Chapter XVI. Government by Injunction

Our movement early commenced to have an influence outside of Cleveland, and it was in the midst of my first mayoralty campaign that I received a call from Columbus, the State capital, to help in a contest then going on between that city and its street railroad company. I had my hands pretty full in Cleveland, but I went down to Columbus to give such assistance as I could, taking Professor Bemis with me.

Some of the grants to the Columbus Street Railway Company had been made before the State legislature passed a law which limited the life of all street railway franchises to twenty-five years. Some of them had already expired, some had been granted without date of expiration. A citizens’ committee of twenty-five and sixteen out of the nineteen members of the city council invited me to address the council committee of the whole on the street car question. I made a number of speeches which, combined with the articles which appeared daily in the Columbus Press Post from Professor Bemis’s pen, did something to enlighten the citizens on the real status of the street railway controversy.

I offered to take the grants on favorable terms, fair to the old company, agreeing to buy the physical property, the valuation to be reached by negotiation or arbitration, and to operate at three-cent fare. The council refused to consider my proposition and the grant was made to the old company, but so amended as to provide for seven tickets for a quarter until the receipts of the company should amount to $1,750,000 annually, and then the fare was to be reduced to eight tickets for a quarter. The courts upheld the validity of this grant, but the condition of eight tickets for a quarter has never been complied with. Whether the street railroad company has actually swindled the public or whether they have shuffled the bookkeeping in such a way as never to reach the limit I never have been able to find out. At a five-cent fare Cleveland was taking in $6,000,000 a year, so it is perfectly clear, after allowing for the difference in population in the two cities, that Columbus couldn’t fail to reach the mark of one million and three-quarters.

The judge who rendered the decision in favor of the street railway company, holding that some of their grants were perpetual unless the legislature repealed them, was Judge A. N. Summers. Several months before his decision was made public a number of us learned what it would be. My knowledge of it came to me in a confidential way so I could not make it public. Stock advanced from a very low price to a very high figure while this case was pending. It was long drawn out and between the time that the decision was known and the time that it was made public the Republican State Convention of 1903 was held and nominated Judge Summers for the supreme bench. In the State campaign that year I publicly made charges against Judge Summers and offered to divide my time with him or any representative he might select to come to any of our meetings and explain this remarkable transaction. The judge never answered me on the stump. His friends said the knowledge of the decision leaked out through a stenographer. My charge was that stock gamblers were profiting by this knowledge on the one hand and the judge on the other since he was receiving the support of the public service corporations in his campaign. I insisted that whether his position was due to carelessness or to viciousness the people ought not the elect him to the high office of supreme court judge. He was elected. This is a way public service corporations have of rewarding faithful servants. When all is said and done, I think he was not much worse than the rest of the court and a rather better lawyer than most of them. The people had not been sufficiently aroused to hold judges accountable for their actions. Ohio elects her supreme court judges for six years and by reason of changing from annual to biennial State elections Judge Summers’s term held over an additional year. It was not until the last State election (November, 1910) therefore that he was a candidate for re-election and then he was defeated. The people are beginning to wake up and Privilege is finding it somewhat more difficult to bestow rewards of this kind now than ten years ago.

While the activities described in previous chapters in behalf of the equalization of taxes and the promotion of public improvements and good government were going forward the other promise of our platform – to try to give three-cent fare on the street railroads – was not neglected. The people looked upon this as the important question, but in the beginning comparatively few of them realized the intimate relation between it and all the other problems we were trying to solve and they did not in the least comprehend the difficulties in the way. There were many who clamored for the immediate redemption of the three-cent fare pledge without taking into consideration the legal obstacles which blocked our path or the almost insurmountable barrier which the coalition between the public service corporations and the courts presented.

It will be remembered that Cleveland’s street railways were at this time controlled by two companies, popularly known as the Big Con and the Little Con. The last named was Mr. Hanna’s company and the Big Con was the result of the consolidation of the Andrews-Stanley interests with my lines. As had already been stated I had sold all my Cleveland street railway interests in 1894-95. The contest to secure three-cent fare was between the city and these two companies which had a common interest in opposing anything which threatened their monopoly of the city’s streets. They acted as a unit and in 1903 they consolidated. The reader will be less apt to be confused if these interests are referred to from the beginning as one company and this I shall do.

The State laws had been carefully framed and as carefully guarded to protect existing street railroads in their privileges and to prevent competing lines, and it was only through competition that we could hope to secure a reduction in fare.

There were three ways in which grants could be made and we shall consider them in the order of their respective advantages to Privilege.

The first and easiest provided for the most valuable form of street railway franchise, namely, the renewal of an expiring grant. This could be made only to the company in possession of the grant and was not hampered by restrictions of any kind.

The second provided for extensions to existing lines and required consent of property owners along the proposed route.

The third, for making grants for new lines, was so complicated as to make it next to impossible to build a competing railroad.

These were the legal conditions which faced us, and it must be remembered that they were prescribed by State statutes and that the municipality had no recourse but the courts, and the courts, as had already been shown, were operating in the interests of the public service corporations. We were undecided as to which was the wiser course for us to pursue, — to have council make a grant covering a number of streets, or one for a small branch from which future extensions could be made. As the question of grants for new lines had never been tested in the courts we felt pretty sure that we should be defeated no matter which horn of the dilemma we took. We had not only to decide upon the policy of the administration, but to find someone to whom the grants could be made who would not only be able to finance the enterprise but whom we knew to be absolutely trustworthy.

On December 6, 1901, there was introduced into the city council the first legislation for the establishment of new street railroad routes upon which the rate of fare should not exceed three cents. On February 10, 1902, one bid was received, accompanied by a deposit of fifty thousand dollars. This bid came from J.B. Hoefgen, a man who got his first street railroad experience with me in Indianapolis years before, and now an independent operator located in New York. He was declared the low bidder and the grant was made to him March 17, 

1902. We knew he wouldn’t sell out to the old company or fail to keep faith with the city in any other way. The making of this grant, which covered a large number of streets, had been preceded by a property owners’ consent war extending over several months. Representatives of the street railways followed closely on the heels of the men who were getting consents for Hoefgen and brought every possible pressure to bear to have these consents revoked. It was like a game of battledore and shuttlecock with an organized force playing it for each side. The courts held that property owners had a right to change their minds up to the time the ordinance was passed. Some of them did so seven or eight times or as often as they were paid to. The Hoefgen Company finally secured a lot of consents at the eleventh hour and turned them in just before the ordinance was passed when it was too late for the railroad companies to secure revocations.

Council could not make a valid grant unless a majority of the property owners representing the feet front along each street of the proposed routes consented in writing to the construction of a street railroad, and then only to the company offering to carry passengers at the lowest rate of fare. If the street railroad company, through property owners’ consents, could get control of just one street in a group of streets to be covered by proposed new lines council was rendered helpless, and though a majority of the citizens of the entire city favored the new grant they had no way of giving expression to their will in the matter.

To overcome this difficulty we early found it necessary to change the names of the streets. The three-cent line in question was to run upon Hanover, Fulton, Willett streets and Rhodes avenue, a continuous thoroughfare with four different names. The low fare people had a majority of consents on Fulton street and Rhodes avenue, but lacked a majority on Hanover and Willett. Council changed the name of the entire thoroughfare to Rhodes avenue and in this way wiped out the minority on Hanover and Willett with the majority on Fulton and Rhodes. This method of attack or defense was persisted in pretty thoroughly by the administration.

When the courts declared the Hoefgen grant invalid, as of course they did, we asked to have this order made final. We wanted to clear the way for immediate action in another direction. This done, we now proceeded to try the alternative previously alluded to. We picked out eleven routes and required a bond in the form of a cash deposit of $10,000 to be made with each bid. This made it necessary for the old company, as a matter of self-defense, to be the lowest bidder on all ten routes, and to put up the deposit of $110,000. The new company had only to succeed on one and to put up a deposit of $10,000. Having secured a grant on one route they could secure further grants as extensions to their original line. No deposits were necessary on extensions though property owners’ consents were required. I was using, in the interests of the city, exactly the same methods to secure grants for the low fare people which the Hanna-Simms Company had used to prevent grants to me when I was seeking them as a street railway operator back in 1879. This plan was persisted in and was the one which eventually won the victory for the city and vindicated our campaign promises. And by a curious coincidence too the first three-cent grants were for routes over part of the same territory that was involved in that 1879 contest.

But before we were successful many extraordinary things happened, not the least of which was the practical destruction of the city government of Cleveland.

Privilege was thoroughly aroused now, and had evidently arrived at the conclusion that safety from our agitation was to be secured on by killing it and everybody connected with it. Two days after the first three-cent fare ordinances were introduced in the city council a press dispatch reading as follows was sent out from Columbus:

“December 8, 1901.

“A suit to test the constitutionality of the Cleveland law under which the city is now being governed was filed in the supreme court this afternoon.

“It is a quo warranto suit styled the State of Ohio, ex rel Attorney General vs. M. W. Beacom and the other members of the board of control, otherwise known as Mayor Johnson’s cabinet. It is based upon the contention that the act of Mary 16, 1891, applies only to the city of Cleveland and is therefore special legislation.”

The suit was bought by an obscure lawyer, but it was not at all difficult to trace it to the real perpetrators – the public service corporations of Cleveland. In the latter part of June, 1902, the supreme court declared unconstitutional the charter under which Cleveland had been operating for about twelve years, though its legality had never before been questioned. Ten days before our three-cent-fare franchises were to be bid for, the supreme court, upon application of Attorney-General Sheets, enjoined the city of Cleveland from making any public service grants of any kind. Other cities of the State were operating under charters just as “unconstitutional” as Cleveland’s, but not one was enjoined. All other cities were left free to carry on their own affairs. By these rulings of the supreme court our hands were literally tied in our street railway fight and they were kept tied for eleven long months.

During the summer of 1902, a special session of the State legislature, inspired by Senator Hanna, was called to adopt a new municipal code – one which should apply to all cities of the State, and remove from Cleveland the obloquy of “special legislation.”

Though the legislature was importuned and beseeched to give to all the cities of Ohio the Cleveland form of government, known as the federal plan, and thus provide a uniform system in accordance with the constitutional requirement, and at the same time give an excellent plan of municipal government, they refused to do so. Instead, they went to Cincinnati, a city governed by a self-confessed boss who issued his orders by telephone, for the model of that code. The new code provided for board governed cities and is very advantageous to government in the interests of Privilege. Its divided power and no responsibility prevent the people from locating the sources of corruption.

Aimed directly at Cleveland and clearly intended to reduce the mayor to a figure-head, the blow went wide of the mark, as later history will prove.

When my first term as mayor was drawing to its close in the early spring of 1903 and we took an inventory – not of the things we had accomplished – but of the things we had been prevented from doing we found that we had kept the courts pretty fairly busy as the following record of injunctions indicates:

No. 1

July 22, 1901.- City board of equalization enjoined from increasing the valuation of the Cleveland Electric Railway Company.

No. 2

Nov. 9, 1901.- Enjoined from entering into contracts for cheaper street lighting.

No. 3

Nov. 9, 1901 — Enjoined from entering into a contract for cheaper vapor lighting.

No. 4

April 6, 1902. — Enjoined by common pleas court from carrying out three-cent railroad franchise.

No. 5

April 7, 1902. — Enjoined from permitting construction of three-cent-care railroad.

No. 6

May 11, 1902. — Enjoined from carrying out three-cent franchise by circuit court.

No. 7

June 30,1902. — Injunction against three-cent franchise made perpetual.

No. 8

July 19, 1902. — Enjoined from considering the granting of any franchises. Circuit court.

No. 9

Aug. 9, 1902. — Temporary injunction by supreme court against considering the granting of any franchises.

No. 10

Aug. 15, 1902. — Permanent injunction from considering the granting of any franchise.

No. 11

Nov. 19, 1902. — Injunction by the supreme court removing the police department from the control of the administration.

No. 12

Dec. 20, 1902. — Enjoined from making any investigation into inequalities in taxation.

No. 13

March 6, 1903. — Enjoined from making contracts for paving of streets.

These injunctions were the first of the more than fifty which hampered the progress of the people’s movement in Cleveland. Injunctions got to be so common during my administration and were made to serve on such a variety of occasions that the practice gave rise to the witticism that “if a man doesn’t like the way Tom Johnson wears his hat he goes off and gets out an injunction restraining him from wearing it that way.” Everything we attempted was made the object of misrepresentation, vilification and attack. My part in our various activities and my aggressiveness naturally drew the fiercest wrath and the bitterest abuse to me personally.