equally as socure?
Oan wo afford, oven in moments of
passion, to ignore tho great principle
whioh has proservod our liberties so
far and has stood as a bulwark in our
defense, giving to us when we labor
tho blessed assurance that we shall
enjoy tho fruits of that labor without
foar of molestation upon tho put
cither of government or of individuals
and that by tbe oxorolso of frugality
and eoononiy and judgment in our
businoBs affairs wo may be cuablod in
tho vigor of our manhood to accumu
late a sufficiency for our support whon
old ago comes upon us? Shall wo sur
render this glorious right and privilego
merely for tho sake of controlling rail
way corporations which aro perfectly
oontrolablo without any suoh sacrifice?
Aro wo afraid to trust our own oourts
with tho decision of questions affect
ing our railways, which aro our hoavi
est tax payors? When our constitu
tion says that all persons Bhall havo
tho right to appoal to the oourts for
protection of person and property, it
means something substantial, It does
not mean that this right shall bo
granted as a spooial favor, or limited
by any conditions. It in nn absolute
right, to bo exercised by the citizen at
pleasuro, and freo from punishment if
it dovclops that ho is mistakon in
judgmont. Frequently wo appeal to
our courts, bolioving that the law and
the facts are on our side, and that wo
aro entitled to tho rolief demandod,
only to find that thcro aro two sides to
every oaso, and tho court cannot be
impressed with our views. And yot
there are no punisbmontB lurking near
to devour us because wo aro provod to
havo been mistaken. How would a
oitizon teel if ho know that ho oould
secure justico in tho courts only by
running tho gauntlet of destruction in
caso ho failed? not dostruotion meroly
at tho hands of his adversary, but at
tho hands of his State, whose duty it
was to protoot him? This is the bur
den we havo oast upon railway owners,
and how does it compo t with that
guarantee of the Fodoral constitution
whuh forbids a State from donying to
any oitizen tho equal protection of tho
law? Any porson can sue a railroad
without dangor if ho fails; but. under
this law, a railroad oannot vonturo to
sue tho State, no matter how gross
tho oppression or unreasonable the ox-
action, bcoause it it tails it moans
death to itself. And when sued by a
citizon, it is not allowed to defend.
oan wo wonacr tnon tnat capital is
intimidated and oonfidonoo destroyed?
Can wo marvol that the outside world
refuses to trust us any more, and in
answer to our assurances point with
derision to theso laws aa a true index
of our intentions? 1 ask you to pon
der upon this and to givo your vtrdiot
at tho polls, and let that verdict bo
what it ought to be, coming from men
who love justice and respect tho guar
antees of tho constitution.
Fellow-citizens, there is another
featuro of this commission law which
is calculated to striko a Democrat with
alarm. It is a fundamental dootrino
. t , i
wua us as a party, that all power is
inherent in the poople, and that tho
perpetuity of our institutions depends
altogether upon their virtuo and intel
ligence. If tho people are inoapablo
of administorinc their own affairs of
govornmont in an intelligent and con
servative way, thon thoro must be a
speedy ond for popular govornmont.
Tho idea of tho Democratic fathers
was, among others, that power in any
shapo, except when abiding with tho
people, should be watched with jealous
vigilance. Tho tendency of all gov
ernment, whethor republican or mon
archical, is to grasp at favorable inter
vals fresh accretions of powor and
authority. There is and has been al
ways constant war for powor botweon
government ana people Theso op
posing forces, whioh may bo styled
the oentripetal and coutrifugal forces
in government by reason of their op
posite tendencies, serve to maintain a
propor equilibrium between peoplo
and government. If tho peoplo bo
come careless and allow govornmont
to arrogate to itself constantly all im
portant powers, they aro liablo to wake
up and find themselves slaves, for a
strong government moans a weak poo
people, and a weak govornmont in a
ropublio nearly always signifies strong
individuality on tho part'of the oitizen.
This thing ot adding to executive pa
tronago has already become distastoful
to tho American mind. Tho President
of the Unitod Statos to-day wields
moro arbitrary power and doals more
largely in publia patronago than tho
sovoreign of the British Empire. This
samo idea of oxooutivo patronage per
moated our constitution antecedent to
tho ono undor whioh wo are now liv
ing, and the Governor was invqsted
with suoh powor and Buch influence as
enabled him at his pleasure toprecipi
tote upon tho pooplo an oligarohy in
stoad of a republio. In 1875, how
ever, tho poople of TexaB determined
to change thoir organio law, and their
representatives in convention boing
duly advised by their constituents,
proceeded to framo a constitution
more in accordance with Domocratio
principles. Whorevor practioablo, tho
Govornor was strippod of power and
suoh powor was rotiirnod to tho peo.
pic; and this constitutes ono of tho
chief exocllonoics of tho instrument.
It was hardly to bo supposod that in
any important addition to the offioo
holding machinery of our govornmont
a Domoorutio administration would tm
found to nntagonizo this principle e
thoroughly assorted by iho fratnors of
our present constitution aud so dear to
the hearts of tho pooplo Tho disous
sion as to a oommission, mado beforo
tho roopln two years ago, did not in
volvo any debate as to how tho com
missioners should bo seh'otod. It was
assumed that undor Domocratio insti
tutions thoro oould bo no question but
that the pooplo themselves should so
leot those to whom thoy proposod to
entrust tho administration of suoh im
portant functions. And yot, whon tho
Legislature mot and proooodod to camr
out the will of the poople in framing a
law whioh should protoot them from
railroad injustioo and at tho samo time
protect tho railroads from iujustioo at
their hands, which was tho popular
dosiro, it wus ascertained that tho ex
ecutive, whom the peoplo thomsolves
had selected, had detorminod in his
own mind that he should bo vested
with tho power of naming those com
missioners and of substantially direct
ing their aotion, for suoh is tho oondi
tion of tho law today. It was urged
upon tho floor of tho two Houses by
Democrats of unquestioned prinoiple
anu 01 inorougn aovotion to iomo
oratic teachings that it was peculiarly
appropriate and fit that theso commia
Bionors, vested as thoy woro nooessa.
rily under tho terms of tho bill with
almost arbitrary and abaoluto powor
over great investments, should reoeive
their commission from tho peoplo
themselves and bo responsible only to
tho peoplo for the dischargo of what
ought to have been a saored trust.
But their arguments woro mot with
tho ipso dixit of thoso who stood near
tho Govornor that ho would not toler
ate this Domooratio method of govern
ment, and that if a bill was passod
giving to the people thoir inalienable
right to select thoir own agents for
the administration of thoir government,
His Excellency would veto the bill.
This had its effect, of ooursc, and after
a strugglo for tho supremacy of Demo
cratic principles, tho advocates of
thoso principles yielded their judg
ment and surrendered to tho execu
tive a right which bolonged to the
people. Tho siguificanoe of tho move
ment was not detected by tbo masses.
It was not scon by thorn that this was
a long step iu tho direction of abso
lutism in our State. Thoy did not
know nor realize that this meant tho
Governor should bo suprome in the
administration of tho oommission law,
and that his word or his nod should
prevail thereafter in tho operation of
this board. I do not charge that tho
Govornor has interfered with tho ad
ministration of tho law by tho com
mission. Possibly ho has not, and for
tho sako of argument I am willing to
admit that ho has not uttered ono
word or promulga'ed ono suggestion
to the commissioners since he ap
proved tho bill. But that is not the
question. Tho question is one of
power in the executive, of violation of
Democratic prinoiplos, of invosting ono
man by law with autocraoy, which is
inconsistent in any shapo with genu
ine republican liberty. Tho motive
was artfully concealed in this, as it
was concealed in tho attempt to do
privo tho railroads of thoir power to go
to the courts for rolief. There was no
mention mado in tho law that tho
Governor should have powor to reraovo
tho commissioners, and it was oven
urged that this power, not having
been granted to tbo Govornor, was in
capable of exero'so by him. Thi
specious plea could not impose upon
any one familiar with tho laws of this
State, for, turning to the Revised
Statutes, thoro stands a law whioh au
thorizes the Governor to remove any
appointive officer in tho administration
at his own will. I rofer to Artiolo
3387 of the Revised Statutes. And
so, when tho work was dono and fin
ished, we found this great investmont
in the State manaoled so as to prevent
them from going to tho oourts and
praying as an humblo suppliant for
justice, and tho administration of its
affairs placed entirely in tho hands of
throo men who were seleotcd undor
tho law booause they had no interest
whatever in tho investment and liable
to romoval at any time at tho will of
tho Govornor who appointod them,
without ohook or hindrance. If this
is not absolutism, what would you call
it, follow citizenB? If this is not a
stop in advanoo of anything undertaken
by Edmund J. Davis in his careor in
this Stato from 1870 to 1874, what
would yuu call it? If this stylo of
law-making is not absolutely inconsis
tent and incompatible with liberty and
a
