Kansas Historical Quarterly - William C. Hook
Judge of the Eighth Circuit Court of Appeals
of the United States
Thomas Amory Lee
February 1934 (Vol. 3, No. 1), pages 68 to 85
Transcribed by lhn; additional HTML by Susan Stafford;
digitized with permission of the Kansas Historical Society.
FOUR members of the Kansas bar-two from Leavenworth and two from Winfield have been appointed to the federal bench and have added luster to their names, their profession and their state. Of the four, only one, Brewer, of Leavenworth, reached the supreme goal and sat upon the supreme court of the United States. Two of the remaining three each twice came close to the goal, and the fourth, much junior in service to the others, was seriously considered by President Hoover for the last vacancy upon the supreme court.
David J. Brewer was appointed to the supreme court bench in 1889, after having served as an associate justice of the supreme court of Kansas, and as a judge of the circuit court of the United States for the eighth circuit. William C. Hook, the subject of this sketch, also of Leavenworth, was appointed judge of the United States district court of Kansas in 1899, and sat upon it four years before being advanced to the circuit court in 1903. John C. Pollock, of Winfield, had been an associate justice of the supreme court of Kansas for several years before he was named as judge of the United States district court of Kansas to succeed Hook in 1903, and George T. McDermott, originally of Winfield although all of his practice had been in Topeka, sat as a trial United States judge for the district of Kansas for two years before he was appointed in 1929 to the newly created Tenth Circuit Court of Appeals.
As I have said, all of these men have added luster to their profession and to their state. When the writer of this sketch argued his first case before the United States supreme court, Justice Brewer was still in the thoughts of the older members of the court, and the writer well remembers the anecdotes which one of the justices of that court told him at the dinner table concerning the learned, keenly logical and sometimes controversial Brewer. No other man from our state has attained the supreme goal of lawyers and jurists, although both Judges Pollock and McDermott have been seriously
70 THE KANSAS HISTORICAL QUARTERLY
considered for it, and any lawyer who has ever appeared before them knows that the appointment of either would grace the bench itself. But Hook came, perhaps, closer to an appointment to the United States supreme court than almost any man in history who was not appointed, and not only once, but, twice.
William Cather Hook was born in Pennsylvania at Waynesburg, on September 24, 1857. He died at his country home at Plum Lake, Wis., August 11, 1921, after a service of eighteen years upon the federal appellate bench. He was the son of Enos and Elizabeth (Inghram) Hook, and was descended from Thomas Hooke, who settled near Providence, Md., in 1668. The family is of mixed English, Scotch and Irish descent. Judge Hook was the great nephew of Enos Hook, a member of Congress from Pennsylvania, in the sessions of 1838 and 1840, and the great, great grandson of Capt. James Hook of the Continental army who saw active service in the Thirteenth Virginia regiment until the summer of 1778. His parents moved to Nebraska in 1863 and across the plains to Colorado by ox and mule team in 1866, and then back to Leavenworth where they finally settled in 1867, and Leavenworth was always thereafter his home. After he graduated from the Leavenworth high school he studied in the law office of Clough & Wheat, a famous firm for many years in eastern Kansas. Before he was twenty-one years old, he had been graduated from the law department of Washington University at Saint Louis, with the degree of Bachelor of Laws, and upon his majority, he was admitted to practice and at the same time admitted to the law office of Lucian Baker of Leavenworth. Baker, too, is famous in the legal history of the state. Much business of a varied character came to that law office, and young Hook learned quickly and well the fundamentals of successful practice. When Baker was elected to the United States Senate, the law firm of Baker, Hook & Atwood was formed, which continued until William C. Hook was appointed, in 1899, to be United States district judge for the district of Kansas. The other member of that firm was John H. Atwood, now practicing in Kansas City, Mo.
Four years after his admission to the bar, William C. Hook married Louise Dickson, daughter of Capt. James Dickson, and to them were born three daughters and a son, Inghram D. Hook, an able and prominent lawyer of Kansas City, Mo., and a captain of infantry overseas in the World War.
Although Judge Hook was a Republican, he was appointed city
LEE: WILLIAM C. HOOK 71
attorney of Leavenworth by a Democratic mayor and served in that capacity for six years.
It was not long after Judge Hook's appointment on February 13, 1899, to succeed Judge Cassius G. Foster who had resigned, that Judge Hook's first opinion appears in the Reports. On April 29, 1899, in the 93d Federal, at page 865, Judge Hook's opinion in the case of Grove et al. v. Grove et al., for the circuit court of the district of Kansas, second division, is printed. From then until his death, his opinions are scattered through 176 volumes of the Federal Reporter, the last one being at page 150 of the 269th volume. His first opinion is in Judge Hook's characteristic style. The nature of the suit and the facts are clearly and shortly stated. The questions to be decided are logically considered and answered. His first printed opinion concerned itself with the important question of jurisdiction, and the following extract from his opinion is characteristic of the man:
The right of a court to retain jurisdiction by the dismissal of parties who are not indispensable is founded in good reason, for it would be an idle ceremony to deny the dismissal of objectionable parties and to dismiss the bill of complaints on the ground that the court had no jurisdiction, and then allow the complainants to recommence the suit, omitting the parties whose presence would oust the jurisdiction of the court. The practice observed for so many years is in the interest of the speedy determination of litigation. (1. c. 867.)
A study of Judge Hook's opinions shows that they were, from the beginning to end, common-sense opinions. His keen mind was not only an analytical mind but a practical and constructive mind. The speedy determination of litigation appeared to him to be of more importance than an interminable wrangling over narrow and technical points of law. Preservation of the equities of the various parties in interest was more important than subservience to legal form. These characteristics were particularly observed in the reorganization of the Metropolitan Railway system, which, for almost the first time in judicial reorganizations under equity receiverships, preserved the stockholders' equity and served the public interest, as well as satisfied, in part at least, the lawful demands of creditors.
At the time that Judge Hook went on the bench, the famous old eighth circuit was headed by Judge Henry C. Caldwell, of Little Rock, Ark. Judge Walter H. Sanborn, of Saint Paul, for so many years Judge Hook's chief, and Judge Amos M. Thayer, of Saint Louis, were the two other judges. The circuit justice over the eighth circuit was Justice Brewer of the United States supreme court, and
72 THE KANSAS HISTORICAL QUARTERLY
other district judges included Elmer B. Adams, of Saint Louis; John F. Phillips, of Kansas City, and W. H. Munger, of Nebraska.
Judge Hook's first opinion which excited wide public interest was in the Western Union case (Western Union Telegraph Co. v. Myatt, State Solicitor, et al., 98 Fed. 335). Judge Hook had been upon the bench less than a year when he announced his decision in this notable case, striking down the Kansas court of visitation. The Kansas legislature in 1898 had attempted to create a body which should have a combined legislative, judicial and executive power, contrary, of course, to the fundamental ideas of constitutional government in our country. The case was argued upon the one side by the State Solicitor Myatt, and Atty-gen. A. A. Godard, of Kansas, and upon the other side by the attorneys who for so many years were retained by the Western Union and Pullman companies, as well as by other great Eastern corporations, Rossington, Smith & Histed. George H. Fearons, L. C. Krauthoff and Frank Hagerman were also of counsel. The bill of complaint of the Western Union Company set forth that, pursuant to the provisions of chapter 28 of the Special Session Laws of 189_8, a court of visitation had been created, subject only to review by the supreme court of the state, which should have the widest possible kind of executive, legislative and judicial powers over recalcitrant railroad companies and similar corporations. Upon the complaint of one Maxwell, who had tendered to the Western Union Co., certain messages and demanded the transmission thereof at the rates prescribed under chapter 38 (which subjected telegraph companies to the court), which had been refused by the company, the court of visitation sought to exercise its powers. The bill of complaint alleged that the act itself and the order of the court of visitation violated the due process and equal protection of the laws clauses of the fourteenth amendment to the federal constitution.
After stating that the proofs upon the application for the temporary injunction clearly showed that the rates prescribed by the law were materially less than the actual cost of the service, Judge Hook granted the injunction, not only holding that the rates were confiscatory, but also holding that the law creating the court of visitation violated the constitution of the state of Kansas, which inhibited the conferring of inconsistent legislative and judicial powers upon the same body to be exercised in regard to the same subject matter.
This case attracted the attention of President Roosevelt, and
LEE: WILLIAM C. HOOK 73
when the Senior Circuit Judge Caldwell retired, President Roosevelt named Judge Hook as a circuit judge, in 1903. Most of Judge Hook's service in the next nine years was upon the circuit court of appeals. Presently Judge Thayer retired and Judge Adams of Missouri was promoted to the circuit bench, and for a good many years, Sanborn, Hook and Adams rendered a great majority of the many notable decisions of the old eighth circuit which was the largest circuit in the country and included practically all of the territory between the Missouri river and the Rocky Mountains.
In 1908, Judge Hook wrote the opinion in the Omaha City Water Works Co. case (162 Fed. 225), holding, in brief, that the city of Omaha might acquire the private water works which extended into other communities and beyond the corporate limits. In this case, as in all of the Hook opinions which the writer has studied, the Judge took the most practical view of the situation. With all of his learning it might well be said that the foundation stone of Judge Hook's opinions was always practical common sense. In this particular case the termination of interminable litigation was most important, and Judge Hook terminated the litigation.
In 1909, the famous suit by the government to enjoin the Standard Oil Co., John D. Rockefeller, and many other individual defendants, as being in restraint of trade, was argued before the eighth circuit court of appeals. The court rendered a decree in favor of the government and enjoined the defendants. It was in this case that Judge Hook wrote the definition of monopoly and restraint of trade, which was quoted so frequently by Attorney-general Wickersham in his opinions, and which had much to do with President Taft's tentative selection of Judge Hook for a place on the supreme court. In his concurring opinion, Judge Hook said:
Magnitude of business does not, alone, constitute a monopoly, nor effort at magnitude an attempt to monopolize. To offend the act the monopoly must have secured by methods contrary to the public policy as expressed in the statutes, or in the common law.
Judge Hook went on to say that the question of violation of the law did not depend upon whether or not the monopoly was reasonable or unreasonable, but depended upon the result or effect. If the restraint were direct and appreciable, then there was a violation of the statute, but if the restraint were merely incidental then there was no violation of the statute. At this particular time the supreme court had not yet introduced into the law the so-called rule of reason, although, when the decision of the eighth circuit court of appeals in
74 THE KANSAS HISTORICAL QUARTERLY
this notable case was affirmed by the supreme court, the rule of reason for the first time appeared in the majority opinion as a dictum. His opinion in this case attracted the attention of the country and of the public press.
Shortly thereafter the famous Harriman merger case was argued before the eighth circuit court. In this case (188 Fed. 102), which was a suit by the government against the Union Pacific and Southern Pacific contract, Judge Hook stood alone and dissented from the majority opinion which held that there was no violation of the statute. Judge Hook's opinion was most forceful, as the following extract shows:
The combination was effected through the purchase by the Union Pacific of part of the capital stock of the Southern Pacific. Upon this two important questions arise. The first, which is one of law, is whether the purchase by one railroad company of corporate stock of another, less than the majority, but sufficient in amount according to the practical experience of men to enable the purchaser to dominate or control the policies and operations of the other, is a form of combination within the prohibitions of the Sherman act. The conclusion of the court being against the government on another ground, it was unnecessary to determine this question; but as I do not assent to the conclusion, and as the question lies at the threshold of the government's case, I should briefly express my view concerning it.
There is no substantial difference between the holding of the corporate stocks of two companies by a third, such as was condemned in the Northern Securities Case, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679, and the holding by one of those two of the stock of the other. The form is somewhat different, but the effect, which is the chief concern of the law, is the same. If prior competition disappears as a direct and natural result, trade and commerce are restrained. If it is unlawful in one case, it must be so in the other. It would be idle to hold that, while two competing railroad companies cannot lawfully submit to a common control through a separate stockholding organization, they may do so by dispensing with that medium. That would be regarding shadows and letting the substance go. The language of the Sherman act in this particular is broad. It covers every contract and combination in restraint of interstate and foreign trade or commerce, whether in the form of trust or otherwise. The essential, effective character of the arrangement is to be regarded rather than its casual vestiture; the substance, rather than the form. In Harriman v. Northern Securities Co., 197 U. S. 244, 297, 25 Sup. Ct. 493 49 L. Ed. 739, it was assumed that the act could be violated by the direct holding of stock of a competing corporation.
I grant it is a serious thing to disturb a great business transaction like that shown in the case at bar; but, given the power of congress to legislate, and clear words to express what a judge conceives to have been its purpose, his duty is plain, whatever he may think of the wisdom of the law. Even if public regulation is believed to be a wiser solution of the important economic problem than enforced competition, with its necessary wastes and burdens, nevertheless his judgment of a law embodying the latter policy should pro
LEE: WILLIAM C. HOOK 75
ceed as with distinct approval of its selection. It is quite clear that, with the growth and development of governmental regulation of common carriers engaged in interstate commerce, there is decreasing reason for holding them subject to the Sherman act, and it may be that as regards rates of transportation the Interstate Commerce Commission could perform its duties with equal justice to the public and greater justice to the railroads if they were released. But certainly that is for congress, not the courts. The judicial function is properly exercised when the Sherman act is construed and applied as though it were the only legislative remedy on the statute books.
The other question in the case is decided by the court against the government. It is whether the two great transportation systems, the Union Pacific and the Southern Pacific, were, in a substantial sense, competitors in interstate and foreign commerce. This question involves the relative location of their lines on land and sea, and not only the parts they actually performed, but also those they were naturally capable of performing, in the movement of traffic. Albeit in part within the domain of judicial knowledge, this seems to me to be a pure question of fact. Some hundreds of witnesses, practical railroad men and shippers of wide experience, testified upon it, and a great mass of evidence was taken, showing almost without dispute that, using the term "competition" as business men understand and use it, there was active, vigorous, and substantial competition between the Union Pacific and the Southern Pacific before the former obtained control of the latter. But the court holds the question of competition to be one of mixed law and fact, not determinable by the evidence alone, and as such it is answered against the government.
Reduced to its simplest terms the conclusion of the court that the two companies were not competitors and the Sherman act was not violated is based on these two grounds: (1) Trade and commerce were not restrained, because before the combination the competitive interstate and foreign traffic of the two railroad companies was not a substantial percentage of their total traffic, including in such total the traffic entirely within the several states, over which congress had no control. (2) Trade and commerce were not restrained because before the combination one of the lines of railroad, the Union Pacific, was an intermediate one in a through route, and depended for competitive traffic upon the business interests of connecting carriers, and therefore could not by itself alone, unaided by the concurrence of its natural allies, make a joint through rate over the entire route. In other words, each party to a contract or combination between railroad companies, which the government assails as being contrary to the Sherman act, must have owned or controlled an entire through route over which competitive traffic moved. That it may have performed an essential part, or have been a necessary factor, in the transportation, is insufficient. That connecting carriers may have voluntarily joined it in making through rates for the traffic is immaterial. (United States v. Union Pac. R. Co. et al., 188 Fed. 102, at 120, 121 and 122.)
So forceful was this opinion, so logical and clear-cut that the attorney-general of the United States later stated it was the sole reason why he appealed this case to the United States supreme court. The United States supreme court reversed the eighth circuit court
76 THE KANSAS HISTORICAL QUARTERLY
of appeals, and upon the grounds set forth by Judge Hook. As a matter of fact, his dissenting opinion might well be the opinion of the supreme court in the case, so harmonious are they. It will be remembered that the government at this time, during President Taft's administration, was quite concerned with the question of monopoly, and Judge Hook's opinion in this case had perhaps more to do with President Taft's high regard for the man than any other opinion which he rendered.
As soon as Justice Brewer died, on March 28, 1910, followed very shortly by the death of Chief Justice Fuller, on July 4, 1910, there was an immediate public demand for the promotion of Judge Hook. After a careful investigation of the many eminent men who were recommended to the President for this position, the President determined to appoint Judge Hook to succeed Judge Brewer. He went so far as to authorize a prominent Kansan (who was then in the federal service and much interested in the promotion of Judge Hook) at the White House Saturday morning, to wire Judge Hook that his name would be sent to the senate on the succeeding Monday noon. The wire was sent, but, on the succeeding Monday noon Judge Hook's name was not sent to the senate for confirmation. It was Judge Willis H. Van Devanter, also a judge of the eighth circuit, who was nominated for the vacancy. Associate Justice Edward Douglas White of Louisiana was nominated for chief justice to succeed Chief Justice Fuller. Long afterwards the story became known. Saturday afternoon, Senator Clark of Wyoming, then chairman of the Senate Judiciary Committee, and Senator Warren of Wyoming, who was then serving his twentieth year in the senate, went to see the President on behalf of Judge Van Devanter, also of Wyoming. The Kansas senators, Curtis and Bristow had no such seniority. President Taft was very much interested in the promotion of Justice White and there seemed to be objections to the promotion on account of the fact that he was a southern Democrat, a Catholic and a former Confederate soldier, to say nothing of his age. The Wyoming senators thought that the objections to White might be overcome. It is said that President Taft later explained that the abilities of Hook and Van Devanter were equal, that either would make a splendid justice, and that if the promotion of Van Devanter would secure the confirmation by the senate of White as Chief Justice, he thought it advisable to promote Van Devanter.
On October 14, 1911, Associate Justice John Marshall Harlan of the. United States supreme court died, and once more the President
LEE: WILLIAM C. HOOK 77
was faced with the question of a successor. Within less than a month it was announced that the President was considering Judge Hook, Walter C. Noyes, United States circuit judge for the second circuit, Francis J. Swayze, justice of the supreme court of the state of New Jersey, and Frank H. Rudkin, United States district judge of the state of Wisconsin. The press considered it very significant that two of the names upon the President's list had figured in important anti-trust suits, Judge Noyes in the American Tobacco Co. case and Judge Hook in the Standard Oil case. On December 19, in a special dispatch to the Boston Herald, it was stated that,
Information from reliable sources to-day is to the effect that President Taft has practically determined to appoint Judge William C. Hook of Kansas, now on the bench of the eighth United States circuit, to the vacancy in the supreme court caused by the death of Associate Justice John M. Harlan.
There is still some chance that the appointment may go to Charles Nagle Secretary of Commerce and Labor. It is understood that Attorney-general Wickersham has endorsed the candidacy of Secretary Nagle with exceptional vigor, and is making a great effort to secure his colleague's promotion.
President Taft has a distinct fondness for Judge Hook, whom he estimates highly. Moreover, he has made a personal study of the more important opinions rendered by Judge Hook, and is in accord with them. The President was much pleased with the opinion written in the Standard Oil case, and liked even better Judge Hook's dissenting opinion in the Harriman merger case.
From that date until December 30 there were frequent reports in the press that the President had determined to appoint Judge Hook, although it was stated that the attorney-general was strongly for Nagle. Secretary of Commerce and Labor Nagle, however, was sixty-two years old, and President Taft had announced that he would appoint no justices to the supreme court who were over sixty years of age. (He made only one exception to that rule, the promotion of his former colleague of the fifth circuit, Judge Lurton.) Judge Hook was only fifty-four years of age and in the full sweep of his powers.
On December 30, however, protests against the appointment of Judge Hook from the Corporation Commission of Oklahoma were sent to the President, and Governor Aldridge of Nebraska announced that he would at once wire a protest against the appointment. Then the Minnesota Railroad & Warehouse Commission protested. The chairman of the Kentucky Railroad Commission joined in the protest and Senator Gore of Oklahoma made a most virulent speech against Hook. Notwithstanding these facts, the press announced on December 30 that the President had decided to name Judge
78 THE KANSAS HISTORICAL QUARTERLY
Hook, and two Western senators quoted the President as saying, "It's no use. I have decided on Judge Hook for this appointment."
The opposition to Judge Hook at this time came almost entirely from more or less radical railroad commissioners who were opposed to Hook on account of the fact that he had granted a temporary injunction against the enforcement of the Oklahoma two-cent rate upon a proper showing therefor, the injunction being later sustained by the circuit court of appeals, and by the United States supreme court in that it refused to grant certiorari in the case. At the same time, the radical press announced that he was the candidate of great railroad corporations. This was extraordinary, because in 1899, when Hook was first appointed to the bench by President McKinley as a staunch gold man, it was the railroads-Bailey P. Waggener, general counsel for the Missouri Pacific; M. A. Low, general counsel for the Rock Island; A. A. Hurd, general counsel for the Santa Fe, and Archibald Williams, general counsel for the Union Pacific-who had fought his appointment so vigorously and had tried to secure the appointment of Chief Justice Horton of the Kansas supreme court, and in 1910, there was some complaint against the promotion of Judge Hook to the supreme court, on the ground that he was not sound enough from the corporation point of view. Before his appointment to the bench, Hook had been very successful in suits against the railroads. Indeed, it is said that there were protests in Washington from Wall Street about the appointment of the Kansas "Populist," and now the radical press and radical politicians were condemning Hook as being the friend of Wall Street. The truth about the matter, of course, is that he was a well-balanced judge and neither a pro- nor an anti-corporation man.
Notwithstanding these protests the President had determined to appoint him, but at the last minute and on the very day when his name was to have been sent to the senate, a new protest was made. On January 31, the Massachusetts branch of the Massachusetts Political League and the New England Suffrage League, interested, in equal rights for negroes, protested Judge Hook's appointment on the ground that he had rendered a decision in the 186th Federal denying negroes the same rights in traveling as other Americans and upholding the Oklahoma Jim Crow car law. An assistant United States district attorney, the negro appointed by President Roosevelt, was very active in the fight against him on this ground. Although the plaintiff in the Jim Crow case and the attorneys for the plaintiff in that case all wired the President that they were not opposed to
LEE: WILLIAM C. HOOK 79
Judge Hook's promotion and considered him to be the friend of the negro, Taft determined not to appoint Hook and suddenly appointed Mahlon Pitney of New Jersey on the 20th day of February, 1912. The facts in regard to the Jim Crow case were that Judge Hook concurred in an opinion by Circuit Judge Adams which dismissed a suit by McCabe against the Santa Fe to enjoin the railroad from obeying the law requiring every railroad company doing business in Oklahoma. as a common carrier to provide separate coaches for the accommodation of white and negro passengers equal in all comforts and conveniences. Judge Adams said that the statute did not violate the fourteenth amendment to the constitution of the United States, and that the enforced separation of the negro race from the white race in railroad cars and waiting rooms did not deny to it the equal protection of the laws, because the supreme court of the United States in Plessy v. Ferguson, 113 U. S. 537, 41 L. Ed. 256, had foreclosed further discussion. There was, however, a proviso to section 7 of the act, which read as follows:
Provided that nothing herein contained shall be construed to prevent railroad companies in this state from hauling sleeping cars, dining or chair cars, attached to their trains to be used exclusively by either white or negro passengers, separately, but not jointly.
Judge Adams thought that such accommodations were luxuries, and that the ability of the two races to indulge in such luxuries were so dissimilar that the railroad companies might find it profitable to supply them for the white race and not profitable to supply them for the colored race. Judge Sanborn dissented, believing that the statute abridged the privileges and immunities of the colored citizens of Oklahoma and deprived them of the equal protection of the laws.
The furor made by this decision determined the matter against Judge Hook, in spite of all that Senator Curtis and Representatives Anthony and Campbell could do, and in spite of the fact that even the Progressive Senator Bristow and the Progressive representatives in congress from Kansas either endorsed Hook or at least. did not join in the protests against his appointment. Representative Fred S. Jackson, who as attorney general of Kansas, had conducted much anti- corporation business before Judge Hook, announced that he had always found the Judge fair and impartial. It is interesting to note that although the nomination of Chancellor Pitney was kept a dead secret until the day that he was nominated, namely, February 20, there were immediate and many protests as soon as the
80 THE KANSAS HISTORICAL QUARTERLY
selection became known. It is also interesting to note than when Charles Evans Hughes (the present chief justice of the United States supreme court) was governor of New York, he had vetoed the two-cent law without arousing the same animosity against his appointment as accompanied the announcement of Hook's pending appointment. The matter was so close that the National Tribune stated,
If the senate week before last had not adjourned Thursday over the following Monday, probably Judge Hook would now be upon the supreme bench and attending to his duties as an associate justice there.
"Well, I will appoint Hook," the President said to a senator who was much interested in the matter and who had been to the White House to see him about the nomination several times. "I will send it up right away."
That was Thursday morning. The President's statement meant that he would send the nomination in that day, or the day following. But the senate met at two o'clock Thursday afternoon and after a little adjourned to the following Monday.
In the meantime somebody dug up a decision by the federal court of the eighth circuit whereby Judge Hook upheld the Oklahoma statute providing for Jim Crow cars. The Judge did not write the decision himself, but approved one written by Judge Sanborn, so that Hook and Sanborn made a majority of the court of three members. The negroes got wind of that decision and by Saturday protests from negroes were pouring in upon the White House. By Monday, when the senate first convened, a great storm was brewing among the colored brethren of the country.
Shortly thereafter the 1912 Republican National Convention took place and the following November the great Roosevelt-Taft fight resulted in the election of Woodrow Wilson.
In 1915 Judge Hook built the great monument of his judicial career. For more than three years the Metropolitan Railway system of Kansas City, Mo., had been in the hands of receivers. It was on June 3, 1911, that Judge Hook had appointed Robert J. Dunham, of Chicago, and Ford F. Harvey (of the Fred Harvey system), of Kansas City, as receivers for the Metropolitan Street Railway Co. and its allied companies, the Central Electric Railway Co. and the Kansas City Elevated Railway Co. The receivers operated these companies for more than four years, vainly trying to reach an agreement with the attorneys representing the various interests for the reorganization of the company. In the course of the receivership Judge Hook had increased the pay of the street railway employees, without being petitioned to do so, as a matter of justice to the employees, and had also taken steps to improve the service. At the time that the bonds were issued, the law required the maintenance of
LEE: WILLIAM C. HOOK 81
streets between the tracks and twelve inches outside of the rails, and this had been sadly neglected by the company itself, thus giving rise to the city's claim that the obligation to maintain was ahead of the specific lien of the bonds. During the receivership there had been much dissension between the representatives of the city and the receivers with regard to the maintenance and improvement of service, including among other matters, a dispute as to the necessity for connecting traffic across the Twelfth street viaduct with the Street Railway Co. of Kansas City, Kan. Finally, on June 4, 1913, the receivers reported to Judge Hook that no agreement could be reached, and appealed to him to arbitrate the differences between the city and the receivers. In this appeal to arbitrate the mayor joined. The result of the Judge's efforts was a new franchise in 1914, granted by the city, conditioned upon a reorganization which would meet with the approval of Judge Hook. There was a tremendous dispute between the holders of different classes of securities, the representatives of tort judgment creditors and the representatives of stockholders committees as to the terms of the reorganization, and Judge Hook himself drafted a plan of reorganization which was presented to the various representatives of the various interested parties in Chicago on July 27, 1915. The plan did not meet with the approval of the bondholders, as Judge Hook had determined to protect stockholders' equity and the public interest. When it came, however, to the point of giving up the new franchise of 1914 or approving of the essential principles of Judge Hook's plan, it was, of course, promptly approved by the bond holders. The electric-light company was divorced from the street railway company, the New Jersey holding company was abolished, and under the terms of the plan, the stockholders and the city itself reaped the benefit of the liberal provisions of the 1914 franchise which, for the first time in the history of American utilities, guaranteed the mortgages underlying the bonds to the end of the term of the franchise. This reorganization was so novel as to attract the attention of legal scholars and those interested in civic matters, in addition to that of judges and lawyers.
James N. Rosenberg, of New York, in an article in the Columbia Law Review for November, 1920 (20 Col. Law Review, p. 735), entitled "The Ætna Explosives Case," wrote:
Up to the time the Ætna case came into court the most notable blazing of the way toward a sound economic handling of reorganization was, it is believed, that done by Judge William C. Hook of the United States court for the eighth circuit. The Missouri Pacific reorganization (138 Fed. 812)
82 THE KANSAS HISTORICAL QUARTERLY
was before him in 1916, and in one of the litigations that arose in that case he had said:
"It has sometimes been claimed that plans of reorganization formulated by bondholders and stockholders of a railroad in the hands of receivers are exclusively of private concern, free from judicial action or interference. But for various reasons the view cannot be sustained in principle. After all that can be said from the standpoint of theory and strict right, the fact remains that many railroad receiverships, and the one here is typical of them, are but instruments for consummating plans of reorganization, and courts have come to realize that such use of their jurisdiction and processes entails a correlative duty to those affected by the result. . . The relation between the receivership . . . and the plan of reorganization agreed upon is close and intimate. So far as properly can be, the judicial proceeding is conducted in harmony with the plan, and the success of the agreed readjustment is promoted by the orders of the court and the acts of its receivers. Generally the judicial course would not be different if the court were carrying out a plan of reorganization of its own making or one affirmatively adopted by judicial order or decree. . . While it is the settled doctrine that reorganizations will be encouraged, yet, on the other hand, a court of equity will not lend its aid to one that is inequitable or oppressive. . . The conclusion is manifest that the general duty of a court in a railroad foreclosure suit to take cognizance of a plan of reorganization by the bondholders and stockholders which is to be aided by its decree, and to protect the equitable rights of all, becomes specific and imperative upon the complaint of an interested party."
So successful was Judge Hook's handling of this receivership that when the Kansas Natural Gas Co. litigation arose and Judge Thomas J. Flannelly, now of the Prairie-Sinclair Co., but then judge of the district court of Montgomery county, Kansas, appointed state receivers and other parties took the case before the federal court, Mayor Edwards of Kansas City, Mo., begged Judge Wilbur Booth, of the eighth circuit court of appeals, to take charge of the situation and settle it in the same way and along the same lines as Judge Hook had terminated the Street Railway Co. receivership.
Judge Hook was also concerned in other important reorganizations and receiverships, including amongst others, the reorganization of the Terminal Railroad Association of Saint Louis, the Denver Water Works Co., Vulcan Sheet Metal Co., and during the war, the Missouri Pacific receivership, in which his rulings on the matter of the Kansas City-Northwestern intervention were praised by the Yale Law Journal as a landmark in receivership proceedings, and the Missouri-Oklahoma Gulf Railroad Co. Most of that company's bonds were owned in Belgium and France, and on account of the war beyond the seas, the owners of those securities were largely not represented in court. It was due to Judge Hook's protecting hand that their rights were secured just as though they had been represented in court before him in the reorganization of the company.
LEE: WILLIAM C. HOOK 83
The last great decision of Judge Hook which attracted nationwide attention was his ruling on November 22, 1916, that the Adamson eighthour act was unconstitutional. It was in the course of his receivership of the Missouri-Oklahoma Gulf Railroad' that this ruling was made. It is quite true that the United States supreme court reversed this ruling of Judge Hook and upheld the constitutionality of the act, but many lawyers to this day feel that the reversal might not have obtained under other circumstances, and that Judge Hook's ruling was correct.
Judge Hook's opinion in the Standard Oil case was largely written at Plum Lake, in the beautiful lake district of northern Wisconsin. Here, about 1900, he had built a slab cottage on a point jutting into the lake and almost inaccessible by land. Later he built a log house of the large pine trees cut principally from his own property. The French windows on three sides of the first floor of the house looked out upon the lake or the adjoining pine grove, and on the fourth side was a great fireplace, many stones of which were sent to the judge by his friends from all parts of the United States.
Occasionally lawyers interested in the various railroad receiverships which the Judge was conducting, would come to his home at the Lake to present various matters and secure various orders. At these times, court was held in the pine grove and justice rendered far away from the noise of the city.
When he arrived, in July, at the Lake he usually brought with him some four or five government mail sacks of briefs and records. While he was on vacation, the Judge usually spent his mornings at his library in the cabin working on the briefs and records which he had brought with him. His afternoons on vacations were partly spent in the planting and cultivation of his beautiful flower garden which thrived luxuriantly in the damp, sandy soil of a knoll not far from the house. Judge Hook took pride in his flowers, knew their botanical names, and himself did almost all the work of their cultivation.
This sketch of Judge Hook would not be complete without a description of his personal qualities and appearance. He was moderate and temperate in his habits. Although slight in physique, he had great physical endurance, which matched his great and effective mental and nervous strength. His appearance indicated physical and mental alertness, energy and determination.
Herbert S. Hadley once of Kansas and later governor of Missouri, in his book entitled Rome and the World To-day, said:
84 THE KANSAS HISTORICAL QUARTERLY
The Romans glorified courage, steadfastness, virtue, and that significant quality of the mind and heart which is described by the word gravitas. It is probable that the same process of racial development produced the Romans as has produced our own people. I believe it can be said that there is a striking resemblance between the busts and statues of the leaders in Roman history of the later years of the Republic and the early Empire and many of the public men of the United States a generation ago. I knew a former federal judge who could have sat for a bust of Julius Cæsar.
In mentioning a federal judge, Governor Hadley was referring to Judge Hook.
Some of the description of Julius Caesar in Froude's Cæsar, is especially applicable to a description of Judge Hook's physical appearance: "In person, Caesar was tall and straight. His features were refined. The forehead was wide, high, the nose large and thin."
While, perhaps, not a man of striking appearance, yet Judge Hook was a man whose face and features were always remembered.
Judge Hook was buried at his old home in Leavenworth, Kan., but services were held at his summer home in Wisconsin, in the beautiful pine grove on Plum Lake for those of his many friends who had known him there for a generation. The late Dr. Thomas W. Goodspeed, of the University of Chicago, presided at the services. In speaking of his old friend, Dr. Goodspeed quoted from the 92d Psalm, saying: "The righteous shall flourish like the palm tree; he shall grow like a cedar in Lebanon," and then said, "Verily, my friends, one of the Cedars of Lebanon halt this day fallen in our midst." This might have been paraphrased, in the writer's judgment, by saying, "One of the tall pines has fallen."
In the memorial of the proceedings before the eighth circuit court of appeals on September 5, 1921, having to do with Judge Hook, it was ordered that a committee consisting of Mr. C. W. Bunn, chairman, Saint Paul, Minn., Mr. Frank Hagerman of Kansas City, Mo., Mr. Edward J. White of Saint Louis, Mr. John H. Atwood of Kansas City, Mo., partner for many years of Judge Hook, and Mr. George H. Williams of Saint Louis, later Senator Williams, should present suitable resolutions at a session to be held on December 5, 1921, at which Judge Sanborn presided. There was talk amongst the lawyers attending the memorial meeting of Judge Hook's manner while upon the bench. It was said that his manner upon the bench was ideal, that it happily blended dignity and courtesy, that he always gave patient attention to an argument, that he grasped the point of counsel with great rapidity, and that while reserved
LEE: WILLIAM C. HOOK 85
and somewhat aloof, his gentleness to an inexperienced practitioner created a real affection for him, and yet, that Judge Hook was firm. When John F. Phillips, former United States judge of the district court of Missouri, who frequently sat upon the court of appeals with Judge Hook, was presenting the Kansas Natural Gas litigation in Denver before the eighth circuit court of appeals on October 1, 1913, he constantly interrupted John S Dawson, then attorney-general of Kansas and now a valued member of the Kansas supreme court, who was arguing the case for the state. Among other things he complained that the attorney-general be required "to read the whole paragraph in the brief," or some such similar matter. Judge Hook mildly replied, "Maybe he doesn't wish to read it. It is his argument. Let him proceed in his own way." Finally Judge Hook, in a manner which could not be mistaken, turned to the attorney-general and said: "Mr. Attorney-general, in making further statements you will address the court alone and pay no attention to any one who interrupts you," turning at the word, "interrupt" toward his former colleague.
Perhaps this sketch of the learned judge and citizen of Kansas who attained such great distinction and high place in the federal judicial annals of our country, can best be closed by a quotation from the response of Judge Sanborn, the presiding judge on the occasion of the memorial of the eighth circuit court of appeals in memory of Judge Hook:
He was endowed with an extraordinarily powerful intellect, as keen as a Damascus blade; a wise and imperious will, to whose behests every movement, emotion and passion of his mental and physical being bowed with reverential deference; with a cautious, sound judgment, and with an impartial considerate temper. His mind was stored with a profound and accurate knowledge of the law, an inexhaustible fund of general information, a comprehensive and intimate acquaintance with general literature, a refined and artistic taste, and gifted with a canny, experienced insight into the objects, intents and purposes evidenced by the acts and sayings of men.
1. Address by the president, Thomas Amory Lee, before the Kansas Historical Society, at its fifty-eighth annual meeting, October 17, 1933.