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Constituting Corporations and Markets: Railroads in Gilded Age Politics

Published online by Cambridge University Press:  16 December 2008

Gerald Berk
Gerald Berk
Affiliation:
University of Notre Dame
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Extract

In 1884, a committee of dissenting bondholders for the Wabash, St. Louis and Pacific Railway entered a federal district court in Illinois to complain that St. Louis Federal Judge David Brewer had, at the request of the notorious robber baron, Jay Gould, thrown the road into receivership prior to default. Judge Walter Gresham (whom the Populists would try to recruit for their 1892 presidential candidate) listened sympathetically and put the eastern division of the road into a separate receivership. For the time being, a key link, in Gould's national system was broken in two. Soon, however, the courts and bondholders capitulated, and Gould succeeded, at the expense of the sanctity of property and contract, in revolutionizing the corporate doctrine of receiverships to assimilate huge national systems.

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Articles
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Studies in American Political Development , Volume 4 , Spring 1990 , pp. 130 - 168
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Copyright © Cambridge University Press 1990

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References

Among the many people whose advice and criticism has been central to the development of this project, I especially thank Peri Arnold, Walter Dean Burnham, Joshua Cohen, Donald Critchlow, Victoria Hattam Morton Horwitz, James Livingston, Charles Sabel, Phillip Scranton, and the editors of this journal.

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19. For citations to histories of alternative financial and banking policies, see n. 22.

20. There is an enormous literature on national monetary policy during this period, but for good summaries, see Myers, Margaret G., A Financial History of the United States (New York: Columbia University Press, 1970), 149–63Google Scholar; Sharkey, Robert P., Money, Class and Party: An Economic Study of Civil War and Reconstruction (Baltimore: Johns Hopkins Press, 1959), 15–55Google Scholar; Keller, Affairs of State, 191–95. On railroad securities held abroad and the predominance of debt in railroad finance, see Myers, Margaret G., The New York Money Market (New York: Columbia University Press, 1931), 290–91Google Scholar; Sakolski, A. M., American Railroad Economics (New York: Macmillan, 1913)Google Scholar; Willis, H. Parker and Bogen, Julius I., Investment Banking (New York: Harper & Brothers, 1929), 176–78Google Scholar; and Adler, Dorothy R., British Investment in American Railways, 1834–1898 (Charlottesville: University Press of Virginia, 1970), 166–68Google Scholar.

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27. Chandler and Tedlow, The Coming of Managerial Capitalism, 227–56; Chandler, The Visible Hand, 145–87.

28. On the theory of receivership procedure, see Berle, Adolph A. Jr, “Receivership,” Encyclopedia of the Social Sciences (New York, 1933), 149–53Google Scholar; Swain, Henry H., “Economic Aspects of Railroad Receiverships,” Economic Studies of the American Economic Association 3 (1889): 1–53Google Scholar; Dewing, Arthur Stone, “The Procedure of Contemporary Railroad Reorganization,” American Economic Review, 9 (07 1919): 277–310Google Scholar; Albro Martin, “Railroads and the Equity Receivership”; Meade, Edward Sherwood, “The Reorganization of Railroads,” Annals of the American Academy of Political and Social Science 17 (03 1901): 205–07Google Scholar. And, on the trust fund theory of the corporation more generally, see Horwitz, “Santa Clara Revisited,” 175.

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30. On the shift in corporation law, more generally, from the trust-fund theory to a “natural entity” or “corporate personality” theory, see Horwitz, “Santa Clara Revisited.”

31. Unless otherwise cited, this story of the Wabash Railway comes from Grodinsky, Julius, Jay Gould, His Business Career (Philadelphia: University of Pennsylvania Press, 1957)Google Scholar.

32. 29 Fed. Rep. 618, at 623 (1886).

33. See Exhibit C, “Report of the Purchasing Committee to Holders of the Bonds for the Wabash, St. Louis & Pacific Ry, East of the Mississippi, etc.,” and Exhibit, D, “Report of the Committee of Bondholders of the Wabash, St. Louis & Pacific Ry Co. (8/12/1886),” in Wabash Railroad Company Annual Report (1891)Google Scholar, appendixes.

34. See, for example, Josephson, Mathew, The Robber Barons (San Diego: Harcourt Brace Jovanovich, 1962), 192–215Google Scholar; and Charles Francis Adams, Jr. and Henry Adams, Chapters of Erie (1886; reprint, Ithaca, N.Y.: Cornell University Press, 1968).

35. Alfred D. Chandler, Jr., “Jay Gould and the Coming of Railroad Consolidation,” in Chandler and Tedlow, The Coming of Managerial Capitalism, 227–56.

36. On the role of the corporate bar in receivership practice, see Robert W. Gordon, “ Legal Thought and Legal Practice.” On the role of the corporate bar more generally in shaping the profession during this period, see Auerbach, Jerold, Unequal Justice (New York: Oxford University Press, 1978), 14–73Google Scholar. And, on the more general turn to a natural entity or an administrative theory of the corporation, see Horwitz, “Santa Clara Revisited.”

37. Dewing, “The Theory of Railroad Receivership,” 784–88; Chamberlain, D. H., “New Fashioned Receiverships,” Harvard Law Review 10 (10 1896): 139–49CrossRefGoogle Scholar; Martin, “Rail roads and Equity Receiverships,” Berle, “Receivership,” 50; Berk, “Corporations and Politics,” 144–56.

38. For a complete yearly accounting of the percentage of total railroad mileage in receivership from 1870 to 1897, see Swain, “Economic Aspects of Railroad Receiverships,” 68. See also Daggett, Railroad Reorganizations; Campbell, Edward G., The Reorganization of the American Railroad System 1893–1900 (New York: Columbia University Press, 1938)Google Scholar.

39. Greenberg, Dolores Breitman, Financiers and Railroads, 1869–1889, A Case Study of Morton, Bliss and Company (Newark: University of Delaware Press, 1980)Google Scholar; Carosso, Vincent P., Investment Banking in America: A History (Cambridge: Harvard University Press, 1970)Google Scholar; Fritz Redlich, The Molding of American Banking: Men and Ideas (1947; reprint, New York: Johnson Reprint Corporation, 1968), 304–423.

40. Carosso, Vincent P., The Morgans, Private International Bankers, 1854–1913 (Cambridge: Harvard University Press, 1987), 121–23, 146–59, 238–42, 245Google Scholar.

41. Carosso, The Morgans, 246.

42. Carosso, The Morgans, 246–67.

43. On the competitive system building that led to this tripartite receivership, see Klein, Maury, The Great Richmond Terminal (Charlottesville: University Press of Virginia, 1970)Google Scholar; and Stover, John, The Railroads of the South, 1865–1900 (Chapel Hill: University of North Carolina Press, 1955), 233–53. On the southern reorganization, see Daggett, Railroad Reorganization, 146–91; Campbell, Reorganization of the American Railroad System, 149–62; and Carosso, The Morgans, 369–73Google Scholar.

44. On the Morgan reorganizations more generally, see Carosso, The Morgans, 352–90; Campbell, Reorganization of the American Railroad System, 145–89. On the court's procedure to secure consent from shareholders, see Cravath, Paul D., “The Reorganization of Corporations; Bondholders' Protective Committees; Reorganization Committees; and the Voluntary Recapitalization of Corporations,” in Association of the Bar of the City of New York, Some Legal Phases of Corporate Financing, Reorganization and Regulation (New York: Macmillan, 1917)Google Scholar; Gordon, “Legal Thought and Legal Practice,” 101–05; and Berk, ”Corporations and Politics,” 158–68.

45. During the 1890s, fixed charges (or debt) were reduced dramatically through receivership on the following major systems: the Atchison, Topeka and the Santa Fe, 53%; the Erie, 20%; the Denver and Rio Grande, 21%; the New York, Chicago and St. Louis, 36%; the Norfolk and Western, 30%; the Reading, 7%; the Georgia Central, 27%; the Oregon Railway and Navigation, 30%; the St. Louis and San Francisco, 7%; the Southwestern, 15%; the Colorado and Southern, 35%; and the East Tennessee, 24%. For a full accounting of railroad capital structures before and after receivership, see Poor's Railroad Manual, 1900, lxxi-cvi. See also Daggett, Railroad Reorganization, 342–43.

46. Dewing, Arthur Stone, “The Purposes Achieved by Railroad Reorganization,” American Economic Review 10 (06 1919): 277–310Google Scholar; Daggett, Railroad Reorganization, 334–86.

47. For a view that stresses the importance of the friendly receivership for smaller “less efficient” railroads, as well as large multiline systems, see Martin, “Railroads and the Equity Receivership.”

48. On the repatriation of American capital, see Williams Bogan, Investment Banking, 179.

49. Though Gould has been portrayed as a relentlessly offensive strategist, a recent biography by Maury Klein suggests that it is impossible to distinguish between offensive and degensive system buliding. For example, Klein shows how Gould tried to negotiate, unsucessfly, territorial settlements with his competitor. For the former view, see Chandler, “Jay Gould and the Coming of Railroad Consolidation.” For the latter, see Klein, Maury, The Life and Legend of Jay Gould (Baltimore: Johns Hopkins Press, 1986)Google Scholar.

50. Bensen, Merchant, Farmers and Railroads; Purcell, “Ideas and Interests”; Martin, Enterprise Benied.

51. Buck, Solon, The Granger Movement (Lincoln: University of Nebraska Press, 1965)Google Scholar; Miller, George H., Railroads and the Granger Laws (Madison: The University of Wisconsin Press, 1965)Google Scholar.

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53. In addition to Stickney, The Railway Problem, 89–113, on this point, see Buck, The Granger Movement, 232–38. For examples of contemporaries who, unlike Stickney, took management's plea at face value, see Adams, Charles Francis, “The Granger Movement,” North American Review 120 (04 1875): 394–424Google Scholar; Hadley, Arthur T., Railroad Transportation: Its History and Its Laws (New York: G. P. Putnam's Sons, 1886)Google Scholar; and McCurdy, Charles W., “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-faire Constitutionalism, 1863–1897,” Journal of American History 61 (03 1975): 970–1003CrossRefGoogle Scholar.

54. In addition to Stickney, The Railway Problem, 98–113, on the railroad counterattack and the Granger cases, see Miller, Railroads and the Granger Laws, 172–93; Buck, The Granger Movement, 206–38; Overton, Richard C., Burlington Route: A History of the Burlington Lines (New York: Alfred A. Knopf, 1965), 113–14Google Scholar; Warren, Charles, The Supreme Court in United States History (Boston: Little, Brown, 1922)Google Scholar.

55. Haney, Lewis, A Congressional History of Railroads in the United States, 1850–1887 (New York: Augustus M. Kelly, 1968), 283–85Google Scholar; Proctor, Ben H., not Without Honor: The Life of John H. Reagan (Austin: University of Texas Press, 1962), 224Google Scholar; Buck, The Granger Movement, 214–16. On Senate support for the railroads, see Josephson, Mathew, The Politicos, 1865–1896 (1933; reprint, New York: Harcourt, Brace & World, 1966), 61–140Google Scholar.

56. On Standard Oil and the Hopkins bill, see Nash, Gerald D., “Origins of the Interstate Commerce Act of 1887,” Pennsylvania History 24 (07 1957): 181–90Google Scholar.

57. Congressional Record, 44th Cong., 1st sess. (1876), 113.

58. Speech by Sen. James Wilson (R. Iowa), Congressional Record, 44th Cong., 1st sess., Appendix, 279.

59. Proctor, Not Without Honor, 225–40; Haney, Congressional History of Railways, 288–90; Hoogenboom, Ari and Hoogenboom, Olive, A History of the ICC: From Panacea to Palliative (New York: W. W. Norton 1976), 8–13Google Scholar.

60. Who Was Who in America, 1607–1896 (Chicago: A. N. Marquis, 1963).

61. Congress, U. S., Interstate Commerce Debate in 48th Cong., 2d sess. on the Bill (H. R. 5461) to Establish a Board of Commissioners of Interstate Commerce, and to Regulate Such Commerce [etc.], (Washington, D.C., 1884), 30Google Scholar. This volume will be cited as ICC Debate, 48th. On the 1866 legislation, see also Haney, Congressional History of Railways, 2:214–30.

62. Keller, Affairs of State; Hays, The Response to Industrialism; Weibe, The Search for Order; SamuelHays, “Political Parties and the Community-Society Continuum,”in Chambers, William N. and Burnham, Walter Dean, The American Party Systems: Stages of Development, 2d ed. (London: Oxford University Press, 1979)Google Scholar.

63. Foner, Free Soil, 37.

64. ICC Debate, 48th, 97.

65. Ibid., 32.

66. Ibid., 209.

67. Stickney, The Railway Problem, 36–57.

68. ICC Debate, 48th, 31.

69. Ibid., 243.

70. Congress, Interstate Commerce Debate in 49th Cong. on the Bill to Establish a Board of Commissioners on Interstate Commerce, and to RegulateSuch Commerce [etc.], compiled by V. H. Painter (Washington, D.C., 1887), 27–28. This volume will be cited as ICC Debate, 49th.

71. ICC Debate, 49th, 453.

72. ICC Debate, 48th, 31.

73. Ibid., 37–38.

74. Ibid., 32.

75. Ibid., 103–05.

76. Ibid., 32.

77. Others in Congress expressed similar concerns. See, for example, ICC Debate, 49th, statements Senators Gorman (D. Md.), 108; Sherman (R. Ohio), 112; Longer (R. Mich.), 126; and Coke (D. Texas), 217; and ICC Debate, 48th, statements by Long (R. Mass.), 31; Congressman Anderson (R. Kans.), 53; Congressman Shively (D. Ind.), 72; and Senator Beck (D. Ky.), 243.

78. McCraw, Prophets of Regulation, 47–52; Testimony by Albert Fink before Congress in, ICC Debate, 48th, 274–85; Martin, “The Troubled Subject of Railroad Regulation,” 351–59.

79. The quotation is from Martin, “The Troubled Subject of Railroad Regulation,” 370. See also Skowronek, Building A New American State, 138–58; Nash, Gerald, “The Reformer Reformed: John H. Reagan and Railroad Regulation,” Business History Review 29(06 1955): 189–96CrossRefGoogle Scholar; and Chandler, The Visible Hand, 144.

80. See speech by James Wilson, in ICC Debate, 49th, 23. For a similar critique of pooling by Stickney, see Grant, The Corn Belt Route, 20.

81. ICC Debate, 49th, 456–58.

82. Stickney, The Railway Problem, 54.

83. Quoted in Stickney, The Railway Problem, 124.

84. Ibid., 130.

85. Ibid., 131.

86. Proctor, Not Without Honor, 258; Haney, Congressional History of Railways, 293–98.

87. Skowronek, Building A New American State, 150–60; Martin, “The Troubled Subject of Railroad Regulation in the Gilded Age”; McCraw, Prophets of Regulation, 62.

88. Thomas Cooley was an appropriate first chairman for the ICC. As historian Alan Jones has written, his intellectual roots in Jacksonian democracy, as well as his antimonopoly bias, predisposed him to sympathy with the intent of the law. Moreover, as ICC chairman, he tried carefully to outline the obligations of both managers and shippers and to locate ground upon which they might cooperate. See Jones, Alan, “Thomas M. Cooley and the Interstate Commerce Commission: Continuity and Change in the Doctrine of Equal Rights,” Political Science Quarterly 81 (12 1966): 602–27CrossRefGoogle Scholar; and Jones, Alan, “Thomas M. Cooley and Laissez-faire Constitutionalism: A Reconsideration,” Journal of American History 53 (03 1967): 750–71CrossRefGoogle Scholar.

89. ICC, Annual Report, (Washington, D.C., 1887), 78Google Scholar.

90. Ibid., 79.

91. ICC, Annual Report, 1888 (Washington, D.C., 1893), 13Google Scholar.

92. Quoted in Jones, “Thomas M. Cooley and the Interstate Commerce Commission,” 619.

93. ICC, Annual Report, 1890 (Washington, D.C., 1890), 47Google Scholar.

94. ICC, Annual Report, 1888, 17Google Scholar.

95. ICC, Annual Report, 1890, 38Google Scholar.

96. ICC, Annual Report, 1893, 33Google Scholar. See also Jones, “Thomas M. Cooley and the Interstate Commerce Commission,” 616–21 on Cooley's disappointment over management's failure to cooperate.

97. Interstate Commerce Commission v. Alabama Midland Railway Co., 69 Fed. Rep. 176.

98. Quoted in Horwitz, “Santa Clara Revisited,” 196.

99. Gordon, “Legal Thought and Legal Practice in the Age of Enterprise.”

100. ICC, Annual Report, 1897 (Washington, D.C., 1897), 42Google Scholar.

101. Ibid.

102. ICC v. Alabama Midland Railway Co., 69 Fed. Rep. 176–77.

103. ICC, Annual Report, 1898 (Washington, D.C., 1898), 16Google Scholar.

104. Ibid., 20.

105. Chandler and Tedlow, The Coming of Managerial Capitalism, 278; Chandler, The Visible Hand, 173–74; Moody, John, The Truth about the Trusts (New York: Moody, 1904), 431–50Google Scholar.

106. Berk, “Corporations and Politics,” 222–64; Lawrence Goodwyn, Democratic Promise; Hattam, “Economic Visions andPolitical Strategies”; Destler, “The InfluenceofEdward Kellogg upon American Radicalism, 1865–1896.”

107. Berk, “Corporations and Politics,” 273–321; Martin, Enterprise Denied.

108. Regulation of Railway Rates and Services. Relation of Government to Commerce and Transportation. Speeches of Hon. Robert M. LaFollette of Wisconsin in the Senate of the United States, 20 April, 1906 (Washington, D.C., 1906), 54–55.

109. See, for example, Fink, Leon, Workingmen's Democracy: The Knights of Labor and American Politics (Urbana: University of Illinois Press, 1983)Google Scholar; Nugent, Walter T. K., Money and American Society,1865–1880 (New York: Free Press, 1968)Google Scholar; AlanDawley, , Class and Community:The Industrial Revolution in Lynn (Cambridge: Harvard University Press, 1976)Google Scholar; Richard Oestreicher, “Terrence Powderly.”

110. Skowronek, Building a New American State; SkocpolandIkenberry,“ThePolitical Formation of the American Welfare State”; Keller, Affairs of State; McCraw, Prophets of Regulation, 80–142. See also the essays on the twentieth century in Weir, Margaret, Orloff, Ann Shola, and ThedaSkocpol, , The Politics of Social Policy in the United States (Princeton: Princeton University Press, 1988)Google Scholar.

111. On this project, more generally, see linger, Social Theory: Its Situation andIts Task.