Edgar Allen McCulloch (1861–1933)

Edgar Allen McCulloch was a lawyer in eastern Arkansas who achieved renown in a long career that included twenty-four years as a justice of the Arkansas Supreme Court, nineteen of them as chief justice, and a critical span of six years as chairman or member of the Federal Trade Commission (FTC), where he established important law in the regulation of public utilities in the United States. At the FTC, he personally took on an extensive investigation of public-utility holding companies in America requested by Congress, which resulted in a raft of energy regulation laws during the New Deal.

Edgar McCulloch was born in Trenton, Tennessee, on August 1, 1861, to Dr. Phillip Doddridge McCulloch and Lucy Virginia Burrus McCulloch. McCulloch’s father was a physician from western Tennessee who, fifteen years after the Civil War, brought his large family to Arkansas, where the clan achieved prominence in politics, jurisprudence, and medicine. His mother died when he was five, and his father married twice more and reared six children. McCulloch attended school in Trenton and began studying law.

In the 1880s, the family moved to Arkansas, and his father established a practice in Hot Springs (Garland County), where he founded a medical society. McCulloch later joined a law practice in Marianna (Lee County) with an older brother, Phillip D. McCulloch Jr., in 1883. The brother ran for and was elected to the U.S. House of Representatives in 1892 for the first of six terms. McCulloch’s nephew, Lee County farmer Doddridge McCulloch, later served four terms (1917–24) in the Arkansas House of Representatives.

McCulloch married Hattie Louise Hassell of Trenton on November 30, 1887, and they had four sons.

When Justice Simon P. Hughes, a former Confederate officer and Arkansas governor, retired from the Arkansas Supreme Court in 1904, Edgar McCulloch was elected to replace him on the court. Five years later, in February 1909, Chief Justice Joseph M. Hill resigned so that he could represent the state in a lawsuit with the railroads over freight rates, a case ultimately decided in Hill’s and the state’s favor by the U.S. Supreme Court. Governor George Washington Donaghey appointed Justice McCulloch to the vacancy. In the most momentous controversy ever to reach the court—the convictions and death sentences of twelve Black men arising from the events surrounding the Elaine Massacre of 1919—the court left a checkered record on the appeals from Helena (Phillips County); the twelve men were eventually freed.

McCulloch remained as the court’s chief justice until 1927, when President Calvin Coolidge appointed him to the FTC and he moved to Washington DC. McCulloch was a Democrat who had already proven to have a somewhat liberal and populist propensity, and his zeal for extracting the truth about the utility holding companies in the years afterward made his appointment by a Republican president who was celebrated for his probusiness penchant seem, by twenty-first-century standards, an unusual choice. However, Coolidge’s choice was logical in the sense that McCulloch was steeped in that kind of legal work. State regulation of railroads and utilities was a perpetual cause of appeals before the Arkansas court in the post-Reconstruction era. Possibly, the case of Adelia P. Danaher of Little Rock (Pulaski County) and her battle with the local telephone company (Danaher v. Southwestern Telephone and Telegraph Company) was called to the attention of the president, or his advisers, when he had to make the FTC appointment. The telephone company had raised the monthly rate for phone service from $2 to $2.75 and, according to its lawyers, Danaher fell about four dollars behind, so it shut off her phone for thirty-eight days, until she paid up—and then only if she paid fifty cents more a month than its preferred customers. Danaher disputed the company’s claims and sued it for damages under an 1885 state law that said public utilities were obliged to provide reliable service at a reasonable cost to people, and, if they refused, a person could sue them for punitive damages. The trial court denied her claims, but McCulloch and his colleagues on the Supreme Court supported them.

For this case, McCulloch, who amazed his fellow justices with his encyclopedic knowledge of U.S. Supreme Court decisions, cited a nineteenth-century U.S. Supreme Court precedent that supported the idea that a utility was engaged in a public service and could not refuse service without due process and reasonable grounds. The business-oriented U.S. Supreme Court of 1915 reversed the McCulloch court, saying that while the phone company was engaged in a public service, every business should be allowed to collect payments promptly in order to stay in business. Penalizing a company for refusing to supply a service deprived it of its property without due process of law, in violation of the Fourteenth Amendment, the U.S. justices ruled.

After his appointment to the FTC in 1927, McCulloch was its chairman for a year, in 1929. The FTC had been created in 1914 in response to the growth of monopolistic trusts in the late nineteenth century. When the Senate adopted a resolution in 1928 asking the FTC to investigate the growth and large profits of public-utility holding companies and their massive propaganda campaign against state and federal regulation, the FTC designated McCulloch to direct the investigation and the scores of hearings, which lasted almost until his death. McCulloch subpoenaed the financial records of twenty-nine holding companies, seventy subholding companies, and 278 gas and electric companies in the forty-eight states. The hearings subjected the holding companies and especially the empire of Samuel Insull to intense scrutiny. In May 1931, the New York Times devoted five front-page headlines to the revelations about the close financial ties of giant holding companies and newspapers, including Arkansas newspapers. Electric utility promotions and advertising, especially those of Electric Power and Light Corporation (predecessor of Middle South Utilities and Entergy Corporation), were a huge source of income for Arkansas dailies from the 1920s until after World War II.

Overcharge (1967), a history and analysis of the utility holding companies’ power and profits, written by U.S. Senator Lee Metcalf and Vic Reinemer, recounted McCulloch’s investigations and how they shook the utility empires, especially that of Samuel Insull: “In 1932, Insull resigned his 85 directorships, 65 chairmanships, and 111 presidencies and abruptly departed for Europe, prior to his indictment for embezzlement, using the mails to defraud, and violation of the bankruptcy acts.” Eighteen months after McCulloch’s death, Insull was brought back from Europe and charged and tried, along with sixteen others who were accused of profiting with Insull by selling worthless stock to unsuspecting investors. However, after a seven-week trial, the jury deliberated only five minutes before acquitting them.

The voluminous findings of the investigation went to Congress, which in the next four years enacted several laws overhauling the regulation of the public-utility industry, including the Federal Power Act of 1935, the Securities Act of 1933, the Public Utility Holding Act of 1935, and the Natural Gas Act of 1938.

While finalizing the commission’s utility investigation and finding himself in constant pain from ulcers, likely induced by the intense hearings, McCulloch went to the Barnes Hospital in St. Louis, where his son was a member of the medical staff, for surgery before Christmas 1932. He died on January 23, 1933, from coronary thrombosis. He is buried in Roselawn Memorial Park in Little Rock.

An editorial tribute by John Netherland Heiskell, the editor of the Arkansas Gazette, said the late stage of McCulloch’s life was devoted to “a work of peculiar importance, an investigation of the nation’s public utilities.” On the afternoon of McCulloch’s death, the governor and fellow justices of the Supreme Court issued tributes to his legal scholarship, fairness, and humanity. Justice Tom Mehaffy called him “one of the great lawyers of the state and in many respects one of the greatest judges who ever served.”

For additional information:
Final Report of the Federal Trade Commission to the Senate of the United States Pursuant to Senate Resolution No. 83, 70th Congress, 1st Session on Economic, Corporate, Operating, and Financial Phases of the Natural-gas-producing, Pipeline, and Utility Industries, With Conclusions and Recommendations. Hatha Trust Digital Library. Washington DC: Federal Trade Commission, 1936.

“Judge E.A. McCulloch.” Arkansas Gazette, January 25, 1933, p. 4.

“Judge M’Culloch [sic] Dies in St. Louis.” Arkansas Gazette, January 24, 1933, p. 6.

Metcalf, Senator Lee, and Lee Reinemer. Overcharge. New York: David McKay Company, Incorporated, 1967.

Signs, Kelly, “Making the Case for Public Utility Holding Company Laws.” FTC Milestones, November 18, 2014. https://www.ftc.gov/enforcement/competition-matters/2014/11/ftc-milestones-making-case-reform-public-utility-holding-company-laws (accessed April 8, 2022).

Ernest Dumas
Little Rock, Arkansas