7.3.3 Southwest (1900-1930): Good Government and Railroad Regulation

Substantive due process:  regulating the railroads

The Water Closet Cases:  Missouri, Kansas & Texas Railway Co. v. State – Texas, 1907 (100 S.W. 766); Houston & Texas Central Railway Co. v. State – Texas, 1907 (103 S.W.449); Atchison, Topeka & Santa Fe Railway Co. v. Railroad Commission – California, 1916 (160 P. 828)

  • The Texas supreme court’s propensity to apply substantive due process came to the fore in an unexpectedly mundane context:  a 1905 law requiring railroads to provide water closets (restrooms) at all stations within a week of the law’s enactment, with a penalty of $100 per week for failure to comply.  In the Missouri, Kansas & Texas case the court struck down the law after concluding that the one-week period was unreasonable.  This provoked a rare open rebellion in the state’s appeals court, before whom related challenges were pending. 
  • In Houston & Texas Central, the appeals court exposed the major pitfall of substantive due process when it openly charged the supreme court with failure to investigate the facts.  The appeals court concluded that the state’s railroads could meet the deadline without difficulty.
  • California’s supreme court also put limits on how far railroad regulation could go.  In Santa Fe, it held that the state could require railroads to construct appropriate facilities and even connections with other roads, but it drew the line at requiring the Santa Fe to construct a new branch line which the railroad did not want, even though the California railroad commission had determined that the new line was in the public interest.   
“The supervision of service rendered by a railroad co is a proper matter for public regulation and control.  The question whether a railroad co shall extend its lines to points not theretofore reached by it, whether, in other words, it shall engage in a new and additional enterprise, is one of policy to be determined by its directors.  To compel a railroad co to apply its prop to the construction and operation of a line of railroad which it does not desire to construct or operate is to take its property.” – Justice _, in Santa Fe 

Substantive due process:  Progressivism, Texas-Style

Solon v. State – Texas, 1908 (114 S.W. 349); Watts v. State – Texas, 1911 (135 S.W. 585)

  • Most Southern states enacted only a modest set of Progressive-era reforms, partly because Southern Progressives believed that preserving the established racial order was paramount and were careful not to push reforms that might upset it. 
  • One of the Progressives’ pet reforms was enactment of direct primary laws in order to reduce the power party bosses were able to acquire through their control of party nominating conventions.  In 1905, Texas enacted a primary law known as the Terrell Law, which also included a clause prohibiting others from paying a voter’s poll tax.  Texas and other Southern states used poll taxes to reduce voting by blacks and poor whites, and in Solon and Watts the Texas appeals court addressed the question:  was the Terrell Law a genuine Progressive reform or simply another device to suppress votes? 
  • In both cases, a majority of the court focused on the reform aspects of the law and dismissed concerns about vote suppression, reasoning that the poll-tax-payment clause was really an anti-bribery measure and that anyone who could not find a way to pay his own poll tax did not deserve to vote.  Judge __ Davidson, who dissented in both cases, paid no attention to the racial implications of the poll tax but was adamant that the Terrell Law improperly discriminated against poor Texans.  
 File:Missouri Kansas Texas Katy Flyer 1911.JPG
"Katy Flyer," Missouri, Kansas & Texas Railroad (1911) - courtesy Wikimedia Commons

“It would not have been a violent 
assumption of fact to conclude that the Missouri, Kansas & Tex Railway Co, with all of its facilities for transportation … could within the seven days’ time have constructed and erected water-closets.  If we would exercise the privilege, as the Supreme Court has done, of entering into the domain of assumption, we would be within the facts in making the statement that that road, and others within this state ... could easily, without two or three days, build and construct and complete one of these closets.”  - Texas Appeals Judge _, in Houston & Texas Central



“To give this section of the Terrell election law the construction that that law seeks would prevent, or tend to prevent, the poorer citizenship of the country from voting, or qualifying themselves to vote, by reason of their poverty.  The construction of a law that would lead to such results certainly was never intended by the framers of the Constitution.” – Justice _ Davidson, in Solon


“If the citizenship of Texas believed that individuals who did not take enough interest in the welfare of their state to pay the small amount levied as a poll tax should be debarred from voting, and in their organic law so provide, is it not the duty of the Legis to see that that provision is respected, and not sit idly by and see it defeated by subterfuges and evasions?”  - Justice _, in Watts