Liquid Capital. Joshua A. T. Salzmann
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investment in business. To argue their case, the elevator owners hired the esteemed attorney John N. Jewett.51 A native New Englander with a serious demeanor, Jewett became a pillar of the Chicago legal community, cofounding the Chicago Bar Association in 1873, serving as the organization’s president in 1877, and holding the position of dean of the John Marshall Law School from 1899 until his death in 1904.52 In Munn, the attorney insisted that by setting maximum storage rates the state was depriving warehousemen of income, or taking their property without due process. If the Supreme Court upheld that precedent, Jewett worried, it would set “the government … on … the highway to the plundering of individual wealth, and the destruction of private enterprise.” Jewett wondered what incentive anyone would have to invest in business.53
If Jewett’s more philosophical argument about the sanctity of property rights swayed the justices, his second, jurisdictional claim only underscored the practical reality his clients wished to deny. Namely, the public had an interest in Chicago’s waterfront grain elevators. Jewett argued that Chicago’s elevators were so critical to the flow of grain across the continent that their use constituted a form of interstate commerce, even though all the warehouses were located in the state. Thus, Jewett suggested the elevators could not be regulated by the Illinois legislature, only Congress.54 Jewett seemed to have gambled on the fact that he could not realistically deny the economic centrality of the waterfront elevators. His strategy backfired. The court rejected Jewett’s jurisdictional argument and readily accepted his point about the geographic centrality of Chicago’s grain warehouses, which played into the hand of Illinois Attorney General James Edsall. Edsall claimed that location was the very thing that made the grain elevators a form of public, not private, property. Chicago’s warehousemen, Edsall noted, “can impose such rates upon shippers and producers of grain as they see fit,” because they are “in the possession of the very ‘gateway to commerce.’” Without regulation, elevator operators could extort the whole nation. Edsall insisted that setting grain storage rates, like those of draymen, hackmen, or ferry operators, would facilitate the flow of an essential commodity through Chicago’s waterfront, thereby safeguarding the grain market.55
The Supreme Court concurred with Edsall’s view that economic geography had transformed Chicago’s elevators from a private business to one “affected with a public interest.” With that phrase the author of the seven to two majority opinion, Chief Justice Morrison Waite, established a precedent for state legislatures to respond to the new economic realities of the Industrial Age with statutory regulations. His ruling in Munn was among the most significant events of his career. Waite grew up in Connecticut where his father practiced law and earned a seat on the state’s Supreme Court. Morrison Waite attended Yale before settling in Toledo, Ohio, practicing law, and serving one term in the Ohio Senate from 1849 to 1850. The Whig-turned-Republican lawyer was little known on the national political stage until President Ulysses S. Grant nominated him to the nation’s highest court in 1874. Grant had already attempted to appoint four other men to the post; two had declined and two had faltered in their attempts at congressional confirmation. By nominating Waite, Grant satisfied many Ohio Republicans, including his distant relative and Secretary of the Interior Columbus Delano. Waite served on the bench from 1874 to 1888, distinguishing himself with good humor and able management.56 He showed his pragmatism in his ruling in Munn.
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