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At the close of his testimony, with deference and modesty, he said: "When I sold wood to steamboats on the Mississippi river, I had a lien for its price, on the boat, ahead of mortgages, and I suppose there is no difference between wood sold to run a steamboat and wood and ties sold to run a railroad.”
But the Supreme Court had said they could not find that the rule which has obtained in admiralty from the dawn of commerce which prefers such claims over mortgages, had ever been applied to railroads; and this, of course, was true, for there had been no railroads to call for its application; they were a modern invention. The court might have fortified its opinion by citing a case in point: A suit was brought before a justice of the peace in Vermont by one farmer against another for breaking his churn. The justice took time to consider and then said that he had looked through the statutes carefully, and could not find that any action had ever been brought before for breaking a churn, and gave judgment for the defendant.
It's a curious fact that the errors and mistakes of great men and great tribunals are proportioned to their greatness. When they do err, the error is colossal. There are those who teach that the oppression of the great is like the hail and thunder-a thing irremediable-the ordinance of nature; but happily for mankind, the errors of great judges and judicial tribunals are remediable. All the appellate courts of the country are doing. nothing else but correcting their own and the errors of other courts, and all, of course, falling into new ones constantly.
Moreover, the last item in the account was eleven months old when the road went into the hands of the receiver. The judge decided that this was fatal to his claim, according to the then decisions which restricted the payment of such claims to those which had accrued within six months; that although his wood and his ties kept the railroad running and from being ut terly valueless, either as an instrument of commerce or as a security, he had no equity to be paid in preference to the mortgagees, whose security he had preserved.
The decision was a thunderbolt to that old man. He looked like a man sentenced to death. With a trembling hand he reached for his coon-skin cap, with difficulty rose from his seat, and tottered rather than walked out of the court room.
He took the train for home and was let off at his cabin. His aged wife and the old negro man were awaiting his return with eager expectation. He entered the cabin, and in anguish
The judge will not While his wife and
said: "Oh wife! Oh Ned! We are ruined! pay us anything for our wood and ties." the old negro man gave way to tears and sobs, the coon-skin cap man sat silent and dejected. Presently he rose up and went out of the cabin.
His wife prepared their frugal meal and called her husband. There was no answer. No answer coming to repeated calls, his wife and the old negro went out to search for him. They found him-hanging to the limb of a tree, dead. The coon-skin cap was lying at the root of the tree.
Nothing is a lesson to us if it doesn't come too late. The specter of that man of honest toil hanging from that tree, the vision of that cap, and an uneasy and alarmed conscience, imposed upon that judge the burden of prayerfully inquiring whether the judgment that produced this awful tragedy was just, and upon making that inquiry he found that there was a close analogy between ships and railroads; that both were instruments of commerce; that neither could perform their functions or be of any utility to the public, or of any value as a security, unless they were kept running, and that they could not be kept running without labor, materials and supplies, that were. not and could not be paid for at the time they were procured or purchased; and that every one taking a mortgage on such property knew this, and must therefore be held to have impliedly consented that such claims should have preference over his mortgage.
He found that there was just as much law for saying that such claims were valid if they accrued within six years, as there was for saying that they must have accrued within six months; that the length of time depended on the length of the chancellor's foot; in a word, that all the law on the subject was judge-made law; and that judge thereupon determined to measure out equity according to the length of his own foot-not a small one-instead of that of some other judge, and to make a little judge-made law himself, and he then and there made it a rule of his own court that no railroad receiver would be appointed except upon the condition that all claims for labor, supplies and materials necessary to keep the road in operation, and all claims for damages resulting from its operation that were not barred by the statute of limitations, should have preference over mortgages. And this rule is what the toastmaster has been pleased to call the "Coon-skin Cap Law." This rule
was without any precedent to support it, but it was sublimely just. It was its own precedent, and it would be happy for mankind if all judicial precedents had the same everlasting and impregnable foundation. Since the adoption of that rule no citizen of Arkansas has had occasion to commit suicide for the same reason the "coon-skin cap man" did. But this rule came too late to save the life of the man with the coon-skin cap. To be wise too late is the exact definition of a fool; and that judge bows his head in sorrow and humiliation, and confesses he is in that category. After all, the human skull is but the temple of human errors, and judicial clay, if you analyze it well, will be found to be like all other human clay.
At first the "Coon-skin Cap Law" was not in favor with most judges, but its author consoled himself with the reflection that great truths commonly dwell a long time with minorities. But it is a gratifying fact that the sun sets every night on an increased number of supporters of the "Coon-skin Cap Law." Through legislation in some states, and by judicial decisions in others, it is fast becoming the law everywhere. Like John Brown, the body of the man with the coon-skin cap "lies mouldering in the grave, but his soul goes marching on."
In relation to the limit of time and the character of supplies to entitle to a preference, there is a total want of uniformity in the decisions of the courts, and even in the decisions of the same court. Claims six years old have been allowed by the Supreme Court, and at another time it has said that only claims which accrued "some short time" before the receiver was appointed could be paid, which is exactly as definite as to say that a certain thing is as big as a piece of chalk. The equity is admitted by allowing any debt to be preferential for ever so short a time. The principle being established the equity should be complete. There is no difference in principle whether such a debt is six days or six months or six years old-if it was a preferential debt in its inception that equity inheres in it until it is barred by the statute of limitations. There is no rule of law or equity to the contrary-there is only the varying and conflicting opinions of judges as to what rule the judges ought to make. It is a legislative function to make a statute of limitations, and every state has such a statute, which is as applicable to preferential debts as to any others. It has also been said that there is no difference between a mortgage on a farm and a mortgage on a railroad. Before a mortgage on a railroad
can be likened to a mortgage on a farm, the farm must be put on wheels, and-propelled by steam or other motive power— be under obligations to the public to carry passengers from the Atlantic to the Pacific, and enjoy the high privilege of running over every other farm on the line of its route between the two oceans, whether their owners will or no, and from the nature of its business be compelled to obtain on credit the labor and materials essential to keep it moving, and enable it to discharge the duties it owes to the public. The Seven Wonders of the World would be nothing compared to such a farm. Even a Supreme Court decision can not give birth to such a wonder. The whole doctrine is bottomed on the essential difference between a railroad and all other kinds of property except a ship; between a ship and a railroad the analogy is perfect. But argument to overthrow the fallacy is not necessary. It is opposed alike to the reason of man and the instinct of animals. There is not a raccoon in the United States that does not know the difference between a cornfield and a railroad; and if the distinguished member of the Supreme Court, who is your guest on this occasion, will accompany me some night on a coon hunt in Arkansas, I will demonstrate this fact to him. But recent decisions of that court give the promise of better things. It may be said of that court, as the Nevada miner said of the Chinese "It is becoming civilized and Christianized." A Chinaman in Nevada discovered a valuable mine. A miner with exalted notions of the right of a free-born American citizen, drove the Chinaman out of his mine, and took possession of it. The Chinaman returned the next day with a Winchester rifle, and sent a ball through a vital part of the claim-jumper's anatomy. The friends of the dead man assembled to bury him. Their leader turned the body over, examined the track of the bullet, which had plowed its way through the heart, and then with a deep sigh and in regretful tones said: "Boys, these damned Mongolians are becoming civilized and Christianized." There is hope for the Supreme Court yet.
The law on this subject should be known, but all that is known about it outside of the jurisdictions where the coon-skin cap law prevails is that it is consistent in its inconsistency, certain in its uncertainty, and uniform in its want of uniformity. On this subject "Confusion now hath made his masterpiece."
The fine distinctions drawn by some courts between preferential and non-preferential debts are simply bewildering. In
one case a claim for fuel was preferred and a claim for headlight and lubricating oil rejected, presumably upon the ground that the red hot boxes resulting from the non-use of lubricating oil would perform the office of the headlight, and that the pungent odor emitted from the hot boxes would advise all animal creation having nasal organs of the approach of the train. Such a microscopic administration of equity requires a much keener vision than ordinary men possess, or according to Pope, were ever intended to possess:
"Why has not man a microscopic eye?
For this plain reason, man is not a fly.”
In time of war it is permissible to send out a column of cavalry with orders to "subsist on the country," but courts of justice ought not to decree that railroads can either in peace or in war "subsist on the country" through which they run for the profit of their bondholders, who are always practically their
Toastmaster: Our next speaker can certainly claim that no one west of the Mississippi river possesses that marvelous command of the English language and familiarity with ancient history that enables one to speak of Cicero, Demosthenes and Erskine, in such terms of eloquence as we heard this afternoon. His only failing is that he lives in Kansas City. The response to the next toast will be made by Judge Philips of the Circuit Court of the United States, sitting in Kansas City. (Applause.)
TOAST BY JUDGE JOHN F. PHILIPS.
Mr. Toastmaster and Gentlemen-I am satisfied that if the committee on arrangements could have anticipated the affliction. to which my address this afternoon subjected the association, they would have concluded that they could get along "without this."
When I was notified of the fact that this additional draft was to be made upon my limited resources, I felt very much like imitating the girl in Missouri, as narrated by a very rugged nisi judge of my state. A lawyer appeared in his court with a motion