Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880–1925

Carol Chomsky

doi:10.2307/743618

Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880–1925

Published online by Cambridge University Press: 28 October 2011

Carol Chomsky

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The years between 1890 and 1937 traditionally have been viewed as a period of extreme judicial activism with respect to economic regulation, a time during which courts, both state and federal, interfered on a grand scale with legislative reform agendas. Fueled by the constitutional theories of Thomas Cooley and Christopher Tiedeman, the story goes, the courts became bastions of laissez-faire constitutionalism, relying on doctrines of substantive due process and liberty of contract to invalidate legislative efforts to redress social and economic inequality.

Type: Articles
Information: Law and History Review , Volume 11 , Issue 2 , Fall 1993 , pp. 383 - 440

DOI: https://doi.org/10.2307/743618 [Opens in a new window]
Copyright: Copyright © the American Society for Legal History, Inc. 1993

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References

1. See Cooley, Thomas M., A Treatise on Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (1868)Google Scholar; Tiedeman, Christopher G., A Treatise on the Limitations of Police Power in the United States Considered from Both a Civil and Criminal Standpoint (1886)Google Scholar. Cooley's book “may have been the most cited legal treatise in American law” and has been called the “foundation … for a new and expanded version of due process.” Urofsky, Melvin, State Courts and Protective Legislation During the Progressive Era: A Reevaluation, 72 J. Am. Hist. 63, 65 (1985)CrossRef Google Scholar; Kens, Paul, The Source of a Myth: Police Powers of the States and Laissez-Faire Constitutionalism, 1900–1937, 35 Am. J. Leg. Hist. 70, 75 (1991)CrossRef Google Scholar. Tiedeman was similarly well cited and influential. See generally Jacobs, Clyde E., Law Writers and the Courts: The Influence of Thomas M. Cooley, Christopher G. Tiedeman, and John F. Dillon Upon American Constitutional Law (1954).Google Scholar

2. 198 U.S. 45, 56 (1905).

3. Ritchie v. People, 40 N.E. 454 (111. 1895) (working hours); In re Jacobs, 98 N.Y. 98 (1885) (manufacturing); Godcharles & Co. v. Wigeman, 6 A. 354 (Pa. 1886) (unfair employer practices).

4. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

5. See, e.g., Brennan, William, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977)CrossRef Google Scholar; Holmes, Steven, Frustrated by Federal Courts, A.C.L.U. Looks to States on Individual Rights, N.Y. Times, Sept. 30, 1991, at 14, col. 1Google Scholar; Oakes, James L., State Courts in a Time of Federal Constitutional Change, in Recent Developments in the Law (Practising Law Institute 1985)Google Scholar; Dudziak, Mary, Just Say No: Birth Control in the Connecticut Supreme Court Before Griswold v. Connecticut, 75 Iowa L. Rev. 915, 915–16 (1990)Google Scholar; Commonwealth v. Upton, 476 N.E.2d 548, 556 (Mass. 1985) (finding State constitutional law “provides more substantive protection to criminal defendants than does the Fourteenth Amendment in the determination of probable cause”); State v. Oquendo, 613 A.2d. 1300 (Conn. 1992) (finding police seizure under State constitution and rejecting federal standard); Commonwealth v. Wasson, 842 5.W.2d 487 (Ky. 1992) (overturning State sodomy statute under State constitution and rejecting federal standard of Bowers v. Hardwick).

6. State courts may be more successful in implementing their alternate visions today than in the past, however. In the nineteenth and early twentieth centuries, the courts in Minnesota and perhaps other states interpreted federal and State due process and equal protection clauses to place few restrictions on government action. Nonetheless, State governments were denied the power to act by the United States Supreme Court, which promulgated its own, more expansive, views of the scope of the due process and equal protection clauses. In contrast, today it is the State courts that place greater restrictions on government action through expansive interpretations of State constitutional clauses protecting individual rights and liberties. The State court view can prevail even if the United States Supreme Court takes a more narrow view of the ambit of the federal constitution. See, e.g., State v. Novembrino, 519 A.2d 820 (N.J. 1987) (rejecting good-faith exception to exclusionary rule under State law); People v. Houston, 724 P.2d 1166 (Cal. 1986) (interpreting State constitutional right to counsel more broadly than federal provision); In re T.W., 551 So.2d 1186 (Fla. 1989) (interpreting State constitutional privacy protections to strike down federally approved law requiring parental consent for abortion); Doe v. Director of Dep't of Social Servs., 468 N.W.2d 862 (Mich. Ct. App. 1991) (construing State constitution's equal protection clause to prohibit law barring use of State funds for abortions, though federal constitution is not violated).

7. Keller, Morton, Affairs of State: Public Life in Late Nineteenth Century America 371 (1977)CrossRef Google Scholar; see generally Hays, Samuel P., The Response to Industrialism (1957)Google Scholar; Wiebe, Robert, The Search for Order (1968)Google Scholar; Hofstadter, Richard, The Age of Reform: From Bryan to FDR (1956)Google Scholar; Chandler, Alfred D., The Visible Hand: The Managerial Revolution in American Business (1977).Google Scholar

8. Keller, supra note 7, at 289.

9. See Caine, Stanley P., The Origins of Progressivism, in The Progressive Era 11–34 (Gould, Lewis L. ed., 1974)Google Scholar; Gould, Lewis L., The Progressive Era, in id. at 1–10Google Scholar; Paul, Arnold M., Legal Progressivism, the Courts, and the Crisis of the 1890s, in American Law and the Constitutional Order 283 (Friedman, Lawrence M. & Scheiber, Harry N. eds., 1988)Google Scholar; see generally DeWitt, Benjamin Parke, The Progressive Movement (1915)Google Scholar; Link, Arthur S., Woodrow Wilson and the Progressive Era, 1900–1917 (1954).Google Scholar

10. Rodgers, Daniel T., In Search of Progressivism, 10 Revs. Am. Hist. 113 (1982)CrossRef Google Scholar; see also Gould, supra note 9, at 9.

11. Kolko, Gabriel, The Triumph of Conservatism: A Reinterpretation of American History, 1900–1916, at 1–10 (1963)Google Scholar; Gould, supra note 9, at 8.

12. Munn v. Illinois, 94 U.S. 113 (1877) (grain warehouses); Stone v. Farmers' Loan and Trust Co., 116 U.S. 307 (1886) (railroad commission); Beer Co. v. Massachusetts, 97 U.S. 25 (1878) and Mugler v. Kansas, 123 U.S. 623 (1887) (intoxicating liquors); Powell v. Pennsylvania, 127 U.S. 678 (1888) (oleomargarine).

13. Munn v. IUinois, 94 U.S. at 126, 132–33.

14. 134 U.S. 418 (1890).

15. See Paul, Arnold M., Conservative Crisis and the Rule of Law 39–44 (1960).Google Scholar

16. In Lochner v. New York, 198 U.S. 45 (1905), the Court declared unconstitutional a New York law setting a maximum number of hours for bakery workers. In Adkins v. Childrens Hospital, 261 U.S. 525 (1923), the Court struck down a federal statute creating a minimum wage for women workers in the District of Columbia. In Coppage v. Kansas, 236 U.S. 15 (1915), the Court overturned a Kansas statute that made it illegal for an employer to fire an employee for being a member of a labor union. The Court had earlier struck down similar federal legislation in Adair v. United States, 208 U.S. 161 (1908).

17. See, e.g., Cincinnati, New Orleans & Texas Pacific Ry. Co. v. ICC, 162 U.S. 184 (1896) (holding that the Interstate Commerce Act did not give the Interstate Commerce Commission the power to set rates); ICC v. Alabama Midland Ry. Co., 168 U.S. 144 (1897) (concluding that in an appeal from an ICC order a court is to decide the case de novo, without deference to the administrative agency decision); United States v. E.C. Knight, 156 U.S. 12 (1895) (holding that the Sherman Act did not apply to manufacturing, but only to “commerce”).

18. See Loewe v. Lawlor, 208 U.S. 274 (1908) (secondary boycott is illegal restraint of trade under the Sherman Act).

19. See, e.g., Wabash R.R. Co. v. Illinois, 118 U.S. 557 (1886) (State may not regulate charges for interstate journey originating within its borders); Seaboard Airline Ry. v. Blackwell, 244 U.S. 310 (1917) (State may not require train to slow when approaching a public crossing); Lemke v. Farmer's Grain Co., 258 U.S. 50 (1922) (striking down North Dakota statute regulating the purchase of grain in order to prevent buyers from defrauding farmers).

20. See generally JACOBS, supra note 1.

21. In re Jacobs, 98 N.Y. 98 (1885); Ives, 94 N.E. 431 (N.Y 1911); Godcharles, 6 A. 354 (Pa. 1886); Ritchie, 40 N.E. 454 (111. 1895).

22. Urofsky, supra note 1, at 63. Among those Urofsky cites for commenting on the conservative bias of the courts are Theodore Roosevelt, Gilbert Roe, Roscoe Pound, and Louis Brandeis.

23. Theodore Roosevelt, Criticism of the Courts, The Outlook, Sept. 24, 1910, at 150. See also Theodore Roosevelt, Judges and Progress, The Outlook, Jan. 6, 1912, at 40; Theodore Roosevelt, Right of the People to Review Judge-Made Law, The Outlook, Aug. 8, 1914, at 843.

24. Pound, Roscoe, Liberty of Contract, 18 Yale L.J. 454, 457 (1909).CrossRef Google Scholar

25. Id. at 487.

26. Brandeis, Louis, The Living Law, 10 Ill. L. Rev. 461, 464 (1916).Google Scholar

27. See Ross, William G., A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, Trade Unionists to Curb Federal Judicial Power, 1890–1937 (forthcoming 1994, manuscript on file with author)Google Scholar; Lawson, Steven F., Progressives and the Supreme Court: A case for Judicial Reform in the 1920s, 42 The Historian 419 (1980).CrossRef Google Scholar

28. See, e.g., Paul, supra note 15; Twiss, Benjamin R., Lawyers and the Constitution: How Laissez-Faire Came to the Supreme Court (1942)Google Scholar; Beth, Loren, The Development of the American Constitution, 1877–1917 (1971).Google Scholar

29. Keller, supra note 7, at 34. The actual figures Keller gives are ninety-three percent of the pre-1901 cases and seventy-six percent of decisions between 1901 and 1910, possibly indicating a shift in judicial activism within the broader time period. Id. Much earlier, Charles Warren made a similar point, noting that the Supreme Court struck down State legislation on grounds of violation of the Fourteenth Amendment in only three cases between 1887 and 1911. Warren, Charles, The Progressiveness of the United States Supreme Court, 13 Colum. L. Rev. 294, 295 (1913).CrossRef Google ScholarBut see Soifer, Aviam, The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921, 5 Law & Hist. Rev. 249, 254 & n. 12 (1987)CrossRef Google Scholar (criticizing Warren's sampling technique, though acknowledging that the United States Supreme Court may have been less hostile to progressive legislation than the State courts).

30. Brock, William, Investigation and Responsibility 68–69 (1984)CrossRef Google Scholar. Accord McCurdy, Charles W., Justice Field and the Jurisprudence of Government-Basiness Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897, 61 J. Am. Hist. 970, 979–80 (1975)CrossRef Google Scholar (arguing that Field's concepts were “wrenched … out of their original context” and applied incorrectly by the later laissez-faire court).

31. Semonche, John, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920, at xi (1978)Google Scholar. See also Beth, supra note 28, at 141, 190 (concluding that the Supreme Court took a pragmatic, if somewhat fumbling and inconsistent, approach to cases challenging federal and State economic regulatory legislation).

32. Urofsky, Melvin, Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era, Yearbook of the Supreme Court Historical Society 53, 55 (1983).Google Scholar

33. Brock, supra note 30, at 61, 69, 79.

34. Urofsky, supra note 1, at 63. See also Hall, Kermit, The Magic Mirror 226–46 (1989) (adopting Urofsky's view of State court activity).Google Scholar

35. Urofsky, supra note 1, at 79–88.

36. Id. at 91.

37. Forbath, William E., The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1133 (1989).CrossRef Google Scholar

38. Semonche, supra note 31, at 167.

39. Beth, supra note 28, at 190.

40. Soifer, supra note 29, at 260. Soifer also confirms the traditional view of State court attitudes, noting that “[t]he highest State courts generally competed with one another for the starkest application of freedom of contract and the truest belief in laissezfaire ideology.” Id. at 254.

41. Kens, supra note 1, at 77–78, 82–83, 97–98.

42. Id. at 77. The same pattern can also be seen in the Court's equal protection jurisprudence. In Atchison, Topeka & Santa Fe R.R. v. Mathews, 174 U.S. 96 (1899), for example, the Court approved a statute imposing attorneys' fees on railroads found liable for damages from fires caused by railroad operations. In Gulf, Colo. & Santa Fe Ry. v. Ellis, 165 U.S. 150 (1897), in contrast, the Court struck down a similar but broader statute imposing attorneys' fees on railroads that lost any suit in which fifty dollars or less was at issue. See generally Kay, Richard S., The Equal Protection Clause in the Supreme Court, 1873–1903, 29 Buff. L. Rev. 667 (1980).Google Scholar

43. Kens, supra note 1, at 78–79.

44. Id. at 81.

45. Id. at 97.

46. See Soifer, supra note 29, at 249–55; Kay, supra note 42, at 667–68; Hovenkamp, Herbert, Enterprise and American Law, 1836–1937, at 171–82 (1991).CrossRef Google Scholar

47. See supra notes 33–36 and accompanying text.

48. See Urofsky, supra note 1.

49. See supra note 21 and accompanying text.

50. Under the doctrine announced in Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842), State courts were also constrained by the federal courts' aggressive use of general common law to limit or ignore competing State law. See, e.g., Baltimore & Ohio R.R. Co. v. Baugh, 149 U.S. 368 (1893) (applying fellow-servant doctrine to absolve employer of responsibility for injury to employee despite existence of State law abrogating fellow-servant rule). See generally Freyer, Tony, Harmony & Dissonance: The Swift & Erie Cases in American Federalism 45–75 (1981).Google Scholar

51. Blegen, Theodore C., Minnesota: A History of the State 315–29 (1975).Google Scholar

52. Id. at 319, 347–57; 3 Folwell, Willam Watts, A History of Minnesota 60, 252 (1969).Google Scholar

53. Blegen, supra note 51, at 374. Production continued to increase astronomically. In the first half of tne 1930s, almost two-thirds of the iron ore mined anywhere in the United States came from Minnesota. Between 1941 and 1950, production reached more than 643 million tons. Id.

54. Id. at 370–71.

55. Id. at 295–304.

56. See McCurdy, supra note 30, at 970 (1975).

57. See generally 1 Folwell, supra note 52, at 327–50 (1956); Blegen, supra note 51, at 295–304. In 1871, the Railroad Commissioner noted that the railroads had received, or would receive upon completion of their roads, 12,222,780 acres of land in the State, “an area larger than the whole of Massachusetts, Rhode Island, Connecticut and one half of New Hampshire, embracing much the finest wheat lands in America.” 1871 Report of the Minnesota Railroad Commissioner 12.

58. See, e.g., 1858 Minn. Gen. Laws ch. 70, § 9. This enactment by the first session of the state legislature was a general incorporation law for railroads. Earlier, the territorial legislature had granted individual railroads the power of eminent domain along with their franchises. See, e.g., 1853 Minn. Laws ch. 5, § 3; ch. 10, § 14; ch. 12, § 8; ch. 15, § 8; ch. 16, § 10; 1857 Minn. Laws ch. 1, § 13.

59. 1858 Minn. Gen. Laws ch. 1 (amending Minn. Const. art. IX, § 10). The amendment passed by a vote of 25,023 to 6,733. Anderson, William, A History of the Constitution of Minnesota 278 (1921).Google Scholar It was not long before the people of the state had reason to regret their action. As part of the security for the loan, each railroad was required to transfer to the state an amount of the railroad's own first mortgage bonds on its roads, lands, and franchises equal to the amount of the state bonds issued to the railroad. However, the constitutional amendment failed to require that these railroad bonds have priority over other liens on railroad property. Realizing the risk to the state, the governor of Minnesota refused to issue the state's bonds unless the railroads promised to give the state priority. The railroads declined to give the state priority and successfully sued to force the governor to issue the bonds. Minnesota & Pac. R.R. Co. v. Sibley, 2 Minn. 1 (1858). Within a year, the railroads encountered severe financial difficulty, and their bonds became virtually worthless. In 1860, the constitution was amended to remove the loan authorization and to add a provision requiring that any tax used to pay the state's railroad bonds would have to be ratified by a majority of voters of the state. 1860 Minn. Laws, Concurrent Resolution No. 1. Several subsequent measures to pay the bonds were defeated by the voters. The bondholders were not paid until 1881, after the Minnesota Supreme Court declared the 1860 constitutional amendment void as an impairment of contract in violation of the United States Constitution. Minnesota ex rel. Hahn v. Young, 9 N.W. 737 (Minn. 1881).

60. See Osborne v. Knife Falls Boom Corp., 21 N.W. 704 (Minn. 1884). For a discussion of similar state franchising policy and litigation, see Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915, at 143–281 (1964).Google Scholar

61. 1855 Minn. Laws ch. 49; 1857 Minn. Laws (Ex. Sess.) ch. 60.

62. 1875 Minn. Gen. Laws ch. 16.

63. See, e.g., 1873 Minn. Spec. Laws ch. 111 (railroads); 1881 Minn. Gen. Laws (Ex. Sess.) ch. 54 (mining). The railroads paid a one percent tax on gross earnings in lieu of all taxes on the land and other property they held and were exempt from tax on the land granted by the state until the land was sold or contracted to be sold. The amount and extent of taxation of railroads remained a contentious political issue for many years, with the railroad lobbyists fighting, often successfully, to avoid increases. See Chrislock, Carl, The Progressive Era in Minnesota, 1899–1918, at 9, 17, 49 (1971).Google Scholar The tax on mining companies was limited to fifty cents per ton of copper and one cent per ton of iron ore extracted, in lieu of other taxes. Passage of the law was secured by George Stone, one of the major mining promoters and also a member of the State legislature; it was “obviously intended to guarantee virtual exemption from taxation at the outset.” Blegen, supra note 51, at 363. The law was declared unconstitutional in 1898 because it violated the provisions mandating equality of taxation and valuation. State v. Lakeside Land Co., 73 N.W. 970 (Minn. 1898).

64. See Blegen, supra note 51, at 322–23, 364. As a means of encouraging the timber industry, the State legislature also authorized the State land commission to issue permits to lumber companies to cut timber on lands held for the school fund, and for several decades such permits were granted for no or greatly undervalued fees. Id. at 323–24.

65. See generally 3 Folwell, supra note 52, at 32–57. For example, the railroad commissioner noted in his annual report in 1871 that “[g]reat complaint” was made against the “unjust and burdensome discrimination in [the] freight tariffs” of the Winona and St. Peter Railroad. To escape the rate discrimination, farmers hauled thousands of bushels of wheat up to twenty-five miles away from the closest railroad station and sold it there to buyers who hauled the wheat back again the next day, “past the door of the very farmer who had raised the wheat.” The commissioner also reported that railroad companies had set such high rates that it was less expensive to haul agricultural merchandise with teams than by railroad, and that the high rates were particularly burdensome to farmers whose produce barely paid for the labor and expense of raising the crops. 1871 Report of the Minnesota Railroad Commissioner 17. The commissioner further charged that “by a system of collusion or by certain technicalities, not contemplated by the spirit of the several acts of exemption,” the railroads circum-vented the taxes that were to be imposed on lands when sold, underreported their incomes, and thus underpaid the tax on gross earnings. Id. at 21–26.

66. 1871 Minn. Gen. Laws ch. 24, at 61. At the same time, the legislature created the position of railroad commissioner, who was to “inquire into … any neglect or infringement of the laws for the regulation of railroads” and report annually to the legislature on the financial and physical condition of each railroad in the State. 1871 Minn. Gen. Laws ch. 22, § 3. In 1874, the legislature replaced the commissioner with a board empowered to set a schedule of maximum rates and to initiate prosecution against railroads that violated the laws of the state. 1874 Minn. Gen. Laws ch. 26. Minnesota was among the first states to pass such a “Granger law,” named after the farm organization that had agitated for regulation of the railroads. The first Granger Law was enacted in Massachusetts in 1869. 1869 Mass. Acts ch. 408. It was a weak version, however, providing only for supervision of the railroads, and not for rate regulation. See Mccraw, Thomas K., Prophets of Regulation 57–60 (1984)Google Scholar; Friedman, Lawrence, A History of American Law 446–47 (2d ed. 1985).Google Scholar Illinois prescribed maximum rates in 1871, and lowa and Wisconsin passed similar legislation in 1874. See 1871 Ill. Laws at 640; 1874 lowa Acts ch. 68; 1874 Wisc. Laws ch. 273.

Before 1871, by Special legislation related to individual railroad companies, the Minnesota legislature enacted provisions requiring particular railroads to charge reasonable rates for carrying freight and passengers. See, e.g., 1866 Minn. Spec. Laws ch. 4, § 1; 1866 Minn. Spec. Laws ch. 6, § 1; 1866 Minn. Spec. Laws ch. 9, § 1. And in one 1866 Special law, the legislature “reserve[d] the right to regulate the price of freight and fare” upon the branch road being authorized. It appears that such restrictions were not enforced before the 1871 general legislation.

67. See, e.g., 1874 Minn. Gen. Laws ch. 26 (rate regulation); 1885 Minn. Gen. Laws ch. 188 (regulation of railroads by Railroad and Warehouse Commission); 1881 Minn. Gen. Laws ch. 94 (regulating railroad consolidation); 1872 Minn. Gen. Laws ch. 25 (requiring railroads to build fences and cattle guards); 1874 Minn. Gen. Laws ch. 30 (making railroads liable for fire damage); 1895 Minn. Gen. Laws ch. 196, § 13 (requiring engines to have spark arresters and prohibiting engineers from leaving coals uncovered).

68. 1887 Minn. Gen. Laws ch. 13. For an example of cases applying the common law rule, see Brown v. Winona & St. Peter Ry. Co., 6 N.W. 484 (Minn. 1880).

Not all legislative efforts of the time were restrictive, however. In 1871, the legislature also passed a bill providing for distribution to railroad companies of a half million acres of land allocated to the state for internal improvement. Governor Austin vetoed the measure, an action that won him great popular approval and easy re-election in 1871. Blegen, supra note 51, at 291; 3 Folwell, supra note 52, at 35–36. In 1875, in reaction to the economic depression that followed the Panic of 1873, Minnesota repealed its rate-setting law and replaced the board supervising the railroads with a single commissioner again empowered only to “enquire into” neglect or violation of the law by the railroads. 1875 Minn. Gen. Laws ch. 103. Not until 1887 did the state again legislate rates for the railroads. See infra notes 189–91 and accompanying text.

69. 1881 Minn. Laws ch. 125 (board of examiners); 1885 Minn. Gen. Laws ch. 147 (pharmacists); 1891 Minn. Gen. Laws ch. 30, § 4 (midwives); 1889 Minn. Gen. Laws ch. 19, § 2 (dentists); 1893 Minn. Gen. Laws ch. 31, § 3 (veterinarians); 1885 Minn. Gen. Laws ch. 205 (employment agencies).

70. 1885 Minn. Gen. Laws ch. 149 (milk and butter); 1889 Minn. Gen. Laws ch. 7 (baking powder); 1891 Minn. Gen. Laws ch. 12 (lard).

71. 1889 Minn. Spec. Laws ch. 375 (emission of smoke); 1889 Minn. Gen. Laws ch. 253 (boilers and boiler operators).

72. 1889 Minn. Gen. Laws ch. 217.

73. See generally 2 Minnesota, Theodore Christianson: A History of the State and Its People 207–386 (1935)Google Scholar; Chrislock, supra note 63.

74. The constitutional amendment was proposed by 1887 Minn. Gen. Laws ch. 1 and was ratified as article 4, section 35. It provided that: “Any combination of persons [or corporations] to monopolize the markets for food products in this State, or to interfere with, or restrict the freedom of such markets, is hereby declared to be a criminal conspiracy, and shall be punished in such manner as the legislature may provide.”

In 1891, the legislature enacted a statute making illegal all combinations to fix prices or to control the production of any commodity. 1891 Minn. Gen. Laws ch. 10. The provisions of the statute were strengthened in 1899. 1899 Minn. Gen. Laws ch. 359.

75. See, e.g., 1905 Minn. Gen. Laws chs. 229, 235, 303, 331; 1907 Minn. Gen. Laws chs. 318, 321, 446, 220 (insurance); 1909 Minn. Gen. Laws ch. 201 (banking); 1913 Minn. Gen. Laws ch. 467 (workers' compensation); 1895 Minn. Gen. Laws ch. 49 (maximum of ten hours to be worked each day unless overtime paid, except for agricultural laborers, domestics employed by the month, and persons caring for livestock); 1901 Minn. Gen. Laws ch. 310 (maximum of eight hours to be worked each day on public contracts); 1907 Minn. Gen. Laws ch. 299 (child labor); 1909 Minn. Gen. Laws ch. 499 (same); 1912 Minn. Gen. Laws (Spec. Sess.) ch. 8 (same); 1913 Minn. Gen. Laws ch. 547 (minimum wage).

76. Kolko, supra note 11, at 2. Compare, e.g., Kolko, supra, and Wiebe, supra note 7, at 133–363 and Davis, Lance & North, Douglass C., Institutional Change and American Economic Growth 157–66 (1971)CrossRef Google Scholarand Benson, Lee, Merchants, Farmers, and Railroads 86–93 (1955)CrossRef Google Scholarwith Hovenkamp, supra note 46, at 134–68 and Purcell, Edward, Ideas and Interests: Businessmen and the Interstate Commerce Act, 54 J. Am. Hist. 561 (1967)CrossRef Google Scholarand Martin, Albro, Enterprise Denied: Origins of the Decline of American Railroads, 1897–1917 (1971).Google Scholar

77. An additional, regular part of most challenges was an allegation that the statute violated the State constitutional provisions requiring that each bili be limited to a single subject stated in its title. Minn. Const. art. IV, § 27. Most of these challenges failed.

78. I have made no attempt to explore litigation before the State trial courts in Minnesota. Because the trial court opinions are unpublished and unindexed, any such undertaking would involve forbidding logistical difficulty. Given the range of cases in the supreme court docket, and the fact that during the period in question cases were brought to the court by appeal, not by certiorari, it seems likely that the bulk of the most important cases ultimately were decided by the high court. This is espeeially true with respect to any case in which the trial court struck down legislation, since the government would likely appeal rather than allow a trial judge's determination to be a final bar to enforcement.

79. See text accompanying notes 81–133 (liberty of contract); 134–86 (class legislation); 187–99 (delegation).

Litigants—particularly the railroads—also challenged regulations as takings of their property without due process or compensation. In one early case, the court struck down a statute that required railroads to permit any person or company to construct, maintain, and operate a grain elevator or warehouse at any of the railroads' stations at an annual rental of one dollar. State v. Chicago, Milwaukee & St. Paul Ry. Co., 31 N.W. 365 (Minn. 1887). In later cases, the court upheld similar but less draconian impositions on the basis that the railroads were quasi-public corporations that acquired their lands for use in the public interest and must operate to serve the best interests of the public, as judged by the legislature. See Farwell Farmers' Warehouse Ass'n v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 56 N.W. 248 (Minn. 1893) (statute required railroad to give equal facilities for transportation of grain to all who erect or desire to erect warehouses at its stations); Range Sand-Lime Brick Co. v. Great Northern Ry. Co., 163 N.W. 656 (Minn. 1917) (statute required railroad to provide reasonable shipping facilities; pursuant to statute, Railroad and Warehouse Commission may order railroad to build spur track). In general, litigants in Minnesota were no more successful challenging legislation as unlawful takings than they were when they relied upon liberty of contract or equal protection.

80. See infra notes 201–29 and accompanying text.

81. One source indicates that the Court invalidated State or federal regulations pursuant to the due process clause in 197 cases, although it upheld an even larger number of provisions. Wright, Benjamin F., The Growth of American Constitutional Law 154, 174 (1942).Google ScholarSee also Frankfurter, Felix, Mr. Justice Holmes and the Supreme Court 97–137 (1938)Google Scholar (appendix listing and describing 232 cases in which State action held invalid under the Fourteenth Amendment).

82. See, e.g., Allgeyer v. Louisiana, 165 U.S. 578 (1897) (striking down statute pro-hibiting marine insurance contracts with companies out of State); Lochner v. New York, 198 U.S. 45 (1905) (invalidating statute mandating limited work week for bakers); Coppage v. Kansas, 236 U.S. 1 (1915) (striking down statute prohibiting employers from requiring employees to refrain from union membership); Adkins v. Children's Hospital, 261 U.S. 525 (1923) (invalidating minimum wage law for women).

83. See Semonche, supra note 31, at 115, 167; Urofsky, supra note 1, at 53–72; Brown, Ray A., Due Process of Law, The Police Power and The Supreme Court, 40 Harv. L. Rev. 943 (1927).CrossRef Google Scholar

84. Kens, supra note 1, at 78; see sources cited in supra note 28.

85. 6 A. 354 (Pa. 1886).

86. Id. at 356.

87. 94N.E. 431 (N.Y. 1911).

88. 40 N.E. 454 (Ill. 1895).

89. 218 N.W. 238, 240 (Minn. 1928).

90. Knobloch v. Chicago, Milwaukee & St. Paul Ry. Co., 18 N.W. 106, 107 (Minn. 1884).

91. 165 N.W. 495 (Minn. 1917). The case was a consolidation of two actions, one by a group of taxpayers and one by the owner of a manufacturing plant, that sought to enjoin the Minimum Wage Commission from expending any funds to implement the law. In each case, the trial court had granted the plaintiffs' requests for temporary injunctions. Id. at 495. At least one of the trial court decisions declared the law unconstitutional not as a violation of liberty of contract but as an unconstitutional delegation of lawmaking power. Minneapolis Journal, Dec. 21, 1917, at 1, col. 4. See infra notes 187–99 and accompanying text (discussion of Minnesota Supreme Court cases on delegation of lawmaking powers).

92. Williams v. Evans, 165 N.W. at 496.

93. Id. at 496–97.

94. The United States Supreme Court, too, appeared to retreat from the implications of Lochner when it upheld several maximum-hours statutes in subsequent years. See Muller v. Oregon, 208 U.S. 412 (1908) (upholding maximum-hours statute for women); Bunting v. Oregon, 243 U.S. 426 (1917) (upholding ten-hour day for manufacturing employees). But the Court continued to use liberty of contract to invalidate regulatory legislation, see infra notes 95–96, 104 and accompanying text, and did not consistently defer to legislative judgment as did the Minnesota court throughout this period.

95. 261 U.S. 525 (1923).

96. Id. at 555–60.

97. Stevensonv. St. Clair, 201 N.W. 629 (Minn. 1925). The law straek down in Adkins also applied to minors, but the particular challenge brought in that case related only to wages for women. See Adkins, 261 U.S. at 539–42.

98. 1923 Minn. Laws ch. 120 (amending 1921 Minn. Laws ch. 305).

99. The cooperative movement was especially strong in Minnesota in the Late 1800s and early 1900s, particularly in the dairying field. Cooperatives represented an effort by farmers to retain more of the profits from their farm products by reducing dependence on independent marketers. By 1898, Minnesota had 560 cooperative creameries. Twenty years later, when there were 1400 cooperative creameries in the United States, 671 of them, or 49 percent, were in Minnesota. Blegen, supra note 51, at 396–98.

100. As enacted in 1909 and amended in 1913, 1917, and 1921, the Minnesota statute had included such a “scienter” requirement, but it was omitted in the 1923 revision. See 1909 Minn. Gen. Laws ch. 468; 1913 Minn. Gen. Laws ch. 230; 1917 Minn. Laws ch. 337; 1921 Minn. Laws ch. 305.

101. Fairmont Creamery Co. v. Minnesota, 274 U.S. 1, 3 (1926) (argument of State of Minnesota), rev'd State v. Fairmont Creamery Co., 210 N.W. 608 (Minn. 1926).

102. State v. Fairmont Creamery Co., 210 N.W. 163, 164 (Minn. 1926) (appeal after post-conviction denial of new trial). See also Wright v. May, 149 N.W. 9, 10 (Minn. 1914) (upholding a law requiring auctioneers to be licensed and allowing licenses to be granted only to voters in the country because “[w]e are unable to say that the legislature had no grounds for the discrimination made against nonresidents….”).

103. State v. Fairmont Creamery Co., 202 N.W. 714, 718 (Minn. 1925) (appeal on certified questions after conviction under statute).

104. Fairmont Creamery Co. v. Minnesota, 274 U.S. 1, 8, 11 (1926).

105. Urofsky, supra note 1, at 90. Urofsky suggests that other regulatory legislation was viewed as setting minimum standards for employer treatment of their employees, while pro-union legislation was perceived to be aimed at increasing the bargaining power of the employees. The latter measures, he suggests, were not viewed as protective, but as permitting a form of conspiracy until then forbidden by the common law. Id.

106. State ex rel. Scheffer v. Justus, 88 N.W. 759 (Minn. 1902). The law was passed in 1895, perhaps in response to the blacklisting activities of the mining companies, whieh generally prohibited union membership. The law may not have been enforced effectively, as blacklisting activities continued even after the statute was upheld. See Alanen, Arnold R., Early Labor Strife on Minnesota's Mining Frontier, 1882–1906, 52 Minn. Hist. 246, 248, 255, 263 (1991).Google Scholar

107. See Adair v. United States, 208 U.S. 161 (1908). When Adair was decided, a local union newspaper said it demonstrated, if further demonstrations were needed, that “[no] real dependence can be placed on the Supreme Court for the protection of the rights of the individual against the aggression of organized capital.” Minnesota Union Advocate, Jan. 31, 1908, at 4, col. 2. There was no reaction from the mainstream press, however.

108. State ex rel. Smith v. Daniels, 136 N.W. 584, 586 (Minn. 1912) (“[T]his court is in duty bound to follow” the ruling of the Supreme Court; “We must, therefore, in obedience to the ruling of the Federal Supreme Court, accept as the law of the land” that an employer may discharge an employee for any cause, including membership in a labor union; “So long as that decision remains in force, any act of a legislative body at variance therewith must be regarded as unconstitutional.”).

109. Id. at 586.

110. For additional cases upholding statutes against due process challenges, see, e.g., State ex rel. Corcoran v. Chapel, 66 N.W. 205 (Minn. 1896) (statute barring use of common carrier to ship certain game to market); Emmons v. Minneapolis and St. Louis Ry. Co., 29 N.W. 202 (Minn. 1886) (statute requiring railroads to provide fences and cattle guards and making them responsible for injury caused by their failure to do so); State v. Gladson, 59 N.W. 487 (Minn. 1894) (upholding law requiring all intrastate trains to stop at the county seat; although the law may be particularly burdensome in some instances, it is for the legislature to decide whether such a regulation is wise); State v. McMasters, 283 N.W. 767 (Minn. 1939) (upholding statute allowing governor to set minimum prices for barber services, although there were many divided State court opinions on this issue); Mathison v. Minneapolis Street Ry. Co., 148 N.W. 71 (Minn. 1914) (upholding workers' compensation law); State v. Nordstrom, 210 N.W. 1001 (Minn. 1926) (upholding state's Blue Sky law regulating securities); Butler v. Chambers, 30 N.W. 308 (Minn. 1886) (upholding statute prohibiting sale of butter substitutes).

111. 1923 Minn. Lawsch. 264.

112. 1923 Minn. Laws ch. 264, § 26. The association was authorized to obtain an injunction against its member to prevent further breach and to sue for liquidated damages fixed by the bylaws or marketing agreement. Id. § 18. The law generally followed the form of the Bingham Cooperative Marketing Act of Kentucky, passed in early 1922, which became a model for statutes in many states. See Knapp, Joseph G., The Advance of American Cooperative Enterprise, 1920–1945, at 56, 212 (1973)Google Scholar; see generally, Hanna, John, The Law of Cooperative Marketing Associations 112–75, 224–48 (1931).Google Scholar

113. Minnesota Wheat Growers Coop. Marketing Ass'n v. Huggins, 203 N.W. 420 (Minn. 1925). The primary challenge was on the ground that the legislation permitted producers of farm products to engage in activities denied to others and was thus class legislation and a violation of equal protection. The court's treatment of such arguments is discussed below, see infra notes 134–86 and accompanying text. It should be noted, however, that the court used language similar to that employed in the Fairmont Creamery case, presuming that the legislature had made the proper inquiry into the facts and had made permissible classifications based on that inquiry. 203 N.W. at 425.

114. 1923 Minn. Laws ch. 264, § 27. The provision mandated five hundred dollars in damages to be paid to the association for each offense and permitted the association to obtain an injunction to prevent further breaches of the marketing agreement. This section was also borrowed from the model Bingham Cooperative Marketing Act of Kentucky. 1922 Kentucky Laws ch. 1, § 27.

115. See Commonwealth v. Hodges, 125 S.W. 689, 693 (Ky. 1910).

116. 204 N.W 314 (Minn. 1925).

117. Most State cooperative marketing statutes also prohibited third parties from “knowingly inducing” a breach of a member's contract with a cooperative, and such provisions had been upheld uniformly. See, e.g., Fort v. Cooperative Farmer's Exchange, 256 P. 319 (Colo. 1927).

118. 204 N.W. at 315.

119. Compare 1923 Minn. Laws ch. 264, § 27 with 1922 Ky. Laws ch. 1, § 27.

120. 204 N.W. at 315.

121. Id.

122. 276 U.S. 71, 96 (1928). Comments published in the Minnesota press after the Radke decision suggest that opinion may not have been so “general” that a non-interference provision was essential to the cooperative movement. Wilfred Ramble, attorney for the Minnesota Potato Growers Association, said Minnesota's cooperative law remained effective without the invalidated provision and the Director of Publicity for the Minnesota Farm Bureau Federation thought the decision might “prove a benefit” to cooperatives “by removing a feel that the law was not exactly fair to third parties.” St. Paul Daily Dispatch, June 5, 1925, at 1, col. 1. The St. Paul Pioneer Press, in an editorial, suggested that the cooperatives should be able to stand on their own by proving to the “rank and file” that they must stand together. “If farmers cannot of themselves see through a malicious private trader's game, imposing harsh penalties will do no good, but only cause resentment and anger on the part of the farmer and undermine the cooperative more certainly than anything else that could be done.” St. Paul Pioneer Press, June 6, 1925, at 8, col. 2. Although these comments might be seen as trying to put defeat in as favorable a light as possible, their truth seems proved by the subsequent history of Minnesota cooperatives, which apparently were not weakened by the ruling.

123. 276 U.S. at 97.

124. See Soifer, supra note 29; Kay, supra note 42.

125. 276 U.S. at 96.

126. See Paper Book at 34–37 (Affidavit of A.O. Radke), Minnesota Wheat Growers Coop. Ass'n v. Radke, 163 Minn. 403 (1925) (discussing conversation with Fred Tiede when sale made and statement by Fred Tiede during trial preparation).

127. Hanna, supra note 112, at 254.

128. See Minnesota Wheat Growers Coop. Ass'n v. Huggins, 203 N.W. 420 (Minn. 1925); supra notes 112–13 and accompanying text.

129. See Paper Book at 16 (Answer of A.O. Radke), Record at 20–21 (Answer of Commander Elevator Co.) & Record at 49–50 (Answer of W.F. Markham), Radke, 163 Minn. 403 (1925).

130. In two other cases, the Minnesota Supreme Court found that a State statute failed to pass muster under the due process clause, but neither of them had broad significance. In State v. Chicago, Milwaukee & St. Paul Ry. Co., 71 N.W. 400 (Minn. 1897), the Minnesota Supreme Court struck down a statute requiring that railroad companies place with a licensed storage company or warehouse all goods not retrieved by the consignor within twenty days of arrival at their destination. The court found the statute to be an unconstitutional interference with the liberty of the carriers and not a lawful exercise of the police power of the State. The court's conclusion appeared to be motivated less by concern for the restrictions on the carrier than by its suspicion that the purpose of the statute was not to protect the public but “to subserve the interests of a certain class of warehousemen.” Id. at 401. If read literally, the statute would permit licensing only of those storage companies that applied within thirty days of passage of the act. This would, in effect, confer a monopoly on existing warehouse facilities. The statute also appeared to require the storage of unretrieved goods if the warehouse paid the carrier's transportation charges, but did not require the warehouse to accept the goods, thereby allowing the storage company to accept only advantageous business and to reject the rest. Moreover, the supreme court appeared to agree with the trial judge that the law was “extremely crude in form” and so unclear that “it is impossible to ascertain with much satisfaction what was intended by some of its important provisions.” Paper Book at 7 (Memorandum Opinion), State v. Chicago, Milwaukee & St. Paul Ry. Co., 68Minn. 381 (1897).

In a second case, the plaintiff charged that a railroad was negligent because it was operating a train in violation of a St. Paul city ordinance that set a maximum speed of four miles per hour within city limits. The law had earlier been upheld as applied to a portion of the city laid out in streets, with populated areas nearby, but the court found it to be “manifestly unreasonable and void” as to portions of the city retaining a rural character. The railroad, therefore, was held not to be negligent solely for operating in violation of the statute. Evison v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 48 N.W. 6 (Minn. 1891).

131. 137 N.W. 170 (Minn. 1912).

132. In its advertisement offering a discount for solving a puzzle, the defendant company promised to pay five hundred dollars to a charitable institution “if it can be shown that we have raised the prices of our pianos one single penny on account of you having been awarded this prize,” indicating the nature of the business practices targeted by the statute. See Appellant's Brief, Kanne v. Segerstrom Piano Mfg. Co., 118 Minn. 483 (1912).

133. The court demonstrated a particularly interesting form of deference in Stolz v. Thompson, 46 N.W. 410 (Minn. 1890), reviewing a statute requiring makers of baking powder to indicate whether their product contained aluminum. The court indicated that the legislature acted reasonably whether aluminum in fact degraded the quality of baking powder or a large proportion of people simply believed that to be so. Similarly, in State ex rel. Beek v. Wagener, 80 N.W. 633 (Minn. 1899), the court upheld a statute requiring the licensing of commission merchants selling agricultural products because, whether true or not, a majority of people had become convinced that many such merchants operated fraudulently “and in great numbers besieged the legislature in behalf of the suppression of the alleged evil practices.” Id. at 635.

134. See supra note 82 and accompanying text.

135. Kay, supra note 42 at 667–68. See, e.g., Tribe, Laurence H., American Constitutional Law 994–96 (1978)Google Scholar; Gunther, Gerald, Constitutional Law: Cases and Materials 657–65 (9th ed. 1975).Google Scholar

136. 220 U.S. 61, 78 (1911). The statute at issue prohibited the pumping of mineral water and carbonic gas from a well drilled into rock when the purpose of the pumping was to collect and market the gas separately from the water. The defendant claimed that the classification was unlawful because it did not prohibit such pumping when not done through rock, nor did it prohibit pumping for other purposes. In discussing the equal protection challenge, the Court speculated that pumping through rock might have a more deleterious effect on the water supply than pumping from wells not penetrating rock. The Court also noted that the demand for carbonic gas and the small proportion of gas in the water suggested reasons why the legislature might reasonably have concluded that it ought to bar only pumping for the purpose of collecting the gas. Id. at 80–81. Apparently, however, these justifications had not been offered either in the statute or by counsel in presenting the case to the Court. Nevertheless, the Court upheld the statute because the challenger had the burden of demonstrating that the classification was arbitrary and had not done so.

137. 204 U.S. 36, 41 (1906) (upholding enhanced criminal penalties for embezzlement from “fee banks”). See also, e.g., Central Lumber Co. v. South Dakota, 226 U.S. 157, 160 (1912) (upholding statute regulating discriminatory sales only for businesses having multiple locations); Chesapeake & Ohio Ry. Co. v. Conley, 230 U.S. 513, 522 (1913) (upholding ratemaking statute classifying railroads by track length); Moudon v. New York, New Haven & Hartford R.R. Co., 223 U.S. 1, 53 (1911) (upholding statute abrogating fellow servant rule for employees of railroads).

138. 253 U.S. 412, 415 (1920). In Royster Guano, the Court invalidated a Virginia statute that taxed domestic corporations on all their income, whether earned inside or outside the State, but exempted domestic corporations that did no business in Virginia. Justices Brandeis and Holmes dissented, noting that such a law reasonably could distinguish between companies actually doing business in Virginia and those that incorporated in the State solely for the advantages offered by the state's laws but conducted no business there. Because the latter group had no substantial reason to maintain their ties with Virginia, taxing them on all their revenue would likely cause them to abandon the State and incorporate elsewhere, depriving the State of substantial revenue. Id. at 418–19 (Brandeis, J., dissenting).

139. See, e.g., Truax v. Corrigan, 257 U.S. 312, 337–39 (1921) (striking down statute exempting former employees from court's injunctive powers during labor strikes); Colgate v. Harvey, 296 U.S. 404, 424 (1935) (striking down statute creating tax exemption for interest paid on in-state but not on out-of-state loans); Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 39 (1928) (striking down statute taxing short term but not long term mortgages); Frost v. Corporation Comm'n of Okla., 278 U.S. 515, 524–25 (1929) (striking down statute regulating cotton gin industry).

140. 184 U.S. 540, 554 (1902).

141. Compare id. at 563–64 with id. at 570–71 (McKenna, J., dissenting).

142. 165 U.S. 150, 160–65 (1896). See also Atchison, Topeka & Sante Fe Ry. Co. v. Vosburg, 238 U.S. 56 (1915) (striking down Kansas statute that assessed attorneys' fees against railroad if shipper successfully litigated claim that railroad cars were not furnished as required, but denied such fees if railroad successfully sued shipper for not using cars placed at shipper's disposal). In some later cases, the Supreme Court upheld statutes making only railroads liable for attorneys' fees or assessing other penalties when it was satisfied that there were Special reasons to make railroads liable. See, e.g., Atchison, Topeka & Santa Fe R.R. Co. v. Matthews, 174 U.S. 96 (1899) (allowing attorneys' fees if railroad adjudged negligent in causing fire); Seaboard Airline v. Seegers, 207 U.S. 73 (1907) (allowing fifty-dollar penalty for delayed claims adjustment by common carriers because of Special public character of such companies).

143. See also Bethlehem Motors Corp. v. Flynt, 256 U.S. 421 (1921) (striking down tax that discriminated against out-of-state corporations); Kansas City Southern Ry. Co. v. Road Improvement Dist. No. 6, 256 U.S. 658 (1921) (striking down law assessing railroad more harshly than others for road improvements); Quaker City Cab Co. v. Pennsylvania, 277 U.S. 389 (1928) (invalidating gross receipts tax on corporations but not others operating taxicabs); Cotting v. Kansas City Stock Yards, 183 U.S. 79 (1901) (striking down statute regulating Kansas City stockyard prices).

144. Kay, supra note 42, at 722.

145. Id. at 668.

146. In addition to relying upon the Fourteenth Amendment to the United States Constitution, the Minnesota Supreme Court engaged in equal protection analysis pursuant to two provisions of the State constitution. One is the due process clause, contained in the Minnesota Constitution's Bili of Rights, at article I, § 7, with identical wording to the equivalent clause in the United States Constitution. The other is article IV, § 33 of the Minnesota Constitution, enacted by constitutional amendment in 1892 to prohibit “Special legislation.” It contained a specific list of subjects that could not be regulated by Special legislation, but also had a general provision that was the basis for the court's review of classifications: “In all cases when a general law can be made applicable, no Special law shall be enacted.” The amendment was added in response to the proliferation of Special and private legislation granting Special privileges to individual companies or local government entities. See infra text accompanying notes 172–77; 3 Folwell, supra note 52, at 124–25, 517–18. The court appears to have interpreted the State constitutional provisions and the federal equal protection clause as establishing identical standards.

147. State ex rel. Board of Courthouse & City Hall Comm'rs v. Cooley, 58 N.W. 150, 153 (Minn. 1893) (opinion upon reargument). Despite the language, however, the court in Cooley upheld the statute at issue, including a provision designed to extend additional bonding authority solely for the city of Minneapolis to complete and furnish its courthouse and city hall building. The position of the city was unique because it needed additional funds to complete a project authorized by a Special law before the 1891 amendment banning Special legislation took effect.

148. 41 N.W. 974 (Minn. 1889).

149. Urofsky, supra note 1, at 83–84; see, e.g., Brown v. Winona & St. Peter Ry. Co., 6 N.W. 484 (Minn. 1880).

150. Annual Report of the Railroad and Warehouse Commission of Minnesota for the Year Ending Nov. 30, 1887, Tables V and VI, at 215–16. The report indicates that 42 of the deaths and 241 of the injuries were the result of “their own misconduct or want of caution,” but no additional information is given. Between 1874 and 1887, the report indicates that 440 employees were killed and 1940 injured in railroad work, but that only 98 of the deaths and 488 of the injuries were attributable to causes beyond the particular employee's control. Id. at 216.

151. The court spent considerable time over the next twenty years attempting to draw lines between those covered by the narrowed statute and those not included. See infra note 224. Just one year before Lavallee, the United States Supreme Court upheld Kansas and Iowa statutes similarly abrogating the fellow-servant rule for railroads. Missouri Pac. Ry. Co. v. Mackey, 127 U.S. 205 (1888); Minneapolis & St. Louis Ry. Co. v. Herrick, 127 U.S. 210 (1888). Although in the cases before the Supreme Court the injured employees were engaged in hazardous operations for the railroads, the Court did not indicate that its approval of the statute was limited to such circumstances.

152. 65 N.W. 652 (Minn. 1896). The railroads were granted the right to exercise the power of eminent domain to take property for railroad purposes, see supra note 58 and accompanying text, but they had to pay compensation to the landowner. The statute addressed situations in which the railroad claimed, erroneously, that it already owned the land in question and so refused to pay compensation to the landowner.

153. See supra notes 142–43 and accompanying text.

154. 65 N.W. at 653. In some of its cases, the United States Supreme Court acknowledged that such fee statutes were permissible if there was a reason to place railroads in a class by themselves, see supra note 142, but in Ellis the high court showed itself more reluctant than the Minnesota Supreme Court to defer to legislative judgment about that reason.

155. Id. at 654.

156. Johnson v. Chicago, Milwaukee & St. Paul Ry. Co., 12 N.W. 576 (Minn. 1882).

157. Riskin v. Great Northern Ry. Co., 147 N.W. 960 (Minn. 1914). A similar statute was upheld in Seaboard Airline Ry. Co. v. Seegers, 207 U.S. 73 (1907).

158. State v. Smith, 59 N.W. 545 (Minn. 1894). The defendant, fined for sending out a car without the required enclosure, claimed that the law was unconstitutional because it covered cars propelled by cable, steam, or electricity, but not carriages or wagons, or cars drawn by mules or horses. The court found the classification not arbitrary because the other kinds of cars do not operate at such speed that the exposure of the driver would create a safety Problem.

159. State ex rel. Young v. Standard Oil Co., 126 N.W. 527 (Minn. 1910). The court found there was sufficient reason for the legislature to single out the petroleum industry in view of the actions taken by members of the industry to drive out competition.

160. State v. Bridgeman & Russell Co., 134 N.W. 496 (Minn. 1912).

161. State v. Chicago, Minneapolis & St. Paul Ry. Co., 130 N.W. 545 (Minn. 1911).

162. State ex rel. Hoffman v. Justus, 98 N.W. 325 (Minn. 1904)

163. State v. Sherod, 83 N.W. 417 (Minn. 1900).

164. State ex rel. Beek v. Wagener, 80 N.W. 633 (Minn. 1899).

165. State v. Elliott, 160 N.W. 204 (Minn. 1916).

166. In addition to the Special legislation discussed infra at notes 167–70, tne court invalidated a law declaring it to be a nuisance to emit dense smoke in the city of St. Paul because it excepted from its provisions manufacturing establishments—but no other businesses—that use the entire product of combustion in, or within three hundred feet of, the building in which it is generated. State ex rel. McCue v. Sheriff of Ramsey County, 51 N.W. 112 (Minn. 1892). In 1897, and again in 1909, the court invalidated State laws attempting to regulate peddlers and hawkers because the statutes distinguished, without apparent reason, among different kinds of peddlers. In State ex rel. Luria v. Wagener, 72 N.W. 67 (Minn. 1897), the statute exempted from licensing requirements peddlers acting as agents for manufacturers. The court concluded that peddlers acting on their own and peddlers acting for others were as likely to engage in abusive sales tactics, so there was no reason to distinguish between them in the statute. In State ex rel. Mudeking v. Parr, 123 N.W. 408 (Minn. 1909), a statute, amended partly in response to the Wagener decision, distinguished between peddlers, itinerant merchants, and permanent merchants. The court concluded that the statute unlawfully exempted permanent merchants doing business in their home counties and those selling articles manufactured by them.

In one additional case, the court construed a statute to avoid constitutional problems. In State ex rel. Graham v. McMahon, 68 N.W. 77 (Minn. 1896), the court reviewed a statute providing for State inspection of boilers and licensing of their operators. The court interpreted a statutory exemption from inspection as excepting from the licensing requirement railroad locomotive engineers and as excluding from the inspection requirement locomotive boilers and any boiler inspected by an insurance company in the business of insuring boilers. As so construed, the law was constitutional, because railroad engines are constantly being inspected, railroad engineers are discharged quickly if not competent, and insurance companies in the business of insuring boilers would certify a boiler only if satisfied it was in good operating order. Thus, there would be reason to exclude all these from State licensing and inspection. If construed to exempt all engineers and exclude boilers certified by any insurance company, the court said the law would be unconstitutional, because there would be no justification for making those exceptions.

167. In addition to the case discussed in text, see Duluth Banking Co. v. Koon, 84 N.W. 335 (Minn. 1900) (striking down statute applicable only to counties in which delinquent taxes exceeded the sum of thirty mills on the dollar of the assessed real estate valuation for the year 1896); Thomas v. City of St. Cloud, 97 N.W. 125 (Minn. 1903) (striking down a statute applicable only to cities of ten thousand inhabitants or less that, having owned and sold a waterworks system, have reserved the right to repurchase it); State ex rel. Douglas v. Ritt, 79 N.W. 535 (Minn. 1899) (striking down statute authorizing the position of county assessor, but only in counties with populations between 100,000 and 185,000; “[t]hat it was intended to apply only to Ramsey County would not be clearer if the act had in express terms so stated”).

168. Hetland v. Board of County Comm'rs of Norman County, 95 N.W. 305 (Minn. 1903). Compare State ex rel. Board of Courthouse & City Hall Comm'rs v. Cooley, 58 N.W. 150, 154 (Minn. 1893) (opinion upon reargument) (court upheld statute aimed at providing additional bonding authority for a single named city because that community was in unique circumstances).

169. See, e.g., Murray v. Board of County Comm'rs of Ramsey County, 84 N.W. 103 (Minn. 1900) (striking down statute providing for treatment of inebriates at county expense, applicable only in counties over lifty thousand in population); State ex rel. Chapel v. Justus, 97 N.W. 124 (Minn. 1903) (striking down statute regulating plumbers in cities over ten thousand with systems of sewers or waterworks).

170. Murray, at 362; Chapel, at 476.

171. See, e.g., State ex rel. Beek v. Wagener, 80 N.W. 633 (Minn. 1899) (upholding licensing for those selling agricultural products on commission); State v. Sherod, 83 N.W 417 (Minn. 1900) (upholding labeling requirement for makers and sellers of baking powder).

172. See generally 3 Folwell, supra note 52 at 124–25, 516–618; Anderson, supra note 59, at 169–70.

173. As one chronicler of the history of the Minnesota Constitution noted, judging by the number of Special corporate charters, “[t]he [territorial] legislature seems to have had no more important function than that of granting Special corporate privileges.” Anderson, supra note 59, at 126. The limitation on such charters was the first question debated in the Democratic constitutional convention. Id. at 126 n.31.

Minnesota was not alone in this concern. As a result of problems with the use of Special legislation, nearly every State formed before the Civil War included prohibitions against the use of Special legislation in their constitutions. Benedict, Michael Les, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 Law & Hist. Rev. 293, 321 (1986).CrossRef Google Scholar

174. See Green v. Knife Falls Boom Corp., 27 N.W. 924 (Minn. 1886), in which the court confirmed the legislative power to continue its former practices by amending charters. In his opinion for the court, Justice Vanderburgh first declared his own belief that the legislature's practice was unconstitutional. But, he said, “the majority of the court… do not agree….” They were reluctant to interfere with the custom of tolerating such actions “for the reason that the extensive and varied legislation affecting corporate charters, so long continued, has come to involve very large public and private interests.” Id. at 927–28.

175. 3 Folwell, supra note 52, at 124 (quoting Governor Pillsbury's annual message to the legislature of 1881).

176. Id. In 1891, for example, there were 507 Special laws covering 1138 pages, while there were only 173 general laws covering 462 pages.

177. Minn. Const. art. IV, §33: “In all cases when a general law can be made applicable, no Special law shall be enacted….” The provision also forbade the use of Special laws for seventeen enumerated and precisely defined purposes (e.g., “Changing the names of persons, places, lakes or rivers”). Finally, the amended section stated that “whether a general law could have been applicable in any case, is hereby declared a judicial question, and as such shall be judicially determined without regard to any legislative assertion on that subject.” This clause might have been construed as man-dating the court's close scrutiny of classification questions, but the court never referred to this phrase in any of its cases.

178. See Kumm, Harold F., The Constitution of Minnesota Annotated 24, 102 (1924).Google Scholar

179. State v. Donaldson, 42 N. W. 781 (Minn. 1889). In Donaldson, the court construed a statute that regulated sale of medicines. Under one possible interpretation, the law would have prohibited anyone other than a licensed pharmacist from selling even prepackaged patent medicines. Because of the possibility that laws purporting to be sanitary legislation actually were attempts to grant Special privileges, the court said, “it may be an important question whether the judiciary are concluded by the mask, or whether they may tear it aside in order to ascertain who is in it.” Id. at 783. The court did not answer that question, however, because it found that there could be no conceivable legislative purpose in restricting the sale of patent medicines, so it construed the statute to avoid that result.

180. Other cases in which the court suggested that a statute might mask a grant of Special privileges include State v. Chicago, Milwaukee & St. Paul Ry. Co., 71 N.W. 400 (Minn. 1897) and Johnson v. Ervin, 285 N.W. 77 (Minn. 1939).

181. The single exception was State ex rel. Greenberg v. Erickson, 198 N.W. 1000 (Minn. 1924), invalidating a statute that required a license for hunting, trapping, or fishing but exempted persons under twenty-one years of age. The court concluded that this arbitrarily granted a Special benefit “to the considerable number of minors, simply because they are minors, who compete in hunting and trapping with adults.” The exemption of minors was reenacted the following year, see 1925 Minn. Laws ch. 380, § 5522, and thereafter was not challenged.

182. 172 N.W. 765 (Minn. 1919).

183. Id. at 770.

184. Id. at 768–69.

185. Id. at 770. In the intervening years, the United States Supreme Court had decided a similar case, ruling that Indiana's Employer's Liability Act was constitutional as applied to railroad workers not directly engaged in the operation of the railroad. Louisville & Nashville R.R. Co. v. Melton, 218 U.S. 36 (1910). Because the employee in Melton had been engaged in work more dosely associated with the hazards of railroads than was the employee in Seamer, the Minnesota court did not find its result compelled by the result in Melton. Seamer, at 769.

186. Only in its passage of statutes limited to communities of particular size was the legislature repeatedly stymied. When population was an understandable dividing line, however, the court let statutes stand. See, e.g., State ex rel. Douglas v. Westfall, 89 N.W. 175 (Minn. 1902) (applying Torrens system of title registration to counties with population exceeding 75,000); State v. Ames, 100 N.W. 889 (Minn. 1904) (specifying method of selecting grand and petit jurors in counties with population exceeding 200,000).

187. 1889 Minn. Gen. Laws ch. 217. The New York form was apparently “a common and well known form of insurance contract,” much simpler than prior forms and already adopted in North Dakota, Wisconsin, and Pennsylvania. Brief for Appellant on Rehearing at 3, Anderson v. Manchester Fire Assurance Co., 59 Minn. 182 (1894).

188. 63 N.W. 241, 242 (Minn. 1895). Although the court invalidated a piece of regulátory legislation in Anderson, the court's action was not favorable to insurance industry interests. The standard form policy challenged in Anderson provided that the existence of alternate insurance would void a second insurance contract. Another clause prohibited the insurance company from altering any of tne standard terms, so an agent could not agree to have two policies in effect. As adopted in New York, the “no alteration” clause apparently was intended to protect insurance companies from the acts of their own agents, not to protect consumers. Brief for Appellant at 11, Anderson. By invalidating the standard form, the Minnesota court ensured that companies whose agents made promises to customers would be bound by those promises. In an earlier case, the court had ruled that no written clause in an insurance contract could prevent agents from negotiating additional terms; in Anderson, the court prevented that ruling from being circumvented by use of a nonalterable standard form policy.

189. 1887 Minn. Gen. Laws ch. 10.

190. The provisions of the Interstate Commerce Act were ambiguous regarding whether the Interstate Commerce Commission had authority to set rates. In Cincinnati, New Orleans & Texas Pacific Ry. Co. v. ICC, 162 U.S. 184 (1896), the United States Supreme Court decided that the Act did not grant such authority.

191. 1887 Minn. Gen. Laws ch. 10, §§ 2(a), 8(e)–(g).

192. 37 N.W. 782 (Minn. 1888), rev'd, 134 U.S. 418 (1890).

193. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U.S. 418, 456–58 (1890). The United States Supreme Court decision in this case signalled a shift in direction for the Court's due process jurisprudence. See supra notes 14–15 and accompanying text.

194. See Steenerson v. Great Northern Ry. Co., 72 N.W. 713 (Minn. 1897). The Minnesota court interpreted the amended statute as permitting the Commission the greatest degree of discretion, limiting the court to a determination whether the Commission's rates were confiscatory. See infra notes 208–9 and accompanying text.

195. In 1899, for example, the court approved a statute delegating to the Railroad and Warehouse Commission responsibility to fix the amount of bonds required from agricultural commission merchants in order to be licensed, though no express standards were provided. State ex rel. Beek v. Wagener, 80 N.W. 633 (Minn. 1899). Some guidance might have been gleaned from the information the merchants were expected to file with the Commission, including the amount of business to be conducted, but the court did not rely on those provisions. It commented only that “[i]t is necessary to lodge discretion somewhere.” Id. at 637.

Later, the court upheld a statute that gave the Commission discretion to determine whether carriers should be required to adopt a common rate to nearby stations. St. Paul Ass'n of Commerce v. Chicago B. & Q. R.R. Co., 158 N.W. 982 (Minn. 1916). If freight rates were exclusively based on distance, then shippers to adjacent communities or commercial centers, such as Minneapolis and St. Paul, would pay a lower rate to the station that was closer to the origination point. Businesses and individuals in the community with the higher shipping rate would be disadvantaged by the differential shipping rate. To avoid such discrimination, the commission was empowered to mandate the adoption of “common rate points”; thus, for example, the commission could require shippers to Minneapolis and St. Paul to be charged identical rates despite the modest difference in distance. Although the section granting authority to the Commission specified only that “the commission may unite two or more stations or commercial centers into a common rate point,” providing no standards to be applied, the court read the section in the context of the entire regulatory scheme mandating “just and reasonable” rates.

Finally, in 1920, the court approved a law creating a commission empowered to set “minimum wages sufficient for living wages for women and minors,” although the law did not require the commission to make formal recitals or findings when it took action. G.O. Miller Tel. Co. v. Minimum Wage Comm'n, 177 N.W. 341 (Minn. 1920).

196. 1887 Minn. Gen. Laws ch. 265.

197. Rates were set based upon the value of railroad property. Because of the difficulties of valuing the roads themselves, such valuation was often based on the capitalization of the company. Once the railroad expanded the capitalization, it could use those figures to support a claim for higher passenger and freight rates. See State v. Great Northern Ry. Co., 100 Minn. 445, 461–62, 467 (argument of Attorney general Young for the State).

198. 111 N.W. 289 (Minn. 1907). Even before the Minnesota Supreme Court issued its opinion, the Minnesota Attorney general drafted a bili designed to overcome the asserted constitutional difficulties by providing definite regulations to govern the Commission's supervision of stock issuance. Minneapolis Journal, March 28, 1907, at 1, col. 6. The House of Representatives expressed concern about the constitutionality of the Attorney General's proposal, however, and it was defeated by a vote of 47 to 57. Journal of the House, April 11, 1907.

When the court struck down the delegation in Great Northern Ry. Co., it also may have been troubled by the fact that, when Great Northern initiated the first of six previous increases in capital stock, the Commission had solicited and received an opinion from the Minnesota Attorney general that Commission approval was not needed. See Great Northern Ry. Co., 100 Minn. at 448 (statement of the case describing defendant's Answer).

199. The Minnesota Supreme Court was somewhat more likely to invalidate a delegation from the legislature to the courts. In State ex rel. Hahn v. Young, 9 N.W. 737 (Minn. 1881), for example, the court struck down a statute that attempted to settle the long controversy over the payment of State railroad bonds, see supra note 59, in part because the statute unlawfully delegated to judges the power to determine which of two statutory sections would take effect. In State v. Simons, 21 N.W. 750 (Minn. 1884), the court declared unlawful a statute that gave to a court the responsibility to determine whether the interests of the inhabitants of a village would be promoted by incorporation and to determine the boundaries of the village “as justice may require.” And in Steenerson v. Great Northern Ry. Co., 72 N.W. 713 (Minn. 1897), the court suggested it would have declared unconstitutional a statute permitting the courts to review rate determinations of the Railroad and Warehouse Commission if the statute allowed the court to decide rates de novo.

These cases may represent a kind of rigidity about governmental structure, later relaxed as the court acknowledged the realities of legislative decisionmaking in a more complex society. In State ex rel. Jonason v. Crosby, 99 N.W. 636 (Minn. 1904), for example, the court upheld a delegation to judges of the power to determine whether the public interest supported building drainage ditches across county lines. The court noted “the marked tendency of legislation in recent years, not only in this State, but in other states,… to break away from the theory of three separate and independent departments of government, by imposing upon other departmente, duties and powers of a legislative character, which the courts have been inclined to sustain….” Id. at 637.

200. Minneapolis Journal, March 28, 1907, at 1, col. 6.

201. Cincinnati, New Orleans & Texas Pac. Ry. Co. v. ICC, 162 U.S. 184 (1896).

202. ICC v. Alabama Midland Ry. Co., 168 U.S. 144, 175 (1897).

203. Id. at 176 (Harlan, J., dissenting).

204. United States v. E.C. Knight, 156 U.S. 12 (1895).

205. As described above, see supra notes 190–94 and accompanying text, the statute authorizing the Commission to set rates originally contained no provision for judicial review. After that aspect was rejected by the United States Supreme Court, the Minnesota legislature amended the law to provide for an appeal to the courts.

206. 1891 Minn. Gen. Laws ch. 106, § 3.

207. 72 N.W. 713 (Minn. 1897).

208. Id. at 716. On the merits of the complaint, the Minnesota court found that the railroad had not met its burden of demonstrating that the rates were confiscatory. Id. at 727–29. The federal courts apparently were a friendlier forum for the railroads, because when the railroads challenged the Commission's 1907 rate reductions, they did so in federal court. The state's attorney laid “[m]uch stress on the ignoring of the State courts by the railroads…. He regarded it as an insult to those tribunals of the states….” St. Paul Dispatch, September 11, 1907, at 1, col. 7. The railroads had some success in the federal district court, which enjoined enforcement of commodity rates set by the State legislature. Perkins v. Northern Pac. Ry. Co., 155 F. 445 (D. Minn. 1907). When Minnesota's attorney general, Edward T. Young, refused to comply, he was cited for contempt, and his habeas corpus challenge to the contempt conviction, based on immunity claims under the Eleventh Amendment, was rejected by the United States Supreme Court in the famous case of Ex parte Young, 209 U.S. 123 (1908). On remand, the federal court struck down the Railroad Commission's rates in a broad ruling barring states from establishing intrastate rates that indirectly burdened interstate commerce. Shepard v. Northern Pac. Ry. Co., 184 F. 765 (D. Minn. 1911). When the case returned to the United States Supreme Court, the Justices narrowed the district court's holding, concluding that states could regulate intrastate rail traffic until Congress preempted with its own legislation, but paved the way for subsequent federal control over railroads. The Minnesota Rate Cases, 230 U.S. 352 (1913). See Kolko, Gabriel, Railroads and Regulation, 1877–1916, at 217 (1965).CrossRef Google Scholar

209. For a discussion of other cases reviewing delegation to the courts, see supra note 199. In an earlier appeal from the Commission proceedings in Steenerson, the Commission's procedures had been challenged because they permitted intervention in the hearings only by the particular railroads whose rates were being considered, and not by competing railroads that had a significant but indirect interest in the results of the rate hearing. Again supporting the agency, the Minnesota Supreme Court found the Commission had discretion to conduct its hearings in this fashion, though noting it would be wise for the Commission, and any reviewing court, to consider the concerns of the competing roads. Steenerson v. Great Northern Ry. Co., 62 N.W. 826 (Minn. 1895).

210. See 1913 Minn. Gen. Laws ch. 547, § 2 (“The commission may … investigate the wages paid to women and minors in any occupation in the State.”); id., § 4 (“The commission shall … hold public hearings at which … interested persons may appear and give testimony as to … pertinent conditions of the occupation or industry.”); id., § 5 (“If after investigation of any occupation the commission is of opinion that the wages paid to one-sixth or more of the women or minors employed therein are less than living wages, the commission shall forthwith proceed to establish legal minimum rates of wages for said occupation….”).

211. G.O. Miller Tel. Co. v. Minimum Wage Comm'n, 177 N.W. 341 (Minn. 1920). The Commission told the court it believed that more than one-sixth of the women and one-sixth of the children employed “in each and every occupation” in the State were being paid less than living wages, but it made no such determination in its own proceedings.

212. In addition, the employers challenged the order because it set a minimum wage computed on the basis of a forty-eight-hour week with a different per-hour minimum wage to be paid thereafter. The companies resisting the Commission order alleged that this amounted to setting a maximum work week, something the Commission was not empowered to do. Again, the court supported the Commission. Id. at 344.

213. State ex rel. Chambers v. District Court of Hennepin County, 166 N.W. 185, 187 (Minn. 1918).

214. In Emmons v. Minneapolis & St. Louis Ry. Co., 29 N.W. 202 (Minn. 1886), the court considered the nature of the injury compensated by the statute. It ruled that a farmer could recover for generalized injury to his farm from the failure to fence because his animals had been placed in danger and he had been forced to expend extra effort watching the cattle. It was not required that any individual animal be killed or injured to establish liability. In Watier v. Chicago, Minneapolis & St. Paul Ry. Co., 16 N.W. 537 (Minn. 1883), the trial court dismissed the suit because the injured animal was at large in violation of a Special law that forbade leaving an animal loose in that particular community. The supreme court reversed, concluding that the legislators wanted the railroad liability law to be uniform in application. See also Hohl v. Chicago, Milwaukee & St. Paul Ry. Co., 63 N.W. 742 (Minn. 1895) (railroad must exercise due care even though horse was roaming free in violation of town ordinance, as long as owner not negligent or willful).

215. Starr v. Great Northern Ry. Co., 69 N.W. 632 (Minn. 1896).

216. 121 N.W. 395 (Minn. 1909).

217. The combination at issue in the case was the Duluth Board of Trade, which provided facilities for the Duluth grain market. Its rules included a provision setting an appropriate commission to be paid to brokers and a penalty for any of its members who charged less.

218. See also George J. Grant Constr. Co. v. St. Paul Bldg. Trades Council, 161 N.W. 520 (Minn. 1917) (union members may lawfully picket and agree to refuse to do business with company that runs an “open shop”).

219. 208 U.S. 274 (1908).

220. 186 N.W. 781 (Minn. 1922). The trial court denied a temporary injunction but granted a permanent one, noting that, although prior Minnesota case law would have approved the union's actions, the United States Supreme Court mandated a different result. Record on Appeal at 204–5 (Memorandum Opinion), Campbell v. Motion Picture Mach. Operators' Union, 151 Minn. 220 (1922).

221. Campbell, 186 N.W. at 784.

222. There are some indications that the Minnesota court might have reached the same conclusion without the impetus of the Loewe decision, however. The majority in Campbell spoke of strikes, lockouts, and boycotts as “a serious menace to the general welfare,” id., and seemed content to conform to the United States Supreme Court view as a means of controlling labor strife. Moreover, consistency between the State and federal statutes was not required. The highest courts of California, Iowa, Indiana, and Idaho concluded that, even after Loewe, their own State antitrust statutes did not apply to labor organizing. See Overland Pub. Co. v. Union Lithograph Co., 207 P. 412 (Cal. 1922); Robison v. Hotel & Restaurant Employees Local No. 782, 207 P. 132 (Idaho 1922); Shaughnessey v. Jordan, 111 N.E. 622 (Ind. 1916); Rohlf v. Kasemeier, 118 N.W. 276 (Iowa 1908). In construing Minnesota's statute broadly, the majority may have been reacting to recent major labor conflicts in the State. In 1916, there was a widespread strike at the iron mines in northern Minnesota, followed in 1917 by a strike by workers at the Twin City Rapid Transit Company. Both of these actions were part of substantial ongoing conflict between management and organized labor. See, e.g., Rachleff, Peter, Turning Points in the Labor Movement: Three Key Conflicts, in Minnesota in a Century of Change 195, 197–204 (Clark, Clifford E. ed., 1989)Google Scholar; John E. Haynes, Reformers, Radicals, Conservatives, in id. at 361, 371–72; Alanen, supra note 106.

On the other hand, the decision in Campbell was made by a bare majority of three Justices, and two members of the court dissented vigorously. With the exception of a relatively minor case, Anderson v. Manchester Fire Assurance Co., 63 N.W. 241 (Minn. 1895), every other decision discussed in the body of this essay was made unanimously. Moreover, the Campbell opinion was written for the court not by any of the justices, but by one of two “commissioners” appointed by the court to assist in handling the court's business, leading a Minneapolis labor newspaper to comment that “[n]one of the judges voting in favor of [the employer] had the nerve to write the opinion.” Minneapolis Labor Review, Feb. 3, 1922, at 1, col. 1. Certainly Loewe appeared to play a significant part in leading the Minnesota court to reject the clear implications of Duluth Board of Trade.

223. See supra notes 148–51 and accompanying text. The court later reversed its position, upholding abrogation of the fellow-servant rule for all railroad employees. See supra notes 182–84 and accompanying text.

224. Compare, e.g., Nichols v. Chicago, Milwaukee & St. Paul Ry. Co., 62 N.W. 386 (Minn. 1895) (employee injured while stretching a cable used to unload gravel from fiat cars during repair of railroad; statute applies) and Smith v. St. Paul & Duluth R.R. Co., 46 N.W. 149 (Minn. 1890) (employee injured while removing handcar from tracks; statute applies) and Steffenson v. Chicago, Milwaukee & St. Paul Ry. Co., 47 N.W. 1068 (Minn. 1891) (employee injured while riding to or from work on handcar; statute applies) with Jemming v. Great Northern Ry. Co., 104 N.W. 1079 (Minn. 1905) (employee injured while working as pitman with steam shovel crew helping to Iay track; statute does not apply) and Johnson v. St. Paul & Duluth Ry. Co., 45 N.W. 156 (Minn. 1890) (employee injured while repairing railroad bridge; statute does not apply) and Pearson v. Chicago, Milwaukee & St. Paul Ry. Co., 49 N.W. 302 (Minn. 1891) (employee injured while loading railroad iron from the ground to a flatcar; statute does not apply).

225. The court expressly acknowledged this approach when it stated that “as the general language of the act has been thus limited for the sole purpose of sustaining its validity, we think it ought not to be limited further than is necessary for that purpose.” Blomquist v. Great Northern Ry. Co., 67 N.W. 804, 805 (Minn. 1896).

226. Mikkelson v. Truesdale, 65 N.W. 260 (Minn. 1895).

227. Id. at 261.

228. Schus v. Powers-Simpson Co., 89 N.W. 68 (Minn. 1902). See also Kline v. Minnesota Iron Co., 100 N.W. 681 (Minn. 1904) (statute applies to mining company operating railroad to move ore; fact that statute excludes coverage for employees engaged in construction of roads not yet open to public use does not mean that the statute as a whole does not apply to companies operating railroads for private use), aff'd, 199 U.S. 593 (1905).

229. In Fitzgerald v. St. Paul, Minneapolis & Manitoba Ry. Co., 13 N.W. 168 (Minn. 1882), for example, the court construed a statute making railroads liable “for all damages sustained by any person” in consequence of the failure to maintain fences and cattle-guards. It concluded that railroads were liable for injury to cattle or other animals that wandered onto the unprotected track but not for injury to children who did so. This was based in part on the argument that the kind of wire fence that satisfied the fencing requirement would not prevent children from approaching the tracks. Fifteen years later, the court overruled Fitzgerald in an opinion—by the author of Fitzgerald—acknowledging the unduly narrow construction given the statute in the earlier decision. See Rosse v. St. Paul & Duluth Ry. Co., 71 N.W. 20 (Minn. 1897). For other examples of statutory interpretations narrowing regulatory coverage, see State v. Minneapolis Milk Co., 144 N.W. 417 (Minn. 1913) (construing antitrust law to provide forfeiture of corporate franchise but not criminal penalty for corporations acting unlawfully); State ex rel. Winston-Dear Co. v. District Court of St. Louis County, 176 N.W. 749 (Minn. 1920) (applying State workers' compensation law, rather than more favorable federal Railway Employers' Liability Act, to railroad workers not employed by common carrier).

230. See Kay, supra note 42, at 712–13; Hovenkamp, supra note 46, at 182.

231. Kay, supra note 42, at 713 & n.164; see also Hovenkamp, supra note 46, at 182–204 (the substantive due process jurisprudence of the Supreme Court was guided by the Justices' belief in prevailing theories of classical American political economists).

232. Chrislock, supra note 63, at 9–10; Naftalin, Arthur, The Tradition of Protest and the Roots of the Farmer-Labor Party, 35 Minn. Hist. 53, 59 (1956).Google Scholar

233. Chrislock, supra note 63, at 12–22.

234. Id. at 182.

235. Thomas Canty, for example, was first elected to the district court bench, by a large majority, after he successfully represented striking employees of a street railway company. History of Minneapolis 447 (Daniel Shutter ed. 1923). Later he was selected by the Democratic Party and the People's Party to run for a seat on the supreme court. 1 Stevens, Hiram, History of the Bench and Bar of Minnesota 132 (1904).Google Scholar Robert Heiberg determined that approximately half the Justices during this time period reached the court by election. Heiberg, Robert A., Social Backgrounds of the Minnesota Supreme Court Justices: 1858–1968, 53 Minn. L. Rev. 901, 930 (1969).Google Scholar

236. Those who served in the State legislature and their years of service on the court include F.R.E. Cornell (1875–1881), Daniel Buck (1894–1899), Loren Collins (1887–1904), William Mitchell (1881–1900), and Charles Lewis (1900–1912). 1 Stevens, supra note 235, at 66, 127, 130, 135; History of Minneapolis, supra note 235, at 451.

Deference to the legislature does not necessarily follow service in it, of course. A judge who participated in the legislative process might view legislative judgments as too political to be accorded deference. Justice Stephen J. Field, for example, who did much to expand United States Supreme Court application of substantive due process and liberty of contract to strike down State and federal legislation, also served in a State legislature. Barbar, James, The Honorable Eighty-Eight 48 (1957).Google Scholar

237. One commentator has noted that, while most of the Minnesota and United States Supreme Court Justices between 1891 and 1930 were from the upper Social classes, in Minnesota the upper classes included farming families from midwestern rural areas or small towns. Heiberg, supra note 235, at 930. Among those raised on farms were James Gilfillan (Chief Justice, 1875–1894), Charles Start (Chief Justice, 1895–1913), Charles Vanderburgh (1882–1894), Thomas Canty (1894–1899), Daniel Buck (1894–1899), Loren Collins (1887–1904), William Mitchell (1881–1900), Charles Lewis (1900–1912), Charles Elliott (1905–1909), Andrew Holt (1912–1942), and Oscar Hallam (1913–1923). 1 Stevens, supra note 235, at 65, 123, 127, 129, 134 (1904); 2 Stevens, supra note 235, at 44; History of Minneapolis, supra note 235, at 431, 446; Biographical Sketches of Justices of the Minnesota Supreme Court 16 (West 1985); Holt Memorial, Henn. Co. Bar Ass'n Papers, Minnesota Historical Society; St. Paul Dispatch, Dec. 17, 1894, at 2, col. 2.

238. Minnesota Union Advocate, Sept. 27, 1918, at 4, col. 2 (quoting the words of Samuel Gompers).

239. Anderson v. Manchester Fire Assurance. Co., 63 N.W. 241 (Minn. 1895); see supra notes 187–88 and accompanying text.

240. State ex rel. Railroad & Warehouse Comm'n v. Chicago, Milwaukee & St. Paul Ry. Co., 37 N.W. 782 (Minn. 1888), rev'd, 134 U.S. 418 (1890); see supra notes 192–94 and accompanying text.

241. Lavallee v. St. Paul, Minneapolis & Manitoba Ry. Co., 41 N.W. 974 (Mjnn. 1889); see supra notes 148–51 and accompanying text.

242. Cameron v. Chicago, Milwaukee & St. Paul Ry. Co., 65 N.W. 652 (Minn. 1896); see supra notes 152–55 and accompanying text.

243. Kanne v. Segerstrom Piano Mfg. Co., 137 N.W. 170 (Minn. 1912); see supra notes 131–32 and accompanying text.

244. State v. Fairmont Creamery, 163 N.W. 608 (Minn. 1926); see supra notes 98–103 and accompanying text.

245. See Anderson v. Manchester Fire Assur. Co., 63 N.W. 241 (Minn. 1895) (rejecting nonalterable standard form insurance contract; acceptance of standard form would have overruled prior holding that companies could not prevent agents from changing terms of contract); Lavallee v. St. Paul, Minneapolis & Manitoba Ry. Co., 41 N.W. 974 (Minn. 1889) (narrowly construing statute that would abrogate common law fellow-servant doctrine); see also supra notes 167, 169–70 (discussing cases repeatedly striking down statutes seeking to circumvent constitutional and judicial restrictions on Special legislation).

246. See discussion of Minnesota Wheat Growers Coop. Ass'n v. Radke at supra notes 124–29 and Anderson v. Manchester Fire Assurance Co. at supra notes 188–89.

247. See supra notes 23–26 and accompanying text.

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Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880–1925

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