Water

Each of my claims about managing the periphery, and the inescapable centrality of state government to that effort, can be illustrated by convention discussions of water rights. Water rights was an issue with enormous economic stakes and high salience that required difficult choices and the solution of complex puzzles. Discussion of water and irrigation also brought to the fore the resentment of the West toward corporations, and the region's wistful demands of the federal government. At the same time, water presented a particularly western problem. As one delegate remarked, “God does not sprinkle these plains, and so they are an absolutely barren waste, and without water can never be used.”Footnote ⁶⁸

Not a territory in the West had enough water when and where it was needed, and the region was without a well-developed legal framework for water rights. Yet there was great potential for the West's settlement and prosperity, if the region were properly irrigated. In a typically optimistic appraisal of the region's prospects, a delegate to Montana's convention argued the territory “was capable of supporting a population of ten million people if a proper system of irrigation can be had there … .”Footnote ⁶⁹

The shortfall between “barren waste” and prosperous settlement made water and irrigation important political issues. Delegates commonly expressed hostility to water and irrigation companies, both foreign and domestic. Farmers in Colorado were dissatisfied with private irrigation companies, supported state ownership of water companies, and endorsed demands for federal reclamation projects.Footnote ⁷⁰ In Montana, corporations did not have a good record for providing irrigation. When out-of-state companies invested in irrigation systems, they set extortionate rates for water. “The … law that provides that the county commissioners shall regulate the price of water has been practically abrogated by the promoters of this enterprise going to the farmers themselves and exacting from them contracts” at “exorbitant” prices.Footnote ⁷¹ As a result, farmers in Montana were unhappy with private irrigation companies, and pressed for federal assistance from the Populist Era until the turn of the century.Footnote ⁷² In Idaho, political agitation about irrigation was at the heart of Populist politics. Farmers' Alliances in Washington, Elmore, and Latah counties denounced plans to “contribute a billion dollars to improve the rivers that could be navigated only by turtles and catfish,” but failed “to appropriate a cent to irrigate arid land in … South Idaho.”Footnote ⁷³ In these three states, then, as well as California, there was broad mobilization around water issues before the conventions, and for decades after.

The management of water raised several issues. Convention delegates were called upon to create a legal framework for water rights and to make decisions about eminent domain and its delegation, the reach of beneficial or public use, and the regulation of corporations that constructed irrigation systems or sold water. The organizing principles of water management were not well established. Delegates at various conventions argued that in the Midwest and the East the common law of riparian rights provided adequate guidelines for the distribution of rights to water.Footnote ⁷⁴ Riparian rights awarded use (although not exclusive use) of water to those whose lands were adjacent to the natural waters of rivers, streams, and lakes; but the flow of water was not to be substantially diminished. Where water was plentiful, riparian doctrine served as a practical general guide. Instances of dispute were resolved in court, not with reference to legislation, but rather as matters of common law adjudicated by the presentation of facts and the exercise of the court's judgment. As exercises in common law, these decisions were guided by principle, custom, fact, and considerations of equity. At the conventions, farmers championed riparian rights.

A competing doctrine to riparian rights, the doctrine of “first appropriation” or “first in claim, first in right,” meant exactly what it said. First appropriation was a rule embraced in the early days of mining to protect the discoveries of prospectors. By the Gilded Age the day of the prospector was over, and companies, often incorporated elsewhere, were coming to dominate mining. Mining and smelting industries were ardent proponents of “first in claim.” Unlike riparian rights, rights of first appropriation were in principle unlimited. A mining company's claim near the headwaters of a river, for example, could deprive farmers downstream of water that ran through their property. Or water might be polluted with tailings and other detritus of mining, making it unsuitable for irrigating crops.

There were also community or pueblo rights, in some places legacies of Mexican settlement, reinforcing government's claim to water management. The details of convention deliberations should not obscure how fundamental the question of water rights—that is, property in water—was. At issue was not only to whom the water “belonged” but also, whether ownership or right meant use alone, or the right to pollute or destroy the source of water. At the California convention, James Hale described the central puzzle of designing rights to water: “There are two distinct phases of this question … . One is the security of the rights of those parties who make these appropriations [of water], and the other to secure the public against oppression from their use.”Footnote ⁷⁵ Henry Bromwell's recollection was that finding compromises, or resolving these issues, was tough. “The irrigation committee, wherever found,” he wrote, “is (to its members) a mild form of martyrdom.”Footnote ⁷⁶

Writing the West's first Gilded Age constitution, delegates in Colorado had to confront these difficulties concerning water rights immediately. The Committee on Irrigation, Agriculture, and Manufacture proposed a first section of the article on water innocently enough: “The water of every natural stream within the State of Colorado is hereby declared to be the property of the people of said State, and the same is dedicated to their use forever.” It was quickly objected that “the section interfered with the rights of individuals under the old doctrine of riparian rights,” to which another delegate responded “there was no such thing as riparian rights in Colorado.”Footnote ⁷⁷ The second section proposed that priority of appropriation should give priority of right. To priority of appropriation it was objected that although the principle may once have been drafted to protect “the poor man,” in the present the provision “would operate to enable rich corporations to appropriate all the water of the streams, to the serious injury and grievous oppression of the poor.” Surely all could agree that “when a man took up land in a valley adjoining the valley of a stream, he ought to have the right to secure water to irrigate it.”Footnote ⁷⁸ To repair the potential deficit to agriculture, two provisions were required. First, priority of appropriation was modified by a hierarchy of uses, so that when water was insufficient for all purposes, domestic use would have first priority, then agriculture, and then manufacture. Of course disputes about water rights were going to continue; these were to be settled by lower courts. Second, county commissioners were empowered “to establish reasonable maximum rates to be charged for the use of water.”Footnote ⁷⁹

Colorado's deliberations introduced the terms that were to be included in subsequent state constitutional convention debates about water rights: riparian rights; rights of prior appropriation; the hierarchy of domestic use, agricultural use, and industrial use; government price setting; and, at least implicitly, the role of the courts in setting water policy. Fifteen years after the Colorado constitution was ratified, Bromwell wrote of the courts,

For Bromwell, this record was a vindication of common law processes.

Discussion of water rights at California's convention began with a long disquisition explaining that large-scale irrigation systems faced insurmountable hurdles. “The use of water for irrigation and mining was, until the last twenty-five or thirty years, practically unknown to the American people… . when we attempt to … place it under legislative control, we are embarking on a new era.” William Tinnan, a merchant and banker, argued that all the world's experience of large-scale irrigation was in autocratic countries. Egypt and India were cases in point. Their governments, unhindered by the rights of the people, imposed taxes and enlisted labor as they willed. The cost had only to be calculated to reveal that prospects for such grand projects in a democracy were poor. Large-scale irrigation systems were expensive, and who would be willing the pay the taxes necessary to build them? Estimating the cost at “three or four hundred millions of dollars to even start this great enterprise,” Tinnan asked “would the farmers of San Diego, Los Angeles, Santa Barbara, Ventura, Santa Clara, Humboldt, Mendocino and miners of the state of California, submit to such a tax? Certainly not.”Footnote ⁸¹

The subsequent discussion of water rights was acrimonious. Issues and conflicting interests common to water rights deliberations in other conventions were debated in California with strong statements, ad hominem aspersions, and little resolution. Three issues triggered debate. The first divisive issue provoking hostile debate was about the meaning of “rights” in water. Dennis Herrington, a lawyer from Santa Clara, explained that rights to water were only use. “There never has been any higher degree of proprietorship of in the waters of this state than a use. That is all. And there is no one that can acquire any other different property in it, except he appropriate it, and the extent of that appropriation goes only to that which he uses personally.”Footnote ⁸² C. W. Cross agreed. “…[I]t is only the use of water that any man can have. No law in any country has ever intended to grant any man any interest in water, except the right to the use of water than any man can have.”Footnote ⁸³

Joseph Brown countered that “water is property, and it is not the use which is taken, but the water itself… . a man has a right to waste or destroy it, just the same as he has a right to kill his own horse if he chooses.”Footnote ⁸⁴ Volney Howard read a law text endorsing Brown's view: “a grant of land conveys to the grantee not only the ‘field’ … but all the growing timber and water standing and being thereupon; and a stream of water is therefore as much the property of the owner of the soil over which it passes as the stones scattered over it.”Footnote ⁸⁵ At the second discussion of water Brown objected again to the idea that property in water was simply use: “This idea that there can be no property in water is wrong… . These wild notions are all wrong… . We had better be guided by the decisions of the courts of the land, and by experience, and by a sense of justice than to launch out upon an unknown sea.”Footnote ⁸⁶

The second contentious issue was the rights might follow from the doctrine of first appropriation. How extensive were the privileges justified by the doctrine “first in claim, first in right”? Herrington described the dangers of the rule:

He further argued that appropriation made no difference. “What different right do you acquire by sticking up a notice, and declaring that you take it? It is all nonsense.” Corporations were painted as the villains in water rights disputes. A delegate from San Francisco made the case most forcefully: “We find, all over the State, an attempt made to condemn and monopolize all the waters of the State by corporations. Especially, sir, this is the case in San Francisco, where the influence of these tremendous water companies is so manifest.”Footnote ⁸⁸ San Francisco had recently suffered the effort, by the Spring Valley Water Company, to sell its works to the city at a greatly inflated price; this provoked an effective if disorderly protest from Kearny and other Workingmen's Party leaders.Footnote ⁸⁹ The influence of the company—or suspicion of it—was also felt in the convention. “I am thoroughly convinced,” observed Herrington, “that if this question had been managed and manipulated by the Spring Valley Waterworks, it could not have been managed more to suit their taste ….”Footnote ⁹⁰

The third divisive issue (also debated in Colorado, Idaho, and Montana) was whether water users should have access to water if access were dependent on a path through the land of someone else. This privilege, were it granted, devolved the power of eminent domain to individuals whose takings were possibly for private use. Objection was immediately voiced. “This I look upon as only another mode of confiscation… . This is simply an attempt to infringe upon the sacred right of private ownership where no public interest is involved.”Footnote ⁹¹ In Colorado, Idaho, and Montana, devolution of eminent domain for the creation of ditches for irrigation or for functions related to mining was confirmed. In California, possibly because mining was not so great an industry as in the three mountain states, it was denied.Footnote ⁹²

In the California convention of 1878, debate about water was so heated and bitter that it was not possible to draft a set of water rights or rules that could gain majority support. The result was a minimalist article that nevertheless affirmed the role of government in managing water. The article specified, first, that all appropriated water was a public use, and so subject to state regulation; second, that the right to collect rates or compensation for water supplied to the public was a franchise, to be awarded and regulated by law; and third, that boards of supervisors or other local governments should set water rates annually.

Idaho and Montana repeated the conflicts and compromises of the Colorado convention, as well as arguments from California. At Idaho's convention there were repeated protests that the doctrine of prior appropriation “might exclude the riparian owner,” and “overturn the common law.”Footnote ⁹³ It was argued that if “the water power of this country can be used to prevent irrigation, if it can be held by virtue of a prior right, good-bye to all the prosperity that we expect to come from the use of the water in irrigating our plains ….”Footnote ⁹⁴ This was the very objection raised at California's convention, where corporations made first appropriation claims.

Idaho and Montana followed the path cleared by Colorado. At Idaho's convention, Edgar Wilson explained,

Territorial legislation from 1881 served as the starting point of deliberation. Territorial statute protected settlers along ditches, declaring their right to the amount of water “good husbandry shall require.” The same law guaranteed all landowners near streams a right to use the water for irrigation. Having thereby endorsed riparian rights, Idaho's statute also endorsed the rule of prior appropriation. Leaving no legitimate claim unrecognized, the law required courts to recognize any existing custom and practice of common right. These were the provisions recommended by their use in Colorado.

Finally, the law created water districts to select, by majority vote, water masters to supervise and distribute water.Footnote ⁹⁶ The creation of water districts was also meant to serve as a political settlement between farmers and miners, as mining areas and farming areas were for the most part distinct from one another. In Montana too the familiar set of articles was proposed: that all water not yet appropriated be declared a public use; that the right to divert unappropriated water to beneficial uses not be denied, that priority of appropriation gave the better right, and that county commissions should set “reasonable maximum rates” for water.Footnote ⁹⁷

Delegates at Wyoming's constitutional convention created even more government. Article VIII, Irrigation and Water Rights, opened with the declaration, “Water is state property. The water of all natural streams, springs, lakes, or other collections of still water … are hereby declared to be the property of the state.” Subsequent sections provided for a board of control to “have the supervision of the waters of the state, and of their appropriation, distribution, and diversion…” (although its decisions were subject to review in the courts) and for a state engineer. The state was to create four water divisions; their superintendents and the engineer would comprise the Board of Control. Priority of appropriation “gave the better right” to water.Footnote ⁹⁸

The declarations of Article VIII, presented to the convention by the Irrigation Committee on September 12, were met with confusion and protest. Did not the federal government have eminent domain over all the country's land? Would a settler need two titles, one to land and one to water? What of riparian rights? Might it not be best to declare all irrigation ditches common carriers? What of the large alternate tracts of land owned by the railroads? Would a settler on one of the public tracts have access to water from a railroad tract, or might the railroad sell the water at extortionate prices? Charles Burritt, chair of the Irrigation Committee, intervened to say that the territory's irrigation system was in a sorry condition. Elwood Mead, the territorial engineer, had written a report explaining “the evils of our present irrigation system, and the … state board of control [proposed] to reverse that system.”Footnote ⁹⁹ Copies of the report were distributed, and discussion of Article VIII was postponed.

Nine days later Burritt had succeeded at persuading the convention to adopt Article VIII. On the question of irrigation, he claimed, the article “is twenty-five years ahead” of California and Colorado, and hence of any area in the arid West. More, the system proposed “would give [Wyoming] the most perfect water system that has been tried in this country.” In their haste to arrange for irrigation, many had lost sight of the other beneficial uses of water, other just claims—mining, manufacture, stock raising, and domestic purposes—”all of which, so far as our constitution is concerned, are entitled to equal protection and privileges.” No one need worry about the small farmer, for if a man settled on his hundred and sixty acres, and there was a small stream running through it, his “domestic and family purposes, should by all laws of nature give [him] the better right,” even if the stream commenced a bit outside the boundaries of his farm.Footnote ¹⁰⁰ Reassurance was rejected as disingenuous; here as in the other conventions, vociferous objection to the doctrine of prior appropriation remained. Attempts to define “appropriation” were deterred by arguments against “putting definitions” in the constitution, “making this a dictionary.” With only a few delegates dissenting, Article VIII was adopted at the next reading.Footnote ¹⁰¹

Why did Wyoming adopt the Board of Control to manage water and water rights? Andrew Morriss has argued that Wyoming's system of water management by experts and bureaucrats was the system of choice of the territory's cattle ranchers.Footnote ¹⁰² In Wyoming, farmers and mine owners were lesser players than in Montana, Colorado, and Idaho; in Wyoming cattle ranchers were dominant in the economy, in politics,Footnote ¹⁰³ and at the constitutional convention. The same men invested in irrigation, another sizable business effort in the territory. The Cheyenne Daily Leader explained, “in every part of the territory are favorable locations for the investment of capital in the construction of irrigation works of great magnitude.”Footnote ¹⁰⁴ The new water law regime was a weapon in the long-running war of cattlemen and irrigation investors against farmers whose homesteads interfered with their ability to control land and threatened their control of water.Footnote ¹⁰⁵ If, in Colorado, Bromwell lionized the courts as providers of justice and equity, for those very reasons the courts in Wyoming were the bane of cattlemen's dominance. For those who raised cattle, juries were “a ‘vexatious’ problem because they followed popular notions of justice rather than the letter of the law.”Footnote ¹⁰⁶

From Wyoming's constitution, with the most elaborate provision for centralized public water management, through the three mountain states with their competing principles and hierarchy of uses, to California's constitution, with the most brief and minimal article on water rights, the single constant was the critical role of state government in the management of water. It was never proposed in any of the conventions that the market, left to its own devices, would deliver water to all who needed it. Private-sector provision of water or water management was nowhere praised; hostility to corporate water management was the rule. One Montana delegate expressed resentment toward “foreign” corporations that might provide irrigation:

In California, the common view was that domestic corporations oppressed their fellow citizens: “We find, all over the State, an attempt made to condemn and monopolize all the waters of the State by corporations. Especially, sir, this is the case in San Francisco, where the influence of these tremendous water companies is so manifest.”Footnote ¹⁰⁸

One delegate to Montana's convention expressed common sentiment about the ultimate resolution of disputes about irrigation: he looked to government. “… I hope to see the day come,” he said,

Another delegate endorsed the view that water and irrigation should be public functions. “Well now,” he began,

Even the Republican Helena Daily Herald agreed. “We hold that it is clearly the best policy,” the editors wrote,

Absent federal or state initiatives, water issues remained a continuing source of conflict and adjudication across the West for some time to come.

Railroads and Other Corporations

Corporations, especially corporations with out-of-state owners, were a most important concern in managing the periphery. For western leaders, including delegates to constitutional conventions, outside corporations brought both the alluring possibilities of growth and prosperity and the threatening potential for exploitation, struggle, and disruption. No corporations presented these alternatives more forcefully than the railroads, and in no other area of constitutional concern did the western states so closely follow the path of the states that preceded them on the road to statehood. As much as any other set of issues in managing the periphery, the management of railroads and other corporations was weighted with tremendous economic stakes; was of great concern to mining industries, farmers, and all who desired more settlement; and posed difficult puzzles and choices for delegates.

The regulation of railroads was an issue across the United States. Debate about railroads moved from East to West with the rails. In regions without railroads, states and towns were eager to recruit them; by contrast, regions well crossed by railroads insisted on their regulation.Footnote ¹¹² Early in the nineteenth century states and towns subsidized the growth of railroads—an experiment resulting in unfortunate consequences. The lessons of that experience were written into the content of Gilded Age constitutions: states were not to own or subsidize corporations, and the debt of county and town governments was severely limited.

Changes in railroad organization after the Civil War magnified the divergence of railroad from community interests. In an earlier time, towns or counties might reasonably have imagined that their community and a small railroad shared prospects for growth; a decade after the war it was clear that the enormous railroad corporations, with interests spanning whole regions, had their own goals and prospects, independent of communities or states. Despite these experiences, after the war, areas without railroads remained most anxious to recruit them. This was especially so in the West because its main exports—precious metals, lead, and coal—were very heavy, and bound for distant markets. As a result, short of outright subsidy, communities without railroads were generous in offering freedom of action to railroad corporations. Yet in the West, as in the East and on the Plains, where railroads were well developed, citizens were most anxious to regulate them.Footnote ¹¹³ The impulse to regulate took institutional form in the 1870 Constitution of Illinois and the legislation passed in its wake to create a railroad commission.

At Colorado's constitutional convention, the familiar debate between regulation and welcome was between counties that had railroads and counties that did not, between investors and advocates of railroads and delegates with Granger views (advocating state government regulation of corporate activity). After carefully counting votes at the convention, the constitution's historian declared, “party affiliation meant nothing.”Footnote ¹¹⁴ The argument for regulation was based on both experience and principle. George White, from Jefferson, voiced a bitter critique of railroads. By land grants and subsidy, the “government had built the railroads, and now the … great cormorant power was reaching out and swallowing up all the railroads in the country. The counties of Jefferson and Boulder had been grievously wronged by these companies … should there not be placed in the constitution a clause for the protection of the people?”Footnote ¹¹⁵

In 1876, as the convention met, there were only 675 miles of track in a territory where all pinned their future on the mines, and none of the track served mining areas. Short as the lines were, many counties had gone far into debt offering subsidies in their efforts to lure railroads. Those sad experiences were a prime motive for constitutional limits on county debt (subsequently flaunted). The outcome of this debate could hardly have been in doubt. The railroads were well represented among delegates and, according to Bromwell, the “siege upon the convention in the railroad matter was led by the most influential of the public men of the Territory ….”Footnote ¹¹⁶ Henry Thatcher, representative from Pueblo and an investor with large holdings in railroads, offered a doomsday scenario if rate regulations were placed in the constitution. Wisconsin and Minnesota had regretted and repealed their regulatory legislation, he claimed, while Kansas and Iowa refused to countenance enacting it. And wherever railroad commissioners had been appointed, they concluded that setting rates was too complex a task for government. To the proposal that Colorado courts determine fair rates, Thatcher replied, “Enact these sections and not another mile of railroad will be built in Colorado. Capital, ever sensitive and timid, will find more secure investment elsewhere.” “Competition,” Thatcher insisted, “… will do more to regulate and cheapen the rates of fare and freight than all the legislation of the country ….”Footnote ¹¹⁷ Although the constitution declared railroads common carriers (thereby requiring that they treat all passengers and shippers equally), delegates refused to appoint any agency to regulate rates, as it declined even to deny the use of free passes to state workers or politicians.

California wrote its second constitution just two years after Colorado wrote her first. As Colorado, with few railroads, was most reluctant to constrain them, so California, well traversed by railroads, was most aggressive at regulation. Of course delegates recognized the contribution of the railroads. “The railroads redeemed this State from a wilderness and made it what it is today,” explained James Shafter. “The railroad property of the state today pays taxes on five hundred millions of dollars … Take away these roads, tear up the rails, and the country would soon revert to savagedom.”Footnote ¹¹⁸ Nevertheless, in California, railroads provoked tremendous hostility that was fully expressed at the constitutional convention. When the corporations article was discussed, several delegates reviewed the state's miserable experience with railroads. “Way back in eighteen hundred and sixty,” one delegate recalled, “this railroad excitement commenced. There was not a man in the State would not turn his pockets wrong side out to help build a railroad. The people were willing to give them all they asked and all they did was to take all the people gave them.”Footnote ¹¹⁹

Volney Howard agreed. Los Angeles had “contributed seven hundred and fifty thousand dollars to the railroad by way of subsidies, to enable the road to cut our own throats. They have not only bought up the landings and wharves they are virtually monopolizing the ocean, by driving off all competition.”Footnote ¹²⁰ Morris Estee,Footnote ¹²¹ who as a candidate criticized the Workingmen's parties for insufficient commitment to their supporters, and who chaired the committee on corporations, drew the moral of this history: “… I now lay down the doctrine that ‘where combination is possible, competition is impossible,’ that in truth and fact there is no such thing as competition today in the great carrying trade of the country on land … except by and through the sovereign will of the state.”Footnote ¹²² Moreover, in the wake of Munn v. Illinois it was perfectly clear that it was legally proper for states to regulate railroads. In 1877, the Supreme Court confirmed the authority of state governments to regulate business. By the California Convention, then, delegates could argue that it was perfectly clear that it was legally proper for states to regulate railroads.

Little could be hoped for from the California state legislature. James Hale articulated the common judgment that although the state and federal governments agreed that regulation was legal and necessary, “this … fact stares us in the face, that we have been attempting, through the medium of the Legislature, to exercise this control for the past fifteen years, and thus far all efforts … have been abortive.”Footnote ¹²³ Charles O'Donnell claimed popular support for the convention to act. “Who has any confidence in the legislature that have been in the state for the last fifteen or twenty years? Most of us members were sent here for the purpose of regulating freights and fares …. Now don't you leave this thing to the legislature.”Footnote ¹²⁴

The committee on corporations proposed a Railroad Commission for the state. California was to be divided into three districts, each to elect a commissioner. Together the three commissioners would set rates and arbitrate claims. Were the convention to adopt the proposed commission, it would “mark a new era in the history of the state; it will stamp upon the organic law of California that right of … regulation of railroads necessary for the protection of our people.”Footnote ¹²⁵ It was argued that the proposal for a commission recommended itself both because regulating railroads was beyond the competence of the legislature (it was corrupt and only met “once in every two years”) and because the multiplicity of disputes and claims could not be resolved by legislation.Footnote ¹²⁶

Although there was agreement that railroads needed regulation, some delegates thought the commission would be even more vulnerable to corruption than the legislature. Marion Biggs made the case against the commission:

William Dudley agreed. Insisting on his innocence of fealty to the railroads, Dudley argued, “Power over corporations is a power that belongs to the people of California. Now, it is proposed here, by one fell swoop, to take that power from the people and give it into the hands of a triumvirate. I believe it is a mistake.”Footnote ¹²⁸ Proponents of the commission countered that many states had created commissions to regulate railroads; Wisconsin and Illinois were happy with their commissions. Morris Estee offered an optimistic forecast: “I believe that you can trust the people to elect three men who will deal fairly with these great evils …. Great responsibilities always bring great attention to duty, and I believe that the very existence of such a Commission will have a most marked influence upon the future prosperity of this state.”Footnote ¹²⁹ Despite the qualms of some delegates, the commission carried the day.

Morris Estee's optimistic forecast did not come true. At the first election of commissioners, the Democratic, Workingmen's, and Republican parties and their candidates all pledged that the commission would protect the public by prescribing fair rates. One Democrat, one Republican, and one Workingman were elected, and each failed to keep his pledge. That disappointing outcome was repeated after each election. Writing about the commission in 1895, S. E. Moffett concluded,

By the time Idaho, Montana, and Wyoming held their conventions, federal actions had changed the law of regulation. Munn v. Illinois (1877) confirmed the authority of state governments to regulate business; the Interstate Commerce Commission (1887) was the institutional result of the judgment that regulation was required. Although Munn legitimated state regulation of the rails, and the federal commission confirmed the need for regulation, they failed to embolden Idaho, Montana, and Wyoming to follow the lead of Illinois. As in Colorado, the desire of the three territories for railroads, their lack of experience with railroads, the presence of railroad interests at the conventions, and dependence on outside investors stopped the creation of railroad commissions. The pressing need for railroads was often voiced. In Idaho John Morgan declared, “the great need in this country, it seems to me, is railroad lines, and whether they are competing or not I do not care, so we can get the railroads.” William Claggett agreed, “We are a young country and what we want of all things is local lines of railway.” Surely “every sensible man sees at once that if we have railroads built here it will not be by our own people; we haven't the money; the money has to come from abroad.” Dependence suggested caution. In response to a proposal that the constitution ban consolidation of railroads, one delegate declared, “It seems to me that we are acting upon the theory that now is the time to keep railroads from coming here.” As only the Union Pacific operated in Idaho, discouraging other railroads would “leave our state for all time in the hands of this one corporation.”Footnote ¹³¹

Nevertheless, the constitutions of Montana, Idaho, and Wyoming stated clearly the states' prerogative to set rates. State authority followed from declaring railroads to be public highways and common carriers, hence “subject to legislative control.” So in each constitution the legislature was given “the power to regulate and control by law the rates of charges for the transportation of passengers and freight” (Mont. Const. art. XV, sec. 6; and, similarly, Wyo. Const. art. X, sec. 2; Idaho Const. art. XI, sec. 5). In Wyoming, former territorial governor John Hoyt provided the justification for exercising state authority:

In the West the limited liability corporation remained morally suspect. Some delegates thought the corporation should be done away with, and business conducted by partnerships. In Colorado, S. J. Plumb., a Republican rancher, wanted to abolish limited liability.Footnote ¹³³ For these delegates, as for their antebellum forebears, it seemed just plain immoral that, through the device of the corporation, men would not be held accountable for the troubles, injuries, and deaths that occurred as consequences of their businesses. One response to was to expand the liability of corporate directors, making them more accountable. California's convention supported expanded stockholder liability, placing this section in the constitution:

Of the other western states, only Utah also expanded the liability of stockholders, to twice the value of their stock (Utah. Const. Art XI, sec. 18).

There were other assertions of state authority over corporations. Every western state constitution made clear that the power of eminent domain was a power to regulate corporations.Footnote ¹³⁵ California's declaration is typical:

Wyoming's constitution went further, affirming the status of corporations as creatures of the state:

Nevertheless, delegates failed to deny corporations their customary privileges. Only California and Idaho outlawed free railroad passes for public officials, only Utah banned blacklists, and although labor representatives hoped payment in scrip would be outlawed, delegates at the conventions failed to include such provisions in the state constitutions.

Protection of Labor

Every Gilded Age constitution in the West provided protections for labor. Table 1 displays protections for labor provided in state constitutions, both in the western states and states from other regions, written between 1870 and 1899. Protections for labor were for the most part confined to constitutions of the western states. The presence of workers among the delegates was critical to the passage of these protections. Suggested provisions puzzled some delegates, but the testimony of workers, from their own experiences, persuaded their colleagues. Delegates were also moved by violent labor-management conflicts in mining that occurred between the admission of Colorado (1876) and the conventions of the other western states. Although western state constitutions contained more protections for labor than other state constitutions, labor did not get all it wanted. Only Utah outlawed the blacklist, and not a single convention forbade scrip, or company stores, or abrogated the fellow servant doctrine. Montana and Washington failed to pass provisions requiring the eight-hour day for any workers. Some of these omissions were repaired by legislation before 1900. Delegates passed provisions creating the post of mine commissioner and establishing bureaus of labor, immigration, and agriculture. Constitutions declared eight hours the working day for government employees as well as in the mines; set minimum ages for the employment of young people; made recovery of compensation for injuries suffered at work more generous and more available; outlawed private militias; and provided mechanics' liens. Emily Zackin's analysis of constitutional labor rights over a longer period (1870–1940), which included amendments to state constitutions, also shows the greater number of positive rights for labor in the western states.Footnote ¹³⁶

Table 1.

Constitutional Provisions for the Protection of Labor, 1870–1899

a. Wash. Const. Art. II, sec. 34: “… a bureau of statistics, agriculture, and immigration …” (Glynn, vol. 2, 610).

b. Ark. Const. Art. XIX, sec.18: “The General Assembly by suitable enactments shall require such appliances and means to be provided and used as may be necessary to secure as far as possible the lives, health, and safety of persons employed in mining and of persons traveling upon railroads, and by other public conveyances, and shall provide for enforcing such enactments by adequate pains and penalties” (Glynn, vol. 1, 147).

c. Utah Const. Art. XVI: Sec. 1, “The Rights of labor shall have just protection through laws calculated to promote the industrial welfare of the State;” Sec. 3, “The Legislature shall prohibit … [part] 4. The Political and commercial control of employes[sic];” Sec. 6, “… the Legislature shall pass laws to provide for the health and safety of employes in factories, smelters, and mines” (Utah 1898, p. 1878).

d. Wyo. Const. Art. I, sec. 22: “The rights of labor shall have just protection through laws calculated to secure to the laborer proper rewards for his service and to promote the industrial welfare of the State” (Glynn, vol. 2, 764).

e. N.Dak. Const. Art. I, sec. 23: “Every citizen of this State shall be free to obtain employment wherever possible, and any person, corporation, or agent thereof, maliciously interfering or hindering in any way any citizen from obtaining or enjoying employment already obtained, from any other corporation or person shall be deemed guilty of a misdemeanor” (Glynn, vol. 2, 94).

f. Miss. Const. art. VII, sec. 191: “The legislature shall provide for the protection of the employes[sic] of all corporations doing business in this State from interference with their social, civil, or political rights by said corporations, their agents, or employes” (Glynn, vol. 1, 1085).

Art. VII, sec. 193: “Every employe[sic] of any railroad corporation shall have the same right and remedies for any injury suffered by him from the act or omission of said corporation or its employes as are allowed by law to other persons not employes” and limits the use of the fellow servant doctrine by the railroads (Glynn, vol. 1, 1086).

Sources: For all constitutions, except Utah and New York:

George A. Glynn, ed., Convention Manual of the Sixth New York State Constitutional Convention, 1894 (Albany, NY: The Argus Company, 1894), vols. 1 and 2.

New York: Francis Newton Thorpe, ed., The Federal and State Constitutions of the United States of America (Washington, DC: Government Printing Office, 1909), vol. V.

Utah: Utah 1898, p. 1878.

The deliberations surrounding the adoption of protections for labor were somewhat different than the considerations leading to different outcomes in the courts. There were several grounds on which judges might find protections illegitimate. The courts' continuing fealty to Jacksonian even-handedness inclined judges to view labor protections as illegitimate “class legislation.” In addition, “class legislation, discriminating against some and favoring others [was] prohibited by the fourteenth amendment.”Footnote ¹³⁷ A government might act under its police powers to serve a public purpose, but not to transfer resources from one group to another out of sympathy for the latter. However, a state might properly intervene between employer and employee to protect public health or safety. Hours laws for women were necessary because of their weaker and more vulnerable status, and were also justified by women's role as “mothers of the race.”Footnote ¹³⁸ It was sometimes argued that hours legislation unconstitutionally interfered with the liberty of an individual worker to negotiate his or her own contract with his or her employer. Both of these arguments were made in Colorado in 1895, when the state supreme court offered an advisory opinion on a proposed eight-hour law. The court declared that the law would be “class legislation” and violate “the right of parties to make their own contracts.”Footnote ¹³⁹ Over time, however, the “liberty” of workers was more and more recognized as illusory, given “the vulnerable, dependent status of wage earners.”Footnote ¹⁴⁰ As constitutional conventions deliberated proposals for protections for workers, these arguments were sometimes invoked clearly, sometimes echoed, sometimes implicit, and sometimes absent altogether.

Among the delegates at the Wyoming, Colorado, Montana, Idaho, and Utah conventions were both mine workers and mine owners. In California, the Workingmen's Party was the leading force calling for the convention and a major presence in convention deliberations. From Colorado's constitutional convention in 1876 through Utah's in 1895, issues of concern to labor were discussed at every constitutional convention in the West. Deliberations at the Colorado convention anticipated many of the issues raised in subsequent western conventions. Colorado's constitution outlawed so-called “ironclad” contracts, provided for a commissioner of mines, specified that the legislature pass laws creating safety standards for the underground construction of mines, and allowed for boards of arbitration. Later conventions in other territories debated employers' liability for worker injuries, hours of labor, protection of women and children at work, competition with prison and Chinese labor, scrip, blacklists, and workmen's liens. As delegates considered these provisions, laws were also being passed by state legislatures and there were judicial rulings on their appropriateness and constitutionality.

Colorado was the first state in the union to ban the “ironclad” contract, which required employees to renounce any effort to hold their employers liable for injuries suffered at work, even when injuries were the direct consequence of employer negligence. Article XV Corporations, Section 15, of Colorado's constitution declared, “It shall be unlawful for any person, company, or corporation to require of its servants or employes [sic], as a condition of their employment … any contract or agreement whereby [the employer] shall be released … from liability or responsibility on account of personal injury ….”Footnote ¹⁴¹

Introduction of the same language at the Wyoming convention met with immediate resistance. Anthony Campbell argued this provision

Thomas Reed, defending the provision, argued that Campbell's reading was far too broad, and explained the correct interpretation:

George Baxter lent his support, pointing out that the “answer to the objection that it will keep out capital, I have only to say this is found in the constitution of Colorado, and I doubt if any state in the union has received more rapid development and growth than that state ….”Footnote ¹⁴⁴ Geroge C. Smith tried to make the provision more expansive, offering an amendment: “and the rule of common law as to the negligence of fellow servants shall not prevail in the courts of Wyoming.”Footnote ¹⁴⁵ The amendment failed, not to appear again in western constitutions until Arizona wrote its founding constitution in 1910.Footnote ¹⁴⁶ At the Wyoming convention, the authoritative statement on labor rights in Wyoming was Louis Palmer's:

The provision was a middle ground, not abrogating the fellow servant rule, but effectively obviating the doctrine of “acceptance of risk.” Banning ironclad contracts passed unanimously (See Wyo. Const. Art. XIX, Labor Contracts). Wyoming and Utah passed in addition a provision that there were to be no limits to damages, nor a deadline by which injured workers, or their survivors, must file for compensation for injuries suffered at work (See Wyo. Const. Art. X, sec. 4; Utah Const. Art. XVI, sec. 5). California, Montana, and Utah too outlawed ironclad contracts (See Calif. Const. Art. XII, sec. 17; Mont. Const. Art XV, sec. 16; Utah Const. Art. XVI, sec. 5). In Idaho the provision was defeated. Opponents argued, incorrectly but successfully, that any contract requiring workers to renounce their rights would be found invalid in the courts. The section was deleted.Footnote ¹⁴⁸

Colorado's constitution provided for a commissioner of mines. Subsequently Idaho, Montana, Wyoming, Utah, and Washington created (or provided for) public officials whose obligations in one way or another involved labor. In Idaho, discussion of the article on labor began a proposal for the creation of a commissioner, and bureau, of labor. The bureau would be important, as Idaho was soon to be admitted as a state, and so would “very soon be confronted with problems of a very difficult nature relating to labor.” The legislature and governor would need information to act wisely. More, the bureau would, in its annual reports, give labor a voice. Of course, labor might petition the government, but “the trouble with petitions is … when they come up nobody knows whether they are the result of careful inquiry … or not” while “if you have a commission whose special object is … to keep run [sic] of all these matters … we have a collection of statistics which may prima facie be considered as reliable.”Footnote ¹⁴⁹ The same argument was made in Montana.Footnote ¹⁵⁰ Over time, the bureaus became “effective advocates” for labor.Footnote ¹⁵¹

Delegates also created agencies to regulate and oversee working conditions in the mines. In Colorado and Wyoming, commissioners of mining were to devise safety standards for underground mines, including both ventilation requirements and requirements for shoring up ceilings. Like state bureaucrats who assembled credible information, mining commissioners became important advocates for working miners. In Wyoming there was also to be an inspector of mines “to go about and see that the laws governing mines are carried out,” and he was to be certified by a board of engineers to be competent to make those judgments.Footnote ¹⁵²

California, Idaho, Utah, and Wyoming declared eight hours to be the length of the working day in public employment and, in Wyoming, also for underground workers in mines. Proposals to limit the workday in public employment raised questions in Idaho: Why should a man be paid for a day's work of eight hours in public employment if in the private sector he has to work ten hours? William Claggett did not think the section should stand:

Claggett's objection to “pets of any kind” echoed judicial reasoning opposing protections enacted only to protect specific groups of workers. On the other hand, to declare eight hours a day's work for government would be consistent with general practice:

Moreover, were the state to adopt the eight-hour day for public-sector workers, this would be a powerful example. H. S. Hampton offered his reading:

That reading being acceptable to the delegates, the provision passed without further debate.

Proposals to protect women and boys by restricting their employment were passed in Wyoming. In Wyoming, banning employment of boys under the age of fourteen was supported by argument that there was good evidence that underground work was “ruinous to their health.” It was argued that minimum-age requirements not only protected boys, but also protected other workers from boys' immature judgments. There was brief resistance to prohibiting women from working underground. “This convention has delegated to women the right to vote, she ought to have to right to dig coal if she wants to.”Footnote ¹⁵⁶ When it was suggested that limitations on work for women and boys were properly matters for the legislature, it was countered that:

The proposal passed.

Labor also brought demands to suppress competitors, in particular, prisoners and the Chinese. Conversations about prisoners began with supporters of labor claiming that it was degrading to honest workmen to ask them to work alongside (as in road construction) or to compete with prisoners. It was countered that to keep prisoners idle was cruel and unusual punishment, and that states should make efforts for the rehabilitation of prisoners. The compromise arrived at was everywhere the same. Delegates agreed that leasing prisoners to employers outside of prison grounds was forbidden; work to maintain the prison itself was appropriate for inmates but not threatening to labor.Footnote ¹⁵⁸

Demands that Chinese be kept from labor and residence were powered by racism as well as fear of competition. Anti-Chinese sentiment was the motive force of California's Workingmen's Party, and “no single issue mobilized popular forces so effectively.”Footnote ¹⁵⁹ The California article on the Chinese enjoined the legislature to “protect” the state “from the burdens and evils” that might arise from the presence of some aliens in the state; to forbid employment of Chinese workers in the private sector or by government; and required the legislature to discourage the immigration of Chinese and assist cities and towns in expelling Chinese residents or confining them to “prescribed portions” of city limits (Calif. Const. Art. XIX). The article passed easily.Footnote ¹⁶⁰ Its provisions were later declared unconstitutional.

Hostility to the Chinese was not exclusive to California, nor were anti-Chinese constitutional provisions passed only in that state. Only in California, however, was there was a large proportion of delegates, a third, elected by the Workingmen's Party, of which the slogan was “The Chinese Must Go.” The greater intensity and success of anti-Chinese activism in California is likely attributable to the presence of talented and ambitious political entrepreneurs, who were also very effective rabble-rousers. In addition, the Chinese presence in California was far greater than in any other state, about 70,000 out of 865,000 residents in 1880.

In Wyoming and Colorado, as in California in the months preceding the convention and in years to come, there were attacks on Chinese residents, their expulsion from towns and cities, and burning of their communities.Footnote ¹⁶¹ Nevertheless, no other state passed provisions like California's about the Chinese. A similar article was introduced at the Montana convention, and sent to the Committee on Labor. Without explanation, the committee reported proposed sections back with a recommendation that they not pass.Footnote ¹⁶² A few delegates voiced qualms about losing Chinese labor. In Idaho, the question of employing Chinese workers was finessed. Section 5 of the article on labor provided that “No person not a citizen, or who has not declared his intention to become such, shall be employed” in state or municipal work.Footnote ¹⁶³ One delegate worried that this might apply to Chinese, “because we work 400 Chinamen here” on the streets. In Wyoming the government could employ only citizens, although one delegate wondered, “why a law of this kind should apply to a Chinaman and not to a Finlander. From my personal knowledge the Chinaman is the more intelligent of the two …. Perhaps … the Chinaman can't vote and the Finlander can. But that does not make it just and right.”Footnote ¹⁶⁴ Of course Chinese, who were barred from citizenship, could not declare their intent to become citizens.

Conventions also looked to a government role in the prevention of labor-management conflict. Delegates argued for the creation of boards or courts of arbitration that might peacefully resolve their differences. A railroad worker in Wyoming testified to the effectiveness of arbitration. Although agreements proposed by the arbiters were not made mandatory, and no powers of enforcement were granted to them, provisions for arbitration were placed in constitutions in Wyoming, Idaho, Colorado, and Utah.

Delegates sought to prevent the worst instances of conflict—and these were very soon to be upon them—by prohibiting the import of private armed forces into the state, except at the request of the government. At the Montana convention J. K. Toole proposed, “No armed person or persons shall be brought into this state from any other state to preserve the peace, except upon the application of the legislature, or of the Executive when the legislature cannot be convened.”Footnote ¹⁶⁵ The targets of this provision, and others like it in Wyoming and Idaho, were mercenary forces assembled by employers. In support of Toole's proposal William Fields argued:

Peter Breen explained, “The resolution … is offered particularly against those vast armed bodies of men, known as the Pinkerton detectives.” In Washington territory the constitutional convention “had the same matter before it, only they had an illustration of it last winter when there were armed forces of Pinkerton detectives brought into their coal mines …. We see examples of it all over the country ….”Footnote ¹⁶⁷ Despite their experience, delegates at the Washington convention did not adopt the section. In Wyoming, local experience lent support to the proposal. Alexander Sutherland, a rancher (R, Albany County), explained that the target of the resolution was:

Wyoming too outlawed hired militias. Despite the good intentions of the delegates, and the provisions they wrote, no agency of government prevented private armed forces from intervening in Coeur D'Alene, Butte, Cripple Creek, and Ludlow in the years to come.

The western constitutions also included declarations of principle about labor. Wyoming's bill of rights included a promise that “the rights of labor shall have just protection through laws calculated to secure to the laborer proper rewards for his service and to promote the industrial welfare of the state.”Footnote ¹⁶⁹ Utah's constitution included the same promise (Art. XVI, sec. 1). In Idaho, the commissioner of immigration, labor, and statistics was required to collect information not only about compensation and hours of work, but also “upon … its relation to capital … and the means of promoting [workers'] material, social, intellectual and moral prosperity” (Idaho Const. Art. XIII, sec. 1). These general statements of state governments' obligations swept away arguments about “class legislation” and the proper scope of police powers. By using the term “shall,” statements of principle acted as declarations that states were to take a proactive role in the protection of labor. In that way these provisions became the basis for court rulings approving state laws limiting hours of labor and, later, setting minimum wages.Footnote ¹⁷⁰ Legislation passed under these provisions made the “pragmatic jurisprudence” of the western states possible, because the state's role as “paternalistic guardian of industrial workers” was “assigned in its constitution.”Footnote ¹⁷¹ Eventually, the same pragmatic jurisprudence persuaded the U.S. Supreme Court to abandon Jacksonian restrictions on laws for the protection of labor.