Pardee, Don Albert (1837–1919)

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PARDEE, DON ALBERT (1837–1919)

president james a. garfield on May 3, 1881, appointed Don Albert Pardee judge of the Fifth Circuit Court. From 1891 to his death Pardee presided as senior judge of the Fifth Circuit Court of Appeals.

Pardee's most significant constitutional opinions involved the state police power and vested rights. In New Orleans Water-Works Co. v. St. Tammany Water-Works Co. (1882) the judge held that the Louisiana legislature had exceeded its powers by incorporating a new company to compete with an enterprise that had enjoyed a monopoly over the distribution of the water supply to the city ofNew Orleans. "Arguments in cases like the one under consideration," Pardee observed, "are generally based on the assumption that the sovereign … is absolutely unfettered with regard to … all the rights of property. I am not prepared to take this advanced ground." He enjoined the new company from further construction and held that the legislature could not invoke its police power "without compensation of the vested rights of the New Orleans Water-Works Company."

Pardee did accept broader legislative discretion under the police power when moral objectives were involved. In United States ex rel. Hoover v. Ronan, Sheriff (1887) he rejected an argument that a Georgia statute violated the due process and equal protection provisions of the fourteenth amendment by requiring would-be saloonkeepers in unincorporated towns and cities to obtain signatures from residents in order to secure a retail license. In Ex Parte Kinnerbrew (1888), he found on moral benefit grounds that the Georgia local option liquor law was compatible with the federal commerce clause.

Pardee insisted on the power of the federal judiciary to frame a constitutional jurisprudence that separated the state police power into public and private sector concerns. As a result, reverence for vested property rights and public morality gilded his judicial conservatism.

Kermit L. Hall
(1986)