Four California Railroad Lawyers in the Classical Era

Four California Railroad Lawyers in the Classical Era for Professor Robert W. Gordon History of American Law Spring 1994 Daniel W. Levy 39-09 Grant Stre Fair Lawn, NJ 07410 Tel: 201-796-8753 I. INTRODUCTION Then, faint and prolonged, across the levels of the ranch, he heard the engine whi~tling for Bonneville. Again and again, at rapid intervals in its flying course, it whistled for road crossings, for sharp curves, for trestles; ominous notes, hoarse, bellowing, ringing with the accents of menace and defiance; and abruptly Presley saw again, in his imagination, the galloping monster, the terror of steel and steam, with its single eye, c ean, red, shooting from horizon to horizon; but saw it now these mbol of a vast power, huge, terrible, flinging the echo of its t un er over all the reaches of the valley, leaving blood and destruction in its path; the leviathan, with tentacles of steel clutching into the soil, the soulless Force, the iron-hearted Power, the monster, the Colossus, the Octopus.l Frank Norris' 1901 novel recounts the story of relations between a group of squatters misled into believing that they would be sold land by the railroad for a low advertised price and the corporate directors. The settlers worked to make the land productive, and to locate sources of water. Eventually, the railroad ejected the squatters, but not before a showdown, and the death of five settlers and two federal marshals. The massacre at Mussel Slough in 1870 occurred at a moment w.h.en I popular antipathy towards railroads began to intensify.2 The incident is a~ a perfect example of a episode translated into a legal conflict that only inadequately captures the reality of the social conflict, and certainly contributes at most negligibly to its resolution. Norris' characterization of the railroad on three levels of abstraction als~) is ,/ appropriate and helpful as a description of the roles that railroad lawyers played in achieving the goals of their employer. On the first and most pragmatic level, the lFrank Norris, THE OCTOPUS: A STORY OF CALIFORNIA 51 (Penguin Books, 1986) (1901). 2For a general retelling of the story of Mussel Slough and an assessment of its literary representations, see generally David J. Bederman, The Imagery of Injustice at Mussel Slough: Railroad Land Grants, Corporation Law, and "Great Conglomerate West," W. LEG. HIST., Summer/Fall 1988, at 237. oncoming train is the railroad's whistle, an unseen voice, an indication of a aroused body of wealth, a warning of fury to be unleashed upon those who obstruct it. The lawyer in this sense is the mere agent of the corporation. He is the person who makes the appropriate noises at the correct times translating the desires of his masters into a legal language that achieves results. He operates on the most basic, mundane and managerial front, administering to the details of the life of the company, oiling its economic and legal machinery. It is here I want to consider the ways in which four quite interesting personalities contributed to the principal railroad goals: minimization of the impact of potentially damaging regulations (maximum fares, taxes rates, issuance of stocks and bonds, controls on corporate forms, etc.), low-cost land a~quisition, preferential govern.ment treatment, labor force stability, limited shareholder liability, and the maintenance of the Central Pacific's monopoly. By far, however, the most important goal of the Central Pacific, reorganized in 1884 as the Southern Pacific Railroad,3 was solving the fiscal, legal, and public relations crises that its enormous debt to the federal government would create. The goal in mind is to be able to describe the legal strategies that emerged over the corporation's early life, and to assess the importance of lawyers in it. What, I believe, this will require is a separation of the instances in which the legal results secured by lawyers in litigation matched the substantive ends of the corporation, from the instances in which the legal results that lawyers worked to achieve had /' very little to do with the ends desired by the corporation. Applying this distinction on the level of narrative, I want to ask how lawyers' work fit into story of the corporation, and more generally how lawyers were situated in the early development of California. 3Stuart Daggett, CHAPTERS ON THE HISTORY OF THE SOUTHERN PACIFIC 151-52 (1922). I will often refer to the Stanford's railroads as either the CPRR or the SPRR. Preliminary, the answer seems to be that Hall McAllister, Silas W. Sanderson, Creed Haymond, and Alfred A. Cohen, the gentlemen I have been investigating, were integrally wrapped up with the many of the social conflicts of the time period, .,/ 1850-1888, a number of which were engendered or exacerbated by the railroads. It may seem a truism to say that lawyers, as social actors, are implicated with social conflict. What I want to do in this essay is to describe the reasons why the proposition seems to apply more to these four lawyers than it might to elite corporate lawyers today. Por now, however, it is fair to introduce this essay simply by saying that, if the history of American law is a contest about how to set rights and entitlements, these four lawyers participated in that contest on a larger number of fronts than an elite corporate lawyer today would. Cohen, Haymond, McAllister, and Sanderson were involved in varying capacities in the tensions between capital and labor, between new immigrant arrivals from China and white workers who had emigrated from the East, between competing corporations often out to destroy or control one another, between corporations and a state struggling with their regulation, between individual citizens living in a boom-bust economy without well-established institutions to accommodate, for example, competing mining or riparian claims.4 Norris' second characterization of the railroad is suggested by his use of the phrases "galloping monster" and "cyclopean." The railroad here is a panoptic doer of the railroad's work that leaves nothing beyond its reach. As a lawyer, he may do the railroad's bidding in other fora available to him, not simply as a litigator, but rather as a legislator, as a judge, as a corporate advisor, or in some other capacity. This thought suggests another strand that I want to pursue: the career paths that 4Por a somewhat helpful study of the construction of legal doctrine and institutions in this context, see Gordon Morris Bakken, THE DEVELOPMENT OF LAW IN FRONTIER CALIFORNIA: CNIL LAW AND SOCIETY 1850-1890 (1985). Sanderson, Cohen, Haymond, and McAllister traced or created for themselves. The different responsibilities and roles that lawyers for the SPRR took upon themselves included: (1) the lawyer interested in substantive legal outcomes, mostly concerned with translating the corporation's desires into reality--either retained by the corporation or employed directly as in-house counsel; (2) the representative or spokesman who acts as the voice of the corporation before official bodies besides courts or, more interestingly, society generally; the man who "put things in a telling way before the people";5 (3) the well-placed agent or financial "mover" who puts the corporation in contact with sources of capital or helps arrange deals, specifically here, securing capital from Eastern or European financiers; (4) the lobbyist-lawyer, permanently involved with guaranteeing favorable legal treatment by the federal government in Washington.6 What I hope will emerge more clearly from sifting through the details of the activities and biographies are four distinct models of lawyering at a time when the California bar was being industrialized,7 at a time when national law schools began to be more prominent, at a time when law firms first began to be formed in larger numbers, at a time began to be organized, at a time when lawyer~~pecialize in greater number~jn California~ Those four models ',--- 5Robert W. Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920 in PROFESSIONS AND PROFESSIONAL IDEOLOGIES IN AMERICA 81 (Gerald Geison, ed., 1983). 6While I do not treat him as part of this biography, it is worth mentioning that the CPRR and SPRR since the late 1860's had retained permanent counsel in Washington. The activities of their DC lawyer-lobbyists, Richard Franchot and later an attorney Sherell, in particular the unaccounted for spending of large amount of cash, would become a source of controversy before the Pacific Railway Commission. Hearings Before the Pacific Railway Commission Testimony 24-25, 39 (1887) (statement of Collis P. Huntington, Vice-President, Southern Pacific Railroad). 7 See generally Gordon Morris Bakken, Industrialization and the Nineteenth Century California Bar in THE NEW HIGH PRIESTS (Gerald W. Gawalt, ed., 1986). 8Id. at 127, 143. are: the legal technocrat, the legal craftsman, the entrepreneurial lawyer, and the reform-minded lawyer. Looking at the growth of these coherent career paths historically may be able to suggest why it is that lawyers have achieved such prominence in the republic today, and why legal training is considered today to be general preparation for political office, diplomatic corps, civil service, corporate practice, administrative office, and a host of other sectors where it is not particularly obvious that lawyers would predominate. The last line of the Norris passage suggests a third level necessary for a coherent story of these four lawyers. The railroad here is a force without subjectivity or agency. The rampant destruction it engenders is more consequence than intended result. The force is neither objectively good nor bad; it is evil only if one is unlucky enough to not be on the train, compelled to confront what is left behind.

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