5.4.2. The Midwest, 1900-1925: Conserving the Land

Key cases:

State v. Ohio Oil Co. – Indiana, 1898 (49 N.E. 809); State ex rel. Owen v. Donald (Forestry Law Case) – Wisconsin, 1915 (151 N.W. 331); Perkins v. Board of County Commissioners of Cook County – Illinois, 1915 (111 N.E. 580)

  • The early Midwestern economy relied heavily on extraction of raw materials, particularly coal and gas in Illinois, Indiana and Ohio, and timber and minerals in Michigan, Wisconsin and Minnesota.  Lawmakers did not give any thought to conservation until the end of the 19th century, when  these resources became visibly depleted. 
  • Several Midwestern states enacted flood control and forest and mineral conservation laws during the Progressive era, but the laws encountered resistance from businessmen and lawmakers who, in the words of legal historian Willard Hurst, were “bred in the buoyant opportunism of 19th century action.”
  • In the Forestry Case, Wisconsin’s supreme court struck down a group of Progressive laws that created a state forest reserve in the state’s logged-out north woods and allocated funds to purchase land for the reserve.  The court viewed the fund as an unconstitutional internal improvements subsidy; Roujet Marshall, the court’s leading conservative, went further and questioned the state’s right to engage in conservation at all.  Marshall’s decision proved unpopular and cost him his seat on the court, and in 1927 Wisconsin amended its constitution to permit forestry conservation.  Ohio avoided Wisconsin’s problem by amending its constitution in 1912 to permit conservation measures:  this proved handy the next year when the legislature had to enact emergency relief laws following severe flooding in the Dayton area.
  • Other Midwestern courts had less trouble upholding conservation laws.  In Ohio Oil, the Indiana supreme court peremptorily upheld the state’s right to enact laws against flaring-off of natural gas in its central “gas belt,” and in Perkins, Illinois’s court upheld the state’s right to preserve the small slivers of remaining forest in the Chicago area for recreational uses.  The Illinois court noted with relief that unlike Wisconsin, its state constitution did not prohbit the legislature from promoting internal improvements, and the court had no difficulty holding that forest conservation was a public purpose.   

Aftermath of floods in Dayton, Ohio, 1913 (courtesy Library of Congress)

“One who recklessly, persistently and continuously wastes natural gas, and boldly declares his purpose to continue to do so …, ought not to complain of being branded as the enemy of mankind.”  -Justice James McCabe, in Ohio Oil

 “There must be some present benefit.  It is not sufficient that the forced contribution will be a boon to some future generation.  The state has no right to take the property of individuals presently and afford them no possible return, merely because the storehouse, being filled, will be opened sometime.” -Justice Roujet Marshall, in the Forestry Case