Georgia Enters the Fray
Georgia Enters the Fray
Abstract and Keywords
This chapter describes how frustration was eating up Georgia farmers in the Ducktown Basin. Each growing season brought another round of dismay as acid from the smoky clouds killed the fruits of their labors on the stalk, the vine, and the branch. It was bad enough to suffer the damage; it was worse for the farmers to know that they could have profitably sold all of their produce to the miners if only they could grow it. Added to this was the realization that their efforts to fight the smoke problem in the Tennessee courts were, for the moment, going nowhere. After five or six years of litigation in Tennessee, it was obvious to the smoke suitors that they were being ground into sausage and that the company lawyers were turning the crank.
In 1903 Georgia farmers in the Ducktown Basin were beside themselves with frustration. Each growing season brought another round of dismay as acid from the smoky clouds killed the fruits of their labors on the stalk, the vine, and the branch. It was bad enough to suffer the damage. It was worse to know that they could have profitably sold all of their produce to the miners—if only they could grow it. Added to this was the realization that their efforts to fight the smoke problem in the Tennessee courts were, for the moment, going nowhere.
Ambrose Bierce, a contemporary journalist, self-described cynic, and author of The Devil's Dictionary (1911), defined litigation as “a machine which you go into as a pig and come out of as a sausage.” After five or six years of litigation in Tennessee, it was obvious to the smoke suitors that they were being ground into sausage and that the company lawyers were turning the crank. James G. Parks, counsel for the Ducktown Sulphur, Copper & Iron Company (DSC I), and Howard Cornick, his counterpart for the Tennessee Copper Company (TCC) had outmaneuvered them at almost every turn by applying their considerable legal skills, bolstered by the resources and power available to them as corporate attorneys. In the Polk County Circuit Court, their strategy of “keeping a blocked docket” had prevented all but a few cases for monetary compensation from reaching juries. In the Polk County Chancery Court, they blocked the farmers' repeated attempts to abate the smelter smoke. Each of the petitions for injunction against the copper companies languished in seemingly endless rounds of appeal.1
The copper companies had also won key legislative battles in Nashville. With the active support of corporate counsel and lobbyists from the railroads, they changed the common law of nuisance in favor of industry. The new law required chancery courts to employ the balancing-of-interests test when ruling upon petitions to enjoin smokestack industries. Now, the dollar impact of industrial smoke upon the operations of typically modest mountain farms had to be weighed against the economic consequences of an injunction—the millions of dollars invested in plant and equipment, the number of employees and households dependent upon industry wages, and the general economic impact of a closure. Another statute hindered cash-poor (p.82) Georgians and North Carolinians from initiating suits in the Tennessee courts by prohibiting out-of-state litigants from filing in forma pauperis. They now had to spend scarce dollars to post a bond for costs at the commencement of suit.
Parks and Cornick defended their clients almost too well. Georgia litigants concluded that they had little or no effective recourse in the Tennessee judicial system and instead voiced their complaints to more sympathetic ears in their home state. If individual Georgia mountaineers were outmaneuvered by corporate powers in Tennessee, the obvious solution was to cajole the powers in Atlanta to continue the fight in a more favorable venue with legal resources that only the state could wield. Or, to return to Bierce's definition, Georgians wanted a different sausage grinder, one that was capable of grinding up corporations, with the strong right arm of their home state at the crank.2
It was not clear, as a matter of law, what Georgia could do about cross-border smoke pollution. Given the lack of federal and state antipollution legislation at the time, the issue appeared to be governed by the common law of nuisances, yet it remained an open question whether the ancient principles encompassed an action by one state to enjoin pollution generated by individual or corporate citizens in another state. It was a problem of historical scope. English law lords developed the principles of nuisance law in a nation where sovereign power rested ultimately in the Crown, as tempered by the powers of Parliament. Unified sovereignty over England and Wales favored the consistent formulation and administration of nuisance law throughout the realm from Kent to Cumberland.
Ducktown smoke blew over a different legal landscape, encompassing three sovereign states, each with its own judicial system and legislature, and each jealous to maintain its prerogatives against neighboring states. A state's judicial and legislative power was nominally commensurate with its geographic borders. Yet the cross-border realities of commerce, crime, and now corporate smoke pollution confused the clarity promised by lines on a map. Smoke clouds, and the winds that moved them, did not respect state lines. Issues of interstate jurisdiction were further clouded by national sovereignty whereby each state shared sovereign authority with a federal government that operated its own courts and legislature. The confused interplay of federal and state jurisdiction created a complicated constitutional struggle marked by endless litigation, even a civil war, to determine the respective powers of the states versus Washington, and the states vis-à-vis each other.
(p.83) Divided sovereignty gave rise to a number of fundamental questions: Did Georgia have the power to compel corporate citizens in Tennessee to abate the production of poisonous fumes that drifted over the common border? Could the matter be litigated in Georgia courts? If not, did the federal courts have the power to provide an effective remedy? What role could or would the U.S. Supreme Court play in the matter? The answers to the questions involved arcane issues of civil procedure—the law of how and where cases are to be tried—concerning such topics as jurisdiction, venue, justiciability, standing, pleadings, and motions. They were the sort of issues that a law professor might pose to befuddled law students. There were also serious questions about the central claim—what lawyers call substantive law, as in the substance of the case—that needed to be answered. The most important question was whether Georgia had a legally recognizable interest in the fight over Ducktown smoke. Nuisance law turned upon the violation of property rights, but the state of Georgia long ago disposed its northern holdings to private citizens in the 1832 lottery of Cherokee lands. Did it retain sufficient property interests to have a legally recognized stake in a nuisance case? If not, could Georgia obtain relief under some other theory? All of the questions, both procedural and substantive, would eventually be addressed at length by lawyers and judges during the course of Ducktown smoke litigation.3
In the meantime, the suffering farmers and timber owners in Georgia were neither lawyers nor law students, and their patience with abstruse legal principles had long since been exhausted in their as yet futile private cases in Tennessee. They demanded a political solution. To that end, citizens from the mountain counties circulated petitions to Governor Joseph M. Terrell and goaded their delegation in the General Assembly to action. Mercer Ledford, a state senator from Union County, located just east of the heavily damaged Fannin County, heeded the call. Lacking a solution to all of the bedeviling legal issues, he employed a time-honored maneuver that gave a positive response to his constituents without encumbering the legislature with any real responsibility to solve the problem: he proposed a resolution for a study commission. Fellow legislators quickly grasped the wisdom of this approach. The measure easily passed in both the House and the Senate and was enacted on August 17, 1903, as Resolution No. 47.4
The document began with two recitals (the “whereas” clauses), the first noting that “it has been represented that great and irreparable damage has been, and is being done to the timber, fruits, and agricultural interests in the counties of Murray, Gilmer, Fannin, Union, and Towns” by the “smoke and (p.84) fumes produced by the smeltering of copper ores” in Ducktown. The second recital declared that “some steps should be taken looking toward the suppression of this evil.” The text continued with two resolutions. One called for the creation of a five-member commission consisting of the commissioner of agriculture, the state chemist, the state geologist, and two citizens to be named by the governor. They were to investigate “the damage already done and the damage likely to be done” and then to report their findings to the governor. The other resolution charged the governor, upon receipt of the report, “to take such steps as shall be deemed proper and necessary to correct this evil and to prevent future damage.”5
Governor Terrell embraced the resolution. He was young for a governor, entering office at age forty-one, full of the vigor and zeal that enabled him to earlier serve ten successful years as attorney general. In that office, he proved his skills as a litigator on criminal and civil matters. He won all twelve of the cases he argued before the U.S. Supreme Court in a series of death penalty appeals, business tax disputes, and railroad regulatory matters. As governor, he demonstrated a progressive bent with enactment of a pure food and drug law, the creation of the state court of appeals, and laws to limit child labor and to curb agricultural speculation. The Ducktown resolution provided him with an opportunity to lead the state in another legal battle—this time on a progressive crusade against smoke damage.6
Not one to dally, Governor Terrell named the commission members only two days after enactment of the resolution. It was a well-balanced team designed to be responsive to investigative and political needs. Commissioner of Agriculture O. B. Stevens held his post by popular election in a state where the farm population still outnumbered the urban citizenry. His presence on the commission gave it political heft. The other designated members, State Chemist John M. McCandless and State Geologist W. S. Yeats, were trained specialists who gave the group scientific credibility. For the at-large members, Governor Terrell named two North Georgians, J. H. Witzel, the ordinary (probate judge) of Fannin County, and W. E. “Buck” Candler, a prominent citizen of Union County, to represent local interests.7
Altogether, the terms of the resolution and the composition of the commission demonstrated the understanding that Ducktown smoke posed its greatest threat to the vitality of the agricultural and timber economy in the mountains. The political machinery of the state had thus moved to protect livelihoods and the economically valuable natural resources of wood, water, and soil rather than natural beauty, wildlife populations, or what later generations would describe with terms such as the environment, ecology, and (p.85) ecosystems. In 1903 Georgia's mountain farmers and loggers were the endangered species deserving the aid of the state, not the wild creatures of the woods and waters.
Despite its weighty and urgent charge, the commission moved with less dispatch than the governor, allowing two months to pass before making its investigative tour of the mountain counties. The growing season was over and the leaves had fallen by the time they arrived in late October. If they failed to observe growing crops and leafy trees, they saw enough to conclude that the copper works “are hourly, daily damaging and destroying vegetable life … for miles within the boundaries of this state.” They built a lengthy record based on personal inspection of smoke-damaged farms, a view of the mine works, and meetings with afflicted farmers. On that basis, they warned that unless current practices stopped, “a large area of farming and timber country within the limits of the State will certainly be destroyed and lost to the present owners.” The observations, though dramatic, were to be expected given the well-publicized scale of the smoke problem. The more surprising language came in the conclusion, where the commissioners opined that “it is better that this industry should be entirely annihilated than that the present intolerable conditions should continue.” This was the first official declaration that Georgia's entry into the Ducktown smoke wars threatened the continuity of Ducktown's copper industry.8
Wilmon Newell, the state entomologist, was not a member of the commission but toured the region that same month to provide another scientific appraisal at the request of Governor Terrell. Upon arrival, Newell traveled the basin with Judge Witzel and three local farmers, A. B. Dickey, J. W. Anderson, and J. Wilson. The farmers, all from the Hot House Creek area that extended from Fannin County, Georgia, into North Carolina's Cherokee County, were locally prominent men who each had private smoke cases languishing in the Tennessee courts. Dickey had emerged as spokesman for the Hot House community through his frequent demands and explanatory letters to Judge Parks, the trial counsel for the Ducktown Sulphur, Copper & Iron Company. Together, Witzel and the farmers made sure Newell saw their own damaged lands and guided him to the blighted farmsteads of their neighbors.9
The tour allowed the entomologist to note the concentric zones of destruction extending from the DSC I works in Isabella and the Tennessee Copper Company works at Copperhill. In the first zone, with a radius of two miles, sulfurous acid “has removed from the country all traces of vegetation, save an occasional patch of Bermuda grass.” Within four miles of the works, “all forest trees … are destroyed and the earth devoid of practically (p.86) all vegetation except broom-sedge.” In the next zone, extending to five or six miles, “50 to 75 per cent of all timber is dead,” and beyond that, areas of smoke damage could be detected ten to twelve miles from the refinery. Worse, “the area of devastation is steadily increasing.” The zones of destruction correlated to the presence or absence of agriculture. Newell reported that “in the area already denuded of forest growth no attempt is made to grow crops”; in fact, it “is totally abandoned except by the employees of the copper-mining companies.”10
Newell then applied his entomological training to the question of whether the trees died from insect infestation or diseases as opposed to damage from sulfur fumes. He cut down and examined trees, both dying and dead, to examine the insect populations within them. There was little evidence of insect infestation. Instead, the insects he observed “are of species which feed upon dead vegetable matter and are therefore not responsible for the death of the trees.” Newell determined that “possibly the death of one tree out of every five hundred dead is chargeable directly or indirectly to insect work,” a rate well within normal occurrence in healthy smoke-free forests. If insects did not kill the trees, neither did fungal diseases. No signs of fungal growth appeared upon examination of the roots. Observations pointed instead to death from sulfur fumes. Healthy trees could withstand insect infestation for extended periods and often put out suckers from the trunk and roots. The smoke-damaged trees in Ducktown did not put out suckers, and instead the “root, trunk, and branches are killed at almost the same time.” The cambium layer (the cell forming tissue) of smoke-damaged trees “becomes blackened before the tree has succumbed to the poison.”11
His findings represented the first scientific examination of Ducktown smoke damage. Before his study, litigants and judges in the Tennessee courts had conceded to the damaging effect of smoke upon crops and timber. Just as they interpret the weather, people could experience and react to the smoke without understanding the related science. Everyone could see and smell the smoke. They saw it blot out the sun on frequent occasions. All could observe the expanding zones of denudation. These factors matured into a point of law three years earlier when the Tennessee Supreme Court declared smoke to be an actionable nuisance in Ducktown Sulphur, Copper & Iron Co., Ltd. v. Barnes (1900), a decision reached with a notable lack of scientific testimony from either side. Claimants and copper lawyers therefore gave little attention to issues of causation in the course of the private smoke suits and instead debated the extent of damage upon individual properties.12
Governor Terrell and Attorney General John C. Hart were both experienced (p.87) lawyers who appreciated that Georgia's impending lawsuit against the copper companies would recast smoke litigation upon a much greater scale, one that required a solid scientific foundation. The higher stakes of a state-initiated lawsuit required a factual basis that rested on more than anecdotal descriptions of smoke damage. The governor's appointment of Newell was the first step toward that end. The entomologist was a scientist familiar with the methods of biological field study and equipped by training and intellect to compare his findings against known biological data in the fields of entomology and botany. After employing his skills to rule out insect infestation and fungal diseases, he concluded that “many square miles are being denuded of all forest growth and the devastation can be traced to no other agency than the sulfur fumes from the copper refineries at Ducktown and Isabella.”13
Newell then broadened his attention from a close study of bark and roots to survey the larger landscape. He added that “within a radius of ten miles … all merchantable timber, i.e. timber suitable for lumber, has already been de-stroyed” and warned that “a continuance of present conditions will convert this territory into a barren desert.” His prescient comments provided an accurate description of present conditions and future results. This was one of the first recorded applications of the term “desert” to Ducktown.14
He did not use the term carelessly. As a life scientist, he presumably understood the idea of a desert in biological terms. His use of the term in the present context stemmed from an experiential, perhaps even atavistic, appreciation of the shocking expanse of empty, barren terrain in the midst of what used to be lush Appalachian forest and farmland. In this way, he anticipated later observers who would describe the area with phrases such as “a small but extreme man-made desert” and as “the only bona-fide desert east of the Mississippi, the handiwork not of nature but of man.”15
Newell was correct about the impact of smelter fumes. A parade of scientific foresters would later testify to their toxic effect, but forest loss in the Ducktown Basin could not be attributed only to the smoke. He failed to address the impact of more than a half century of intense logging in the basin. The ax, not sulfur smoke, caused most of Ducktown's first great wave of deforestation. During the three decades of the industry's prerailroad years, fifty square miles of standing timber were converted to charcoal for consumption in the roast heaps and furnaces or were sawn into lumber for mine and building construction. Logging created an area of deforestation much greater than the zones of smoke damage around the small-scale roast heaps and furnaces of the first era. Circumstances changed by 1903, when the revived industry hit its full stride. Modern mining ran on coal and coke imported by rail rather (p.88) than on locally produced wood charcoal. That alone might have encouraged areas of forest regeneration except for the vastly greater amounts of sulfur smoke caused by the refining of high-sulfide copper ores and the much larger scale of operations. The area of denudation was expanding, but the question of how much of that was caused in the first era versus the second would remain for other investigators to determine.16
Newell returned to firmer analytical ground when he considered the consequences of Ducktown deforestation. Forest preservation was a “matter of moment” to local inhabitants and to the state at large. Stable forests “supplied the people with wood, one of the prime necessities.” Healthy forests prevented erosion and floods by absorbing runoff. Shady forests and their leaf litter preserved watersheds by keeping groundwater from drying out. The converse was also true. Newell warned that “removal of forests means rapid soil erosion” making “the land utterly useless for agriculture.” Tree loss “conduces to extremes of flood and drought.”17
Each of his comments marked him as a student well schooled in the principles of watershed conservation articulated forty years earlier by George Perkins Marsh in his landmark work, Man and Nature (1864). Marsh, a Dartmouth-educated Vermonter, was a man of remarkably wide-ranging talents and interests. Trained as a lawyer, he became a noted philologist fluent in twenty languages with a specialty in Icelandic. He was also an experienced diplomat, serving as ambassador to Turkey and Italy. Observations of barren and arid lands made during his extensive travels in the Mediterranean basin led to his insight that human conduct, specifically deforestation, could lead to disastrous consequences such as erosion, flood, drought, loss of arable land, and even permanent climate change. The roots and humus of forests, he concluded, regulated stream flow by retaining water from heavy rains. The shady forest canopy slowed evaporation within the watershed, thereby releasing water more gradually to keep streams flowing during drier periods. Marsh was a man ahead of his times; but his book soon became a foundational text for the nascent conservation movement and inspired the state of New York to create the Adirondack State Park to protect the Hudson River water-shed.18
His streamflow theories would eventually undergo serious challenge in 1908 by H. M. Chittenden, an officer in the Army Corps of Engineers, but that was in the future. For now, Newell applied Marsh's doctrines with a disciple's devotion in the hope of reversing the damage to the Ducktown mining district. Reclamation of the devastated areas was urgently needed, but he advised this “is possible only by reforestation, which under present conditions (p.89) is impossible.” The clouds of sulfur smoke had to be stopped, and if that required the closing of the mines, then so be it, for “the forest interests of Fan-nin County, Georgia, are of far more value and importance to the common-wealth than any revenue to be derived directly or indirectly from copper mining and refining.” These were bold words for a man whose primary duties involved the detection and eradication of insect pests to cotton, corn, vegetables, and fruit. The once relatively anonymous civil servant, a person inevitably called “the Bug Man,” now rose to the status of a prophet for natural resource conservation; his pronouncements were quoted verbatim in the Atlanta Constitution and the New York Times.19
The 1903 reports by Newell and by the legislative commission received generous press coverage in Georgia under headlines such as “Sulfur Fumes Destroy Vegetation in Fannin,” “Copper Fumes Killing Trees,” and a seven-column illustrated article captioned “Georgia Forests Withered by Sulfur Fumes.” In another article, published a month before the Wright brothers made their historic first powered airplane flight, an unnamed reporter imagined a flight over the blighted Ducktown Basin: “If a man were up in a balloon, hovering over the boundary line between Georgia and Tennessee, and were to take a look far down in the direction of this Ducktown, he would see a cloud of smoke that obscured the landscape, as though … a giant had laid down an enormous cigar, still burning.” Underneath that cloud “the smoke settled on trees, leaving an acid deposit like a blight and the trees shriveled and died.” It was as if the countryside “had contracted some terrible leprosy of vegetation that ate its sad way farther and farther from the point of first infection.”20
Coverage like this could have occurred only with the cooperation and encouragement of the governor's office. The Atlanta Constitution returned the favor, showing Governor Terrell and Attorney General John C. Hart at their best and busiest on the Ducktown matter. The paper gave daily mention in captioned articles, and in its political column, “Gossip at the Capitol,” of the many meetings held by the two men as they weighed the state's legal options in response to the two investigative reports. The possibilities included the state's participation in the farmers' suits for damages and injunction, or perhaps an action by the state in the Tennessee courts against the copper companies. The third and most dramatic alternative was a direct action in the U.S. Supreme Court “against the state of Tennessee for a mandamus to compel the latter to stop the destruction of property in Georgia.” The paper noted that if the latter course was adopted, it would present “an entirely new question … arising out of one of the most important provisions of the federal (p.90) constitution—that dealing with the relations of one state to another.” Such a course “will be unique, and will be fraught with interest to the legal profession all over the country; indeed, it will be of such peculiar nature as to interest lawyers in all parts of the world, for there is no other nation on the globe in which a similar action at law could be heard.” Together, the published contents of the reports and news of the evident determination of Terrell and Hart to act upon them in a constitutionally novel way combined to stir excited expectations of an interstate conflict of historic proportions.21
James G. Parks and Howard Cornick, lawyers for the two copper companies, kept abreast of news from Atlanta by means of the Georgia newspapers brought to them on the daily trains and as reprinted in Tennessee journals. Parks sent a copy of the commission report to W. H. Freeland, the DSC I general manager, along with a clipping from the Ducktown Gazette. He noted that the newspaper “has gotten the bug man's report mixed up with that of the other members of the Commission.” In the same letter, he mentioned that verdicts were rendered in two of the local smoke suits, one for $170 and the other for $100, dismissing them as “little suits.” Parks showed greater concern about the progress of the three injunction suits filed by William Madison, Isaac Farner, and Avery McGhee that were now in the Tennessee appellate courts. In October 1903 the Tennessee Court of Chancery Appeals ruled against the copper companies in the same month that Newell and the commission were tramping the basin landscape in the company of smoked-out farmers. For the moment, it appeared that Madison, Farner, and McGhee might succeed in their quest to shut down the mines by injunction. They were the enemies at the gate who posed a threat far more pressing than the maneuverings of a potentially dangerous but still distant foe on the other side of the mountains in Atlanta. Parks faced the nearer threat by collaborating with Cornick and corporate lawyers volunteered by the Louisville & Nashville Railroad to prepare what would be a successful appeal of the three injunction cases to the Tennessee Supreme Court.22
The threat from Atlanta appeared even more remote at the Broadway offices of the Tennessee Copper Company in New York City. At the same time that anticopper press coverage rose to a high pitch in Atlanta, TCC officers informed the Wall Street Journal of the company's profitable year and its intention to double production. The company paid a dividend of $1.25 per share in July 1903 and anticipated a like amount at the close of the year. Present earnings and future prospects were so good that it planned to install more and larger furnaces to increase production from the present rate of one (p.91) million pounds of refined copper per month (twelve million per annum) to twenty-five million pounds per annum. The company was flush with cash, allowing it to finance the expansion from earnings without the need to borrow funds or to float a stock offering. Sulfur smoke from the company's smelters exposed it to lawsuits by the score, constant bad press, and now the risk of state action, yet the firm's response was to increase operations. Expansion would inevitably increase the amount of acidic fumes belched into the air and thus provoke more smoke litigation. So be it: Tennessee Copper officials were content to let farmers, journalists, and politicians yammer about smelter smoke so long as there was money to be made in the southern mountains.23
Governor Terrell and Attorney General Hart could follow the New York financial press just as easily as the copper companies monitored the Georgia papers. The published reports of expansion plans added yet another element of urgency to the demand for state action on the problem of Ducktown smoke. Inaction is a frequently used and occasionally wise tool of public policy, but it was not a viable option for the smoke problem. The cry for relief shouted out by North Georgia mountaineers matured to a matter of state policy when adopted as a joint resolution of the General Assembly. Newell and the commissioners provided empirical support with evidence of the widening zones of crop and timber damage extending from the mine works across the border into Georgia. The press repeated the findings in a series of articles that elevated a once-local nuisance, in both the legal and the popular senses of the term, into a popular cause. With those factors in mind, Terrell and Hart took the next step by drafting and sending a formal demand letter to Governor James B. Frazier of Tennessee.24
Some might have considered the mere sending of a letter to be a weak, tentative opening to a legal war. It could be done more dramatically by filing suit at the courthouse without warning and then having a uniformed sheriff or marshal appear at the doorstep of the unsuspecting defendant to serve the summons and process. Despite the perhaps malicious pleasure of litigation by ambush, demand letters served several important functions that led to their use in most civil cases. If the recipient was agreeable, the letter provided an opportunity to resolve disputes without the costs, delays, and risks of a lawsuit. Even if it was refused or ignored, the effort of making it tended to put the plaintiff in a better light during the ensuing trial by allowing him or her to argue that “we tried to resolve this without wasting the court's time but the defendant would not listen to reason.” This was even more important in the present case because Georgia intended to invoke a court's equitable (p.92) power to grant an injunction to abate the smoke. Every court of equity in America sought to apply the ancient maxim “he who seeks equity must do equity.” This was a fundamental rule of fairness that meant, at the very least, that the attempt to seek a peaceful resolution by the use of a demand letter was encouraged and might even be rewarded by the court.25
Demand letters—whether by a creditor seeking payment from a debtor on a delinquent account, by an accident victim seeking compensation from the negligent party, or here by the governor of a sovereign state seeking an end to cross-border smoke pollution—all have the same three basic elements: the statement of grievance, a request that the recipient resolve the grievance in a specified manner, and the threat, whether expressed or implied, that litigation will ensue if the recipient fails to act as requested. Governor Terrell's one-page letter of November 25, 1903, contained all three elements. He first briefly recited background events, beginning with mention of the joint resolution and the formation of the commission in response to complaints from mountain counties “that the timber, fruit and agricultural interests … had suffered great and irreparable damage on account of the fumes produced by the smeltering of copper ores.” This much was not news. Farmers and timber owners in the tristate area had been litigating smoke damage claims against the copper companies for the better part of a decade. That made it necessary for Governor Terrell to explain how a long-running private dispute had now become a controversy between two sovereign states. For Georgia's part, the state became “interested in the question because of the great damage done to a large area of the public domain and the threatened total destruction of all vegetation within thirty or forty miles” of the copper works.26
Turning to the second element of a demand letter, Terrell asserted that Tennessee had a duty to intervene to abate the smoke damage because it was caused by corporations, “which I understand are created by the laws of Tennessee.” Specifically, he requested that his counterpart in Tennessee “take steps to prevent a continuation of the methods now used for smeltering ores by these corporations.” The third aspect of a demand letter, the threat of law-suit, remained implicit owing to the dignified tone required in a letter between the leaders of two sovereign states. The bullying tone, often used in a demand by a landlord against a delinquent tenant, had no place in a communication between parties of this stature.27
Governor Terrell's letter, though admirably brief, clearly written, and dignified in approach, was nonetheless flawed. He asserted a claim of damage to Georgia's public domain that begged the question of whether the state actually suffered harm to its property interests independent of the property (p.93) rights of its citizens. The state had little if any remaining public domain in the affected part of the state. Except state-owned buildings and highways, all of the land in North Georgia was in private hands. There were no state parks or wildlife refuges at the time. The letter also revealed that the state's hope for a technological cure to the smoke problem was more a matter of wish than reality. The demand for an end to “methods now used for smeltering ores” was, more specifically, a demand to end the roasting of ores on open heaps, in the expectation that the long-sought pyritic method of performing primary smelting in enclosed furnaces would somehow produce less sulfur smoke. Why that would be so was a mystery because whether green ore was roasted on heaps or burned in a furnace, the end remained the same: the expulsion of sulfur from copper ore and its ejection into the atmosphere.
Tennessee's Governor Frazier jumped on the third major problem of the demand letter in his response of December 14, 1903. After first expressing regret over any possible injury to citizens of another state, he wrote, “I know of no power vested in me as Governor of Tennessee to interfere and prevent such injury.” The statement, to Georgia ears, was on a par with the classic response of a defendant in a dog bite case: “I am sorry, but that's not my dog.” It was nevertheless correct. The Georgia demand letter implied that Tennessee was vicariously liable for the acts of corporations that it had created by grant of a charter or, in the case of foreign corporations, had authorized to do business by action of the secretary of state. The argument carried little weight because the very heart of corporate law was the creation of a new, artificial entity that shared some of the attributes of a natural flesh-and-blood person, including the capacity to sue and be sued in court. A corporation enjoyed the great benefit of limited shareholder liability upon condition that it could be sued and held liable for its conduct. That is why Governor Frazier insisted that “if the citizens of Georgia are injured by the operation of these works by their owners … the courts of Tennessee and possibly of the United States are the only tribunals I know of in which redress can be sought.”28
Governor Frazier would have done well to end his response on that point. Instead, he added another page of text that drew heavily upon the arguments and attitudes of the copper companies, leading to the reasonable inference that copper lawyers helped to draft the response. He observed that, “from information obtained from Ducktown, the extent of the injury done by these industries has been very greatly exaggerated” and then slightly distanced himself from the remark by adding, “but as to this I have no opinion.” He repeated the contentions made by DSC I and TCC in the pending Madison, Farner, and McGhee injunction cases. Yes, the smoke was an inconvenience (p.94) and possibly caused injury, but the mines gave employment to many. And the benefits of the industry outweighed the damage to the surrounding lands: “I am informed that the lands both in Tennessee and in Georgia, lying near to these works, would, in the absence of the copper mines, not be of very great value.”29
As a matter of law, the arguments were essential to application of the newly enacted balancing-of-interests test then under consideration in the Tennessee's appellate courts regarding the three injunction cases. It would have been better for Tennessee and the copper companies if the arguments had been confined to court and out of the reply to the demand letter. Georgia mountaineers and their political leaders inevitably heard Governor Frazier's denigration of their lands, and the suggestion of exaggerated damages, as a form of mockery that became fighting words when quoted in Georgia newspapers. The Atlanta Constitution repeated the comments under the headline “Frazier Says He Cannot Act” and ended the article with the observation that Governor Terrell “at once turned the letter over to Attorney General Hart” for further action. “It is confidently expected that a suit at law will be the out-come.” Popular expectations were one spur to action. A greater spur was the knowledge that that state of Georgia would appear a toothless opponent unless it filed suit soon after receiving Governor Frazier's response. Acting on Governor Terrell's instructions, Attorney General Hart simultaneously met public expectations and gave effect to the implied threat of the demand letter by filing suit in the U.S. Supreme Court on January 20, 1904.30
The owners and officers of Ducktown Sulphur, Copper, and Iron and of the Tennessee Copper Company recognized the suit as a dramatic and threatening change in Georgia's policy toward the Ducktown mining district. It ended a half century of close cooperation in which the state reached across its northern border to embrace the copper industry. Though the mines, and hence their taxable property, lay in Tennessee, Georgia had long valued the industry as a powerful economic magnet that could attract a railroad from Atlanta up and over the Blue Ridge Mountains to unite North Georgia to the rest of the state. The northern counties could not develop economically without a railroad to transport their resources to distant markets, and nothing was more likely to spur railroad investors to build it than the prospects of handling freight for a well-established copper industry.
Georgia legislators understood this from the earliest days of Ducktown mining. The 1853 Georgia General Assembly authorized construction of a line upon the finding that “there are large bodies of copper ore now raised and (p.95) raising … on both sides of the state line between Georgia and Tennessee which cannot be shipped to places of manufacture without the aid of a railroad.” More than a dozen other acts and resolutions followed in succeeding decades to promote the Ducktown line. Georgia provided convict labor to build it, loaned state funds to finance it, and even forgave the loans when construction faltered. The General Assembly also encouraged extensive logging in the Toccoa River watershed for the benefit of the copper industry. It passed laws declaring the Toccoa to be a navigable stream and forbade dams, fish traps, and other impediments that interfered with the rafting of logs from Georgia forests down the river to Ducktown to fuel the roast heaps and smelters.31
The Atlanta Constitution had long supported the copper industry and the railroad that was intended to reach it. It reported in 1870 that the people of North Georgia “are all alive for the project” and declared that “the railroad is the great instrumentality of progress and development” that would allow the section to “blossom like the rose.” When Governor James M. Smith traveled the proposed route of the line to Ducktown in 1874, the paper said “the people of these sequestered counties are enthusiastic over the prospect of a connection with the rest of mankind.” It noted the governor's “deep interest in the early development of the great mineral resources of the State” and his concern that he “did not see how this could be done without the aid of railroads.”32
The Constitution lamented the closing of the mines in 1878, asserting that “the suspension of work there at any time, and especially at the present, would be a great drawback upon all this section of country.” It worried when North Carolina's Governor Thomas Jarvis boasted that a competing rail link from North Carolina would reach Ducktown first and that “Chattanooga and Atlanta will be completely flanked and their importance as strategic railroad points will disappear.” When the Georgia line won the race, allowing the mines to reopen in 1890, the paper proclaimed, “The completion of this road opens up a limitless territory rich in agricultural resources, minerals, timber, and water powers … and well may Tennessee and Georgia rejoice over its completion.”33
Editorial policy and legislative action toward Ducktown were an expression of the New South ideology that prevailed in Georgia during the last quarter of the nineteenth century. The term “New South” is historically elastic and has been applied to every era of southern history from the end of the Civil War up to and beyond the modern civil rights era of the 1950s and 1960s. In its narrowest sense, as articulated by the Constitution's nationally famous (p.96) editor, Henry Grady, it was a campaign to revive the wartorn region with a combination of agricultural diversification (to reduce the near total reliance upon cotton as a money crop), promotion of industry (with northern capital and expertise), and white supremacy (to reverse civil rights advances for African Americans imposed by the North during Reconstruction). Diversification largely failed; southern agriculture remained fixed upon cotton until the boll weevil and other factors forced reconsideration after the turn of the century. White supremacy prevailed through the institution of Jim Crow segregation and the elimination of black voting strength through intimidation and eventual disfranchisement.34
Results on industrialization were mixed. Drawn by the attractions of the South's large pool of unskilled labor, low wages, and low taxes, investment money poured into the South to build railroads and factories and to exploit the region's mineral and timber resources. Southern transportation, utilities, and industries increased markedly, but at the price of perpetuating a colonial economy that exported raw materials and partially finished goods to the North and then purchased highervalue finished goods made by better-paid workers in northern factories. Over time, the South became, in the phrase of historian Gavin Wright, “a low wage region in a high wage nation.” Even so, throngs of sharecroppers were eager to leave cotton farming, with its uncertainties of weather and crop prices, in the hope of a somewhat steadier life of wage labor in the mills. Many mountaineers from areas where they had never grown cotton were just as eager to leave their hilly farms for work in the mines.35
The revival of copper mining at Ducktown fit well within the pattern of New South industrialization. The basin provided an array of attractive incentives for investors from New York and London. The Wall Street Journal reported that “with low wages, cheap fuel, a mountain of low grade copper ore, and a modern smelter, the Tennessee Copper Company has attracted considerable attention in the copper world.” The same prospects enticed DSC I investors in London to enter the district a decade earlier in 1889. The copper interests delivered on their end of the New South bargain. Their faith in the viability of the Ducktown mines spurred railroad investors to finish the line through North Georgia, to the great economic advantage of every mountain county along the way. The county seats of Canton, Jasper, Ellijay, and Blue Ridge were all now securely tied to the regional and national rail network. Timber from Gilmer County, marble from Pickens County, minerals and farm products from Fannin County all found ready markets in Atlanta and beyond. Hundreds, maybe thousands, of Georgians in the Ducktown (p.97) Basin earned their living in whole or in part from mining. Having done their part to fulfill the New South agenda, the two great firms, Ducktown Sulphur, Copper & Iron Co., Ltd., and the Tennessee Copper Company, might have expected the long embrace with Georgia to continue with even greater fervor.36
Smoke had always been a part of the relationship between the state and the industry. Ducktown smelter smoke had drifted across the border for more than half a century before it became a matter of official state concern in Atlanta. Georgia had long accepted smelter smoke as the expected price of industrial and economic progress. It was not a problem worthy of state attention until the volume of smoke—and consequent damage to local crops and vegetation—reached an unprecedented scale with the rapid expansion of the industry and the switch from high-grade oxide ores, rich in copper and low in sulfur, to the current use of sulfide ores, containing roughly 2 percent copper and 25 percent or more sulfur. With those factors in mind, the 14 million pounds of copper produced in 1903 revealed the scope of the problem: the copper came from 350,000 tons of ore that also yielded almost 90,000 tons (or 180 million pounds) of sulfur. Some of the sulfur was consumed during smelting. The rest ascended from the roast heaps and furnaces to enter the air over the basin where it remained trapped by the mountains on all but the more windy days.37
The growing volume of sulfur smoke inevitably left its mark on the land-scape with the expanding zones of smoke seen and documented by the legis-lative commission and the state entomologist, Wilmon Newell. It also ended the rhetoric of shared prosperity and replaced it with the rhetoric of war. Mountaineers first raised the cry. The General Assembly authorized combat by its legal champion. Attorney General Hart, in his formal challenge before the Supreme Court, alleged that sulfur smoke from the mines was “a hostile invasion on the part of Tennessee and its citizens” upon the state of Georgia. The Atlanta Constitution echoed the phrase with the headline, “Georgia Seeks to Repel Invasion by Tennessee.”38
Invasion was a strong word with important legal and historical connotations. The legal significance would surface later in the Supreme Court litigation; in the meantime, the term struck a powerful chord in the hearts and souls of Georgians who shared a visceral hatred for an earlier invader, William Tecumseh Sherman. Thousands of living Georgians retained vivid personal memories of the sufferings they endured when Sherman's Army of the Tennessee marched, fought, and burned its way through the entire length of the state. After burning Atlanta, his army left a three-hundred-mile trail of deliberate (p.98) destruction to cities, towns, factories, mills, gins, farms, and homes. Attorney General Hart was ten years old when Union troops plundered his native Greene County on the way to the sea. Those Georgians born after the event were raised on a diet of biscuits, gravy, and tales (both real and apocryphal) of Sherman's depredations.39
The state's political and cultural leaders carefully nurtured memories of the event as part of a larger campaign to enhance white identity and supremacy with stories of the glories and sufferings of the Lost Cause of the Confederacy. In 1874 the General Assembly set aside April 26, the day of General Joseph E. Johnston's surrender to Sherman, as Confederate Memorial Day. Atlanta's official seal depicted a phoenix rising from the ashes in defiance of Sherman's burning of the city.40
Characterization of Ducktown smelter fumes as an invasion was more than a figure of speech. The smoke confronted the senses in a way that gave weight to the rhetoric of invasion. It was not a hidden industrial menace like lead in house paint. It had the sensed immediacy of Sherman's army. His troops could be seen as they marched out of Chattanooga for Georgia. The endless train of its wagons could be heard at a distance, and the sound of its guns yet further. And, if one came too close, the odor of thousands of unwashed men, their cooking fires, and their poorly sanitized camps could be smelled. Ducktown smoke shared some of those attributes. It carried the acrid stench of rotten eggs. It was a visible mass that blocked the sun, and if viewed from the surrounding heights, it appeared to flow over the landscape as if it was an advancing army, leaving a trail of destruction behind it.
Invading smoke made a refugee of J. H. Verner and his family. He testified in 1905 that the smelter smoke “killed all my fruit trees, timber and crops, and I had to leave and follow something else for a living.” He abandoned the farm in 1899 and then failed to get work at the mines. He then moved to the town of Ducktown, where he supported his family as a teamster “hauling wood for citizens, goods for merchants, and any one I could get.” Scores of other Georgia farmers had their own complaints about smoke damage. The problem was getting worse. The invasion needed to be repelled.41
Georgia's fight against Ducktown smelter smoke was a specific response to a geographically isolated threat. It was not part of a general state campaign against air pollution. The smoke suit was a high-profile exception to a long-standing policy of legislative and judicial tolerance of industrial smoke. The greatest human source of sulfur dioxide in Georgia and the rest of the nation was the burning of coal to heat homes and to fire up steam boilers to (p.99) power locomotives and factory equipment. Coal generated about 100,000 tons of sulfur dioxide pollution in Georgia in 1900, and that amount rose to 200,000 tons by 1920. The amount of pollutants, though great, did not lead to a general outcry for relief. Georgia's cities and industries were growing, but did not approach the smoke-producing magnitude of New York's population or Pittsburgh's steel industry. Unlike Pittsburgh or Ducktown, the state's open topography south of the mountains allowed coal pollutants to disperse through the atmosphere before causing the visible damage so evident in the basin. That being so, the General Assembly did not feel compelled to act against coal pollution until 1967, when it joined the modern campaign against air pollution by enacting its first comprehensive air quality act.42
Georgia courts also tolerated smoke as an acceptable consequence of progressive civilization. This posture first surfaced in opinions involving nuisance claims against railroads, especially concerning the operation of trains in urban settings. In a set of cases from Augusta, neighboring property owners, long accustomed to the urine, manure, and noises of horse-drawn wagons, complained that steam locomotives were “shaking the houses, thereby breaking the plastering and filling the houses with dust and smoke.” The engines spooked horses, causing them to run away pell-mell to the risk of others, and exposed homes to the risk of fire from flying cinders. Trains and their tracks impeded traffic. The trial court refused to enjoin rail operations. The Georgia Supreme Court then affirmed, saying, “in these days of modern improvements, we admit the legality” of permitting trains on city streets, though it did allow individual actions for damages to proceed. The right to damages was restricted in a later case involving a railroad built through the village of Stone Mountain to haul granite quarried from the mountain of the same name. As in Augusta, the villagers sued for damages, but this time the court applied the incidental-benefits rule to affirm a zero verdict for claimants. It held that the complaining neighbors were not entitled to damages if the presence and improvements brought about by the railroad increased the value of their properties in an amount greater than the amount of the damages caused by the trains. On this point, the Georgia Supreme Court was even more favorable to industry than its Tennessee counterpart, because the latter court refused to apply the incidental-benefits rule on behalf of the copper industry in Ducktown Sulphur, Copper & Iron Co. Ltd. v. Barnes (1900).43
Georgia's Supreme Court showed the same favorable disposition toward steam-powered factories. In 1856 it affirmed judgment against homeowners when they attempted to enjoin a steam-powered carpentry shop in Columbus because of noise. Chief Justice Joseph H. Lumpkin first dismissed the (p.100) noise issue by observing that “we know of no sound, however discordant, that may not, by habit, be converted into a lullaby, except the braying of an ass or the tongue of a scold.” He then declared that one may “as well attempt to stop up the mouth of Vesuvius as to arrest the application of steam to machinery at this day.” Judicial tolerance had its limits as demonstrated in a case by the owners of an office building against a coalfired steam laundry in downtown Athens, a few blocks from the University of Georgia School of Law. The landlord contended that the laundry's use of soft coal created a dense cloud of dark smoke that forced its professional and business tenants to keep their windows closed on hot days to their great discomfort (this occurred long before the advent of air conditioning). The court recognized that the use of coal was necessary in homes, businesses, and factories, and that “as population thickens, the impurities thrown into the air are increased.” It added that “pollution of the air” is “actually necessary to the reasonable enjoyment of life and indispensable to the progress of society.” As an inescapable component of modern life, smoke pollution did not give rise to an actionable case for nuisance unless it was generated “in an unreasonable manner so as to inflict injury.” Whether the laundry's use of soft coal in lieu of cleaner-burning hard coal was unreasonable under the circumstances was a question for the jury.44
Neither the courts nor the legislature had occasion to consider smelter smoke generated by operations within the state. The major Georgia mining operations—marble, stone, kaolin clay, gold, coal, and crushed stone—did not involve the smelting of sulfurous ores. The government was largely tolerant of mining's other impacts. Gold mining drew white settlers into Georgia's Blue Ridge Mountains in the 1830s and remained a favored endeavor of the state for the remainder of the century. The General Assembly did all it could to promote gold mining with little regard to the consequences to the surrounding lands and waters. It repeatedly authorized hydraulic mining, the technique of blasting high-pressure water shot from hoses to wash gold-bearing deposits out of the hillsides. The water jetted from the nozzles with such force that, as a consequence of “accidentally striking a man or animal, [that man or animal] would be killed in an instant,” and it carved up the land-scape just as easily. The muddy runoff then passed through sluice flumes that isolated the gold while allowing enormous loads of dirt and gravel to wash into the streams. The method eroded slopes, ruined watercourses with loads of silt, and flooded downstream lands wherever it was employed.45
Nevertheless, the General Assembly granted hydraulic miners a general (p.101) right of way to impound and divert streams for their operations on the argument “that by this process alone can the mineral wealth of large portions of our mining districts be ever fully developed.” It also issued corporate charters to numerous companies with unambiguous names describing the streams they intended to despoil, such as the Yahoola River and Cane Creek Hydraulic Hose Mining Company.46
In California, where there was a much larger hydraulic gold industry, farmers fought and prevailed in a nuisance action against mining interests in 1884. Nothing similar appeared among the reported cases in Georgia. Georgia's Supreme Court did enjoin two small mining operations near the piedmont town of Cartersville when neighbors complained that operations diverted and polluted local streams, but neither case involved hydraulic mining. Nor did the cases do anything to quell statewide excitement over the revival of gold mining when the Dahlonega Consolidated Gold Mining Company began operations at about the same time that copper mining revived in Ducktown.47
Georgians were also excited about the possibility of copper mining of their own. A report by Walter Harvey Weed, published by the United States Geological Survey in 1904, renewed hope of creating a viable copper industry in several parts of Georgia, especially where the Ducktown ores extended over the border from Tennessee into Fannin County. There was no reason to expect that Georgia ore was any less sulfurous than ore from Tennessee. Nonetheless, the Constitution's editors cited the report and insisted “the time may come when the new battleship Georgia will be sheathed with Georgia copper.” Sporadic copper mining in Fannin County proved disappointing with the brief exception of the No. 20 Mining Company that produced 86,000 tons of ore over a three-year run from 1916 to 1918. All of it was carried by rail across the border for smelting at the works of the Tennessee Copper Company.48
Aldous Huxley wrote, “Consistency is contrary to nature, contrary to life. The only completely consistent people are the dead.” Even so, the Constitution's booster rhetoric for copper on the Georgia side of the border was jarring when read alongside the war rhetoric of its ongoing articles against the operations of Tennessee Copper and Ducktown Sulphur, Copper & Iron, located less than five miles away on the other side of the border. The difference turned on the geographic consequences of the state line and the local topographical features that made that line problematic. Topography concentrated (p.102) the smoke problem, allowing it to flow over the border into the Georgia portion of the basin. The same mountains contained the problem in ways that minimized the political and economic consequences of Georgia's response to it.49
The Ducktown Basin is roughly oval in shape, narrow in the north and widening to the south.50 The northern fourth of the pan lies on the Tennessee side, and the southern three-fourths are in Georgia. Only a tiny portion of the basin extends into North Carolina, a major reason why that state declined to join suit against the copper companies. Ligon Johnson, an attorney who would soon play a major role in the smoke litigation on behalf of Georgia, wrote that the fumes from the roast heaps “did not float off in the atmosphere but hugged the ground, rolling along in front of the wind in constant volume until absorbed by the soil and vegetation.” He added, “There was little diffusion and the radius of fume influence gradually widened with the destruction of each successive barrier of vegetation.” Instead of rising, the smoke flowed over the cultivated bottomlands and climbed the slopes into the orchards and woodlots. Instead of dispersing into the atmosphere, it remained in a highly concentrated state, causing damage too severe and too pervasive for Georgia authorities to ignore. A different result might have occurred if smelting occurred in a flat, windy landscape that allowed smoke to disperse over a wider region.51
The same mountains also made the damage a geographically isolated problem. Dora Galloway, daughter of a TCC copper miner, noticed this effect when she traveled out of the basin to visit her grandparents in Farner, a village a few miles up the track beyond where Stansbury Mountain guarded the basin's northern rim. In a trip of only a dozen miles, she traveled from a man-made desert back into the Appalachian hardwood forest: “We had barely settled in our red plush seats when the train slowly moved away from the station; and hardly no time until we left the barren hills … with trees looking as though they were flying by the windows.” The basin's drainage patterns also worked in Georgia's favor: all the local streams flowed into the Toccoa-Ocoee River, which then drained into Tennessee. Silt from denuded slopes and waterborne mineral toxins from the mines flowed away from Georgia's portion of the basin without troubling the rest of the state.52
Favorable drainage patterns and protective mountain walls made it possible for Georgia to fight smelter smoke with a targeted lawsuit, without altering its pro-industry New South policies for the rest of state. The problem was specific to the Ducktown Basin. TCC and DSC I were the only offenders of note, and they were on the other side of the border. The fight (p.103) against their smoke did not require enactment of a general pollution law at the risk of irritating thousands of voting polluters, as would be the situation in the event of a statewide effort to control sulfur dioxide from coal and other sources.
The geography of the state line also shaped Georgia's response in other ways. The border controlled tax benefits, but it did not control the smoke. Georgia industry generated Georgia taxes, and so the state might have tolerated the smoke if the smelters were on its own side of the border. They were not. Tennessee enjoyed almost all of the direct tax benefit of the copper industry in the Ducktown Basin. Property taxes assessed against the two great companies made Polk County one of the wealthiest counties per capita in Tennessee. Georgia could not tax property across the state line. Nor did it have an income tax or sales tax at the time that would have allowed for a relatively direct link to the industry by taxing earnings paid to Georgia mine workers and sales to the mining community from Georgia merchants. Smelter emissions troubled both states, but Tennessee had all the taxable benefit. Georgia just got the smoke. Those simple facts made DSC I and TCC vulnerable to the demands of Georgia smoke suitors for action by their government in Atlanta.53
Georgia's lack of direct tax benefit in the Ducktown mining industry served the political cause of the smoke victims. The citizenry of the North Georgia mountains did not, as a rule, carry much weight in the legislature because the region was geographically smaller and far less populated than the broad piedmont and coastal plains. The mountains added relatively little to an economy based on cotton and urban industrialization. Cotton grew poorly north of the Blue Ridge, and the industrial centers were concentrated in Atlanta and the fall line cities of Augusta, Macon, and Columbus. Nonetheless, the smoke resolution passed in both houses with near unanimous votes for the simple reason that the copper companies were on the other side of the border. Action against Tennessee Copper and Ducktown Sulphur, Copper & Iron would not pit Georgia farmers against Georgia industry. Nor would it cost the state anything in lost tax revenue. No state is eager to kill a taxable golden goose, but the copper industry was Tennessee's goose, not Georgia's. Tennessee protected its economic interests by amending the law of nuisance in favor of the copper industry. Georgia could afford to heed the political demands of smoked-out farmers and loggers by authorizing an investigation and a lawsuit.
In January 1904 Hart headed to the Supreme Court in Washington, D.C., for (p.104) the opening round of Georgia's legal war against Ducktown Sulphur, Copper & Iron Co. and the Tennessee Copper Company. With him was Congressman Farish Carter Tate, whose district embraced the Georgia portion of the basin. Tate might have had mixed sympathies as he weighed the factors for and against his visible support of the smoke suit. The Tate family owed more than a little to the copper industry, yet Tate's district embraced the areas most damaged by the smoke.
His political stature rested, in part, upon his family's New South industrial success. That success began with the good luck of his grandfather, Sam Tate, when he acquired land lot number 147, in what is now Pickens County, during one of the lotteries of Cherokee land. The parcel lay in the heart of huge and valuable marble deposits that became even more valuable with the arrival of the Marietta & North Georgia Railroad in the 1880s. The line built in the obsessive drive to reach Ducktown ran right past the marble quarries, allowing the product of the family's quarries to be easily shipped to distant states. Rail access allowed Stephen Tate, Farish's father, and Colonel Sam Tate, Far-ish's brother, to build their local operation into a nationally prominent concern. The statue in the Lincoln Memorial at the nation's capitol was carved from Tate marble. Only Vermont produced more American marble. Colonel Sam celebrated the family's fortunes by building an Italianate mansion out of pink marble quarried from the Tate mines.54
Yet, the immediate concerns of F. C. Tate's mountain constituents out-weighed the fact that the Tate family owed its fortune to the railroad built to serve the copper industry. Ducktown smoke was a political matter, not just a legal one. North Georgia voters had pressured their representatives in the General Assembly into action against smelter smoke. Congressman Tate was a professional politician and knew the prevailing mood in his district toward the copper companies on the other side of the border. It was that knowledge that led him to join Attorney General Hart's group as Georgia's battle against invasive smoke moved to the U.S. Supreme Court.55
(2) Corporate law firms routinely engage local counsel to avoid home cooking, even when it is not otherwise required by applicable licensure rules.
(4) Senate Resolution 47, 1903 Ga. H. Journal, 436; 1903 Ga. H. Journal, 752.
(5) Resolution of August 17, 1903, no. 47, 1903 Ga. Laws 691.
(6) The biographical sketch is drawn from Jones, “The Administration of Governor Joseph M. Terrell,” and from Cook, “Terrell, Joseph Meriwether.”
(7) “The Ducktown Copper Mine,” Atlanta Constitution, August 20, 1903, 6.
(8) Report of the 1903 Ducktown Commission to Governor J. M. Terrell, November 20, 1903, attached as Ex. A to Motion for Leave to File Bill of Complaint, 13–14, Georgia v. Ducktown Sulphur, Copper & Iron Co., U.S. Supreme Court, No. 14 Original, October Term, 1903. Note: the caption of Georgia's initial Supreme Court filing reflected its confusion over the proper defendants, as is addressed more fully in chapter 5, note 2.
(9) Newell's party is described in “Copper Fumes Killing Trees,” Atlanta Constitution, October 29, 1903, A1.
(10) Report of Wilmon Newell to Governor J. M. Terrell, October 28, 1903, attached as Ex. B to Motion for Leave to File Bill of Complaint, 15–18, Georgia v. Ducktown Sulphur, Copper & Iron Co., U.S. Supreme Court, No. 14 Original, October Term, 1903 (herein Newell Report). The opening lines of the report reference the governor's role in his investigation: “In accordance with your instructions, I visited …”
(12) Ducktown Sulphur, Copper & Iron Co., Ltd. v. Barnes, 60 S.W. 593 (Tenn. 1900).
(13) Newell Report, 17.
(15) Ottewell, “There Are No Ducks in Ducktown” (man-made desert); Barnhardt, “The Death of Ducktown” (bona-fide desert); James W. Taylor, “Ducktown Desert.”
(16) For comparison of damage caused during the first and second eras of Ducktown mining, see Foehner, “Historical Geography,” 9–49; James W. Taylor, “Ducktown Desert,” 28–60.
(17) Newell Report, 17.
(18) Marsh, Man and Nature. For Marsh's place in the conservation movement, see Pisani, “Forests and Conservation”; Wynn, “‘On Heroes, Hero-Worship, and the Heroic’”; Tyrrell, “Acclimatisation and Environmental Renovation”; Judd, “George Perkins Marsh: The Man and Their Man”; Marcus Hall, “Provincial Nature of George Perkins Marsh.” For Marsh's life and work, see Lowenthal, George Perkins Marsh; Larson, “Marsh, George Perkins.”
(19) Dodds, “The Stream-Flow Controversy”; Newell Report, 17; “Georgia May Sue a Sister State,” Atlanta Constitution, November 1, 1903, 9; “Furnaces Denude Georgia,” New York Times, November 2, 1903, 9.
(20) “Report Ready for Governor: Sulfur Fumes Destroy Vegetation in Fannin,” Atlanta Constitution, October 14, 1903, 7; “Copper Fumes Killing Trees,” Atlanta Constitution, October 29, 1903, A1; “Georgia Forests Withered by Sulfur Fumes,” Atlanta Constitution, November 22, 1903, A5.
(21) “Georgia May Sue a Sister State,” Atlanta Constitution, November 1, 1903, 9; “State Gossip Caught in Capitol Corridors,” Atlanta Constitution, November 2, 1903, 5; “Gossip at the Capitol,” Atlanta Constitution, November 5, 1903, 6, and November 6, 1903, 6.
(22) James G. Parks to W. H. Freeland, October 20, 1903 (hopes for successful appeal to the Tennessee Supreme Court), DBM. For correspondence regarding collaboration between the copper companies and the Louisville & Nashville Railroad, see Howard Cornick to James G. Parks, October 15, 1903; J. Parke Channing to Milton H. Smith, October 14, 1903; Milton H. Smith to J. Parke Channing, October 14, 1903; James G. Parks to W. H. Freeland, November 11, 1903, all DBM.
(23) “Tennessee Copper,” Wall Street Journal, October 29, 1903, 5.
(25) Georgia codified the maxim in Ga. Code 1863 §3017; it is now codified as Ga. Code Ann. §23–1–10.
(28) Governor J. B. Frazier to Governor J. M. Terrell, December 14, 1903 (emphasis added), container 2, folder 11, Frazier Papers, TSLA. The dog bite defense is nicely demonstrated by a hotel clerk to Inspector Clousseau in Peter Sellers's comedic film, The Pink Panther Strikes Again (1976).
(30) “Frazier Says He Cannot Act,” Atlanta Constitution, December 16, 1903, 3; Motion for Leave to File Bill of Complaint, Georgia v. Ducktown Sulphur, Copper & Iron Co., U.S. Supreme Court, No. 14 Original, October Term, 1903.
(31) Act of February 9, 1854, no. 363, 1853–54 Ga. Laws, vol. 1, 425. Other Ducktown railroad enactments include Act of October 24, 1870, no. 223, 1870 Ga. Laws, vol. 1, 340 (creating the Marietta & North Georgia Railroad and lending state funds to it); Act of August 27, 1872, no. 124, 1872 Ga. Laws, vol. 1, 179, 181 (authorizing line from Cartersville to Ducktown); Act of August 17, 1872, no. 212, 1872 Ga. Laws, vol. 1, 324 (railroad from Atlanta to the Tennessee border “at or near the Ducktown copper mines”); Act of August 27, 1872, no. 238, 1872 Ga. Laws, vol. 1, 360 (creating the North Georgia & Ducktown Railroad Co.); Act of February 25, 1876, no. 54, 1876 Ga. Laws, vol. 1, 40 (leasing convict labor to the M. & N. G. R. R.); Act of February 28, 1876, no. 271, 1876 Ga. Laws, vol. 1, 254 (M. & N. G. R. R. branch line to Ducktown); Act of October 7, 1885, no. 27, 1884–85 Ga. Laws, vol. 1, 671 (loan forgiveness). For pro-Ducktown river legislation, see Act of February 26, 1876, no. D, 1876 Ga. Laws, vol. 1, 388; Act of October 13, 1879, no. 246, 1878–79 Ga. Laws, vol. 1, 187.
(32) “The Marietta and Ducktown Railroad,” Atlanta Constitution, November 6, 1870, 3; “The North Georgia Railroad,” Atlanta Constitution, July 11, 1874, 2; “The Governor's Trip,” Atlanta Constitution, July 17, 1874, 2.
(33) “The Ducktown Failure,” Atlanta Constitution, July 21, 1878, 1; Atlanta Constitution, February 25, 1880, 2; see also “The Marietta and North Georgia,” Atlanta Constitution, August 12, 1882; “The First Trip by the Hiwassee,” Atlanta Constitution, August 23, 1890, 3.
(34) For representative works on the New South, see Woodward, Origins of the New South, and Ayers, Promise of the New South. For intellectual and cultural approaches, see Gaston, New South Creed; Silber, The Romance of Reunion. For an economic approach, see Wright, Old South, New South, 156–97; Cobb, Industrialization and Southern Society, 1–26. For the New South in Georgia, see Coleman, A History of Georgia, 207–37, 252–54; Bartley, Creation of Modern Georgia, 45–102. For the boll weevil and other factors shaping cotton monoculture, see Daniels, Breaking the Land, 3–22, 91–133, 155–83; Geisen, “The South's Greatest Enemy?”
(35) Wright, Old South, New South, 7 (“low wage region …”).
(36) “Tennessee Copper,” Wall Street Journal, October 29, 1903, 5.
(37) For production figures, see Emmons and Laney, Geology and Ore Deposits of Ducktown Mining District, 32; American Institute of Mining Engineers, “A Brief Description of the Operations of the Tennessee Copper Company.” For Ducktown ore composition, see Weed, The Copper Mines of the World, 350.
(38) Motion for Leave to File Bill of Complaint, 9, Georgia v. The State of Tennessee, The Ducktown Sulphur, Copper & Iron Company, Ltd., and the Pittsburgh and Tennessee Copper Company, U.S. Supreme Court, October Term, 1903; “Georgia Seeks to Repel Invasion by Tennessee,” Atlanta Constitution, January 24, 1904.
(39) Sherman's march unquestionably involved deliberate, extensive destruction, but the extent and nature of the destruction is a matter of debate. Compare Grimsley, The Hard Hand of War, 171–204, and Marszalek, Sherman's March to the Sea. For an environmental perspective, see Summers, “Desolation and War”; Royster, The Destructive War.
(40) “Confederate Memorial Day in Georgia,” <http://www.cviog.uga.edu/Projects/gainfo/confmem.htm> (accessed May 20, 2007). For a recent work on southern historical memory, see Cobb, Away Down South.
(41) Transcript, 43 (deposition of J. H. Verner), Madison v. Ducktown Sulphur, Copper & Iron Co., Ltd., Chancery Court, Polk Co., TN, No. 247.
(42) For the EPA figures and discussion of sulfur dioxide in Georgia, see R. Harold Brown, (p.276) The Greening of Georgia, 209–23; Act of April 14, 1967, no. 433, 1967 Ga. Laws, vol. 1, 581–90.
(43) Vason v. South Carolina R.R. Co., 42 Ga. 631 (1871) (affirming denial of injunction); South Carolina R.R. Co. v. Steiner, 42 Ga. 631 (1871) (affirming denial of injunction, remanding for determination of damages); Guess v. Stone Mountain Granite and Ry. Co., 72 Ga. 320 (1884). For other cases denying injunctions against railroads, see Guess v. Stone Mountain Granite and Ry. Co., 67 Ga. 215 (1881); Powell v. Macon & Indian Springs R.R. Co., 92 Ga. 209, 17 S.E. 1027 (1893); Ga. R.R. and Banking Co. v. Maddox, 116 Ga. 64, 42 S.E. 315 (1902) (grant of injunction reversed except on Sundays); but also see Kavanaugh v. Mobile and Girard R.R. Co., 78 Ga. 271, 2 S.E. 636 (1886) (injunction proper where city authorization was invalid); Coker v. Atlanta, Knoxville, and Northern Ry. Co., 123 Ga. 483, 51 S.E. 481 (1905) (invalid ordinance); Ducktown Sulphur, Copper & Iron Co., Ltd. v. Barnes, 60 S.W. 593 (Tenn. 1900).
(44) Mygatt v. Goetchins, 20 Ga. 350, 358–59 (1856). For other anti-injunction rulings in favor of steam-powered factories, see Cunningham v. Rice, 28 Ga. 30 (1856) (flour mill); Powell v. Foster, 59 Ga. 790 (1877) (gristmill); Knox v. Reese, 149 Ga. 379, 100 S.E. 371 (1919) (cotton gin); Holman v. Athens Empire Laundry Co., 149 Ga. 345, 100 S.E. 207 (1919).
(45) For a description of hydraulic mining in Georgia, see Stephenson, Geology and Mineralogy of Georgia, 102–4.
(46) For Georgia gold mining, see David Williams, Georgia Gold Rush; “There's Gold in Them Thar Hills, Gold and Gold Mining in Georgia,” 〈www.http://dig.galileo.usg.edu/dahlonega〉 (accessed March 16, 2007); Act of December 13, 1858, no. 163, 1858 Ga. Laws, vol. 1, 157 (right of way); Act of December 11, 1858, no. 60, 1858 Ga. Laws, vol. 1, 72 (Yahoola).
(47) The California case is Woodruff v. North Bloomfield Gravel Mining Co., 18 F. 129 (Cir. Ct., N.D. Cal, 184). For a scientific overview of California hydraulic mining, see Gilbert, Hydraulic-Mining Debris in the Sierra Nevada. Gilbert estimated that hydraulic mining sent more than a billion cubic yards of sediment into the Sacramento and San Joaquin river basins and ultimately into San Francisco Bay, where it threatened navigation. The Cartersville cases are Satterfield v. Rowan, 83 Ga. 187, 9 S.E. 677 (1889); Woodall v. Cartersville Mining and Manganese Co., 104 Ga. 156, 30 S.E. 665 (1898).
(48) Weed, “Copper Deposits in Georgia”; “Copper in Georgia,” Atlanta Constitution, November 9, 1904, 7; “Copper in Georgia,” Atlanta Constitution, November 22, 1904, 6; Barclay, Copper Basin, 49–50.
(50) For a detailed description of Ducktown topography and drainage, see LaForge, Physical Geography of Georgia, 114–16.
(51) Ligon Johnson, “The History and Legal Phases of the Smoke Problem,” 200.
(52) Galloway, Little Girl in Appalachia, 15–16.
(53) Georgia enacted the sales tax in 1929 and the modern income tax in 1931, Act of August 29, 1929, no. 427, 1929 Ga. Laws, vol. 1, 103–17; Act of March 31, 1931, no. 5, 1931 Ga. Laws, vol. 2, 24.
(54) For Tate family history, see Lucius Eugene Tate, History of Pickens County; William Tate, Documents and Memoirs; Barclay, Railroad, 173–78.
(55) “Supreme Court Hears Motion; Judge Hart and Ligon Johnson Present Their Case in Washington,” Atlanta Constitution, January 26, 1904, 8.