And there it was, in the notes. The very first sentence of Davis's note reads: "The defendant Corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws."
That sentence was followed by three paragraphs of small print that summarized the California tax issues of the case. In fact, the notes by Davis, further down, say, "The main - and almost only - questions discussed by counsel in the elaborate arguments related to the constitutionality of the taxes. This court, in its opinion passed by these questions (italics added), and decided the cases on the questions whether under the constitution and laws of California, the fences on the line of the railroads should have been valued and assessed, if at all, by the local officers, or by the State Board of Equalization"-"
In other words, the first sentence of "The defendant Corporations are persons"-" has nothing to do with the case and wasn't the issue that the Supreme Court decided on.
Two paragraphs later, Davis notes, perhaps in an attempt to explain why he'd started his notes with that emphatic statement, that: "One of the points made and discussed at length in the brief of counsel for defendants in error was that "Corporations are persons within the meaning of the Fourteenth Amendment to the Constitution of the United States.' Before argument Mr. Chief Justice Waite said: "The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.'"
A half-page later, the notes ended and the actual decision, delivered by Justice Harlan, begins - which, as noted earlier, explicitly says that the Supreme Court is not, in this case, ruling on the constitutional question of corporate personhood under the Fourteenth Amendment or any other Amendment.
I paid my seventy cents for copies of the pages from the fragile and cracking 1886 book, and walked down the street to the office of attorney Jim Ritvo, a friend and wise counselor. I showed him what I'd found and said, "What does this mean?"
He looked it over and said, "It's just headnotes."
"Headnotes? What are headnotes?"
He smiled and leaned back in his chair. "Lawyers are trained to beware of headnotes because they're not written by judges or justices, but are usually put in by a commentator or by the book's publisher."
"Are they legal? I mean, are they the law or anything like that?"
"Headnotes don't have the value of the formal decision," Jim said. "They're not law. They're just a comment, by somebody who doesn't have the power to make or determine or decide law."
"In other words, these headnotes by court reporter J.C. Bancroft Davis, which say that Waite said corporations are persons, are meaningless?"
Jim nodded his head. "Legally, yes. They're meaningless. They're not the decision or a part of the decision."
"But they contradict what the decision itself says," I said, probably sounding a bit hysterical.
"In that case," Jim said, "you've found one of those mistakes that so often creep into law books."
"But other cases have been based on the headnotes' commentary in this case."
"A mistake compounding a mistake," Jim said. "But ask a lawyer who knows this kind of law. It's not my area of specialty."
