LIBRARY
UNIVERSITY OF CALIFORNIA DAVIS
CHARLES E. HUGHES
THE STATESMAN AS SHOWN IN THE OPINIONS OF THE JURIST
CHARLES E. HUGHES
The Statesman as Shown in the Opinions of the Jurist
BY
WILLIAM L. RANSOM
JUSTICE OF THE CITY COURT OF THE CITY OF NEW YORK
NEW YORK
E. P. BUTTON & COMPANY 681 FIFTH AVENUE
LIBRARY
UNIVERSITY OF
T\A17TO,
COPYRIGHT, 1916, BY
E. P. DUTTON & COMPANY
Printed in the United States of America
TO MY WIFE
PREFACE
In bringing together for publication, several years ago, "The Constitutional Decisions of John Marshall," the scholarly editor1 made reference to the fact that "save Washington, Hamilton and Lincoln, no American stands higher (than Marshall) as a constructive states man in the work of the evolution of the Union, ' ' and he added that "it is the peculiarity of his work of statesmanship that — practically with out exception — all of it found expression in the course of judicial opinions as Chief Justice."
That great services of constructive National statesmanship should thus have been rendered in a judicial position and given expression through judicial opinions, was not a casual cir cumstance due alone to the ability of Marshall and his contemporaries in the Supreme Court. The creation of the Federal judiciary as a separate department of government, and the delegation to it of powers and duties transcend ing the arbitrament of controversies of private right, made the Supreme Court of the United States all that Washington called it — "the key-
'"The Constitutional Decisions of John Marshall,77 edited, with an Introductory Essay, by Joseph P. Cotton, Jr., of the New York Bar. (1905.)
Vll
viii PEEFACE
stone of our political fabric." DeTocqueville found, eighty-one years ago, on his visit to America, that the Supreme Court had been "placed at the head of all known tribunals/' and James Bryce later observed that "The Su preme Court is the living voice of the Constitu tion — of the will of the people expressed in the fundamental law." Entrusted with the duty of determining co-ordinately, but finally so far as the departments of government are concerned, all questions of the meaning and requirements of the Constitution and Federal laws ; entrusted with the function, in behalf of the Nation, of passing authoritatively upon those questions of adjustment and relationship which give vitality to the National power and solidarity to the Union of States, the Supreme Court has con tinued to be generally the most expert factor in American statesmanship and the most accurate expositor of the ultimate public opinion. Espe cially as to questions of Constitutional inter pretation, the trained judgment, detached from local controversies too commonly called poli tics, has carried an authority which needed no finality of power to give it sanction; casual Presidents and changing Congresses have been in no position to speak so accurately or authori tatively of fundamental questions of the Na tional structure and the National power. The result has been that, through the years, the Supreme Court has embodied, more than either the executive or the legislative departments of
PKEFACE ix
government, those factors of accommodation and adjustment which, under Constitutional forms, have welded a workable National polity from a Confederation of hesitant and mutually distrustful States. Our framework of govern ment and the powers committed to the judiciary under it have made the Supreme Court the exponent of the expanding Nationalism of each succeeding generation, and the statesmanship of the members of that revered tribunal has been at least no less influential than that of the leaders in legislative councils and administra tive responsibility.
The impressive position of the Supreme Court as an expert factor in the formulation of a National outlook upon matters of fundamental political philosophy and procedure, and its use fulness as a continuing agency of adjustment between the departments of government and be tween State and Federal authority, have been commented upon by accurate observers of the American form of government. For example, in the opening paragraph of his "Constitu tional Law of the United States," Dr. von Hoist pointed out the reasons why, under the Ameri can system, the viewpoint of the jurist becomes an indispensable factor in the activities of the statesman, and why likewise the Federal jurist must apply, to his interpretation of the charter of government and the amplification of its ex panding powers, the point of view of the con structive statesman. "Like every constitution
x PREFACE
which has, or can have, a real life," said he, "that of the United States of America is a result of actual circumstances of the past, and not a product of abstract political theorising. . . . Since the life of the people is the basis of the Constitution and undergoes a steady devel opment, the Constitution itself, quite apart from any formal alterations, must have a cer tain capacity for change, and this not the less real because there is no formal statement of it in the instrument itself. A Constitution which resembles a Chinese shoe can suit only a nation which has sunk into Chinese inertia. . . . If the statesman is bound to be, in the practical dis charge of his duties, a conscientious jurist, the jurist must, in his work of examination and testing, always keep in mind the point of view of the statesman." In passing judgment, therefore, upon any matter of the qualifications or the public services of a member of the Su preme Court, there is necessarily kept in mind, not alone his skilled judgment in the decision of controversies between man and man, but also his outlook and vision upon National life and National powers; and in forming estimate of the statesman charged with legislative or execu tive leadership, account must be taken of his views of constitutional power and National dominance, even though finality of interpreta tion as to those matters is committed to the judicial branch of government. The statesman ship of the judicial officer and the judicial in-
PREFACE xi
sight of President and legislator are each an essential part of the effective inter-adjustments of our Federal system, and many of the most sound expressions of National thought and most valuable guide-posts of National policy are to be found in the reported decisions of the Nation's great Court.
In selecting men to discharge the duties of administrative or legislative positions in the Federal sphere, there is often failure to take into account their opinions upon basic questions of governmental purpose and National power. These are looked upon as "constitutional ques tions ' ' ; they are thought of as committed to the determination of the Courts alone. In point of fact, however, the judiciary has only a power of review and limitation, after the legislative and executive branches have acted upon their own opinions as to the powers denned and du ties imposed by the organic law. President and Congress, no less than the courts, have taken oath to support and fulfil the Constitution; its provisions are no less binding upon them than upon the Supreme Court; the constitutional opinions of the President and a majority of Congress ordinarily blend with their views of desirable policy in shaping the course of polit ical action; and as to the overwhelming ma jority of the matters dealt with by the Federal government, the determinations of the executive and legislative departments are final upon ques tions of governmental power, duty and purpose,
xii PEEFACE
and judicial review is not called into action.
The views held by a President or Senator, for example, on questions of State and National power under the Constitution, and on the per missible scope of social-welfare legislation un der the "police power," may be no less decisive in their effect upon the policies of the govern ment than as though those views were held and declared as a member of the Supreme Court. If the Executive endeavours to go beyond the boundaries of National power as defined by the Constitution, or if he endeavours to put in force legislative measures at variance with the fun damental spirit of our laws, the Supreme Court is vested with power to check and curb, and its determinations are final on the question whether Executive proposals are in excess of constitutional powers. Beyond the boundaries as defined by the Supreme Court, the Executive and Congress cannot go, without recourse to the people as the repositories of the ultimate power, through orderly amendment. But if a timid Executive or halting Congress hold views of National powers, duties, rights, and concep tions of the proper boundaries of regulative control in the public interest, which fall, it may be, far short of the National concepts declared by the Supreme Court, then the Constitutional concepts of the President and Congress become controlling and mark the limits of governmental policy within that Administration.
To make the matter still more concrete : If a
PREFACE xiii
President of the United States does not believe that a nation-wide child-labor law is within the scope of powers committed by the Constitu tion to the National government, his view of the Constitution prevents the enactment of such a law, unless a two-thirds vote of Congress over rides him or he changes his mind. Every mem ber of the Supreme Court may believe that un der the "commerce clause" of the Constitution and in the exercise of the broad power of the National government to act effectively for the "public welfare" in connection with essentially National concerns, a Federal child-labour law would be within the power of Congress to enact and of the President to sign and put in force; but as long as the President believes that the safeguarding of the health and robustness of children in industry has been left by the Consti tution in the hands of the States, his veto gives finality to his view of the Constitution and the National powqr, unless a sufficient preponder ance of the members of each House of Congress votes to overcome his adverse view. If the President and Congress hold a narrower view than does the Supreme Court as to the boun daries of National power and action, that is within their discretion, and they are account able only to voters who may not have taken those important factors into account in electing them to administrative or legislative responsi bility. A "strict-construction," "States- rights" President may give effectiveness to a
xiv PREFACE
cramped and devitalised view of the Nation un der the Constitution, and may give finality to such a view in the face of a contrary outlook on the part of the highest judicial authority in the land. On the contrary, a statesman who, as von Hoist phrased it, is "in the practical dis charge of his duties, a conscientious jurist, " with a broad, sound concept of the adaptability of the "unchanging provisions" of the Federal Constitution "to the infinite variety of the changing conditions of our National life, ' ' is in superb position to make effective the important constructive reforms which he undertakes.
These factors which I have indicated give rea son for especial popular interest at this time in the opinions rendered by Charles Evans Hughes during the period of his service in the Supreme Court of the United States. From October of 1910 to June of 1916, he was a mem ber of that tribunal, and dealt day by day with the epoch-making issues of National power and policy brought into its chamber. During those eventful years, the Supreme Court was fulfil ling more than its usual part of ' ' constructive statesmanship in the work of the evolution of the Union, ' ' and it is true of Mr. Hughes during those years, as it was true of John Marshall throughout his period of great service to the Nation, that "practically without exception " "all of his work of statesmanship" "found ex pression in the course of judicial opinions."
PEEFACE xv
During nearly six years, practically the sole record of the views of Mr. Hughes upon Na tional problems and his point of approach to their solution — the record of his constructive statesmanship during five important years — is of necessity to be found in the reported deci sions of the Supreme Court of the United States. When it is proposed by some to trans fer Mr. Hughes from National service in a judi cial position to the supreme executive position of the land, in which his views on constitutional questions would by his oath be no less binding upon him than heretofore, it would seem to be of importance that the public should have means of becoming familiar with those views and with his outlook upon public questions and with the way in which his mind and heart work when he is brought to face vital issues of Na tional policy. From the bound volumes of these reports of the decisions of the Supreme Court should be brought to the people of the United States adequate and accurate information as to the views and vision of Mr. Hughes upon gov ernmental problems, as disclosed by his unre mitting daily work in that Court. That is the purpose of this volume.
Of course, no opinion written or decision par ticipated in by Mr. Hughes as a member of the Supreme Court should now be looked upon by any one as reason for the giving or withholding of support in the political arena. The outcome pf a judicial proceeding cannot with propriety
xvi PKEFACE
be regarded as reason for the political reward or punishment of a judicial officer open-mind- edly participating therein in the course of duty. The work of an independent judiciary has been, and will continue to be, kept free from the pos sible operation of ulterior influence of that kind. At the same time, for reasons which have, I trust, been sufficiently indicated, the judicial utterances of Mr. Hughes are a legiti mate subject of analysis and consideration at this juncture, in so far as they disclose the workings of his mind, his outlook upon Na tional problems, and his manner of reasoning as to problems which come before the Chief Executive before they are possibly brought be fore the Supreme Court. His judicial opinions upon Constitutional questions compose, thus far, his chief contribution to National states manship — a very notable contribution, indeed — and the electorate will find no reason now for excluding Mr. Hughes' memorable opinions from its own available sources of information as to the manner of man he is and the kind of a President he would be likely to be.
The chapters which follow in this volume do not undertake to establish or disprove the qualifications of Mr. Hughes for the Presidency of the United States, much less to argue for or against his election. The purpose is to present information — to make more generally available a quantity of information which otherwise could be found only through delving through
PEEFACE xvii
many volumes of usually dusty law-books — and to present this information in such form as to make it understandable by a reader without legal training. To this end, all of the opinions prepared by Justice Hughes have been brought together and summarised within a single vol ume, and those which deal with questions of Na tional power and policy, as distinguished from the adjudication of controversies based upon private law, have been quoted from at length. An effort has also been made to accompany each such quotation with a fair statement of rele vant facts, helpful in grasping the public bear ings of the views uttered, and then to let the opinions themselves tell their own story and guide the reader to his own impressions of the man who wrote them. I believe that each reader will form a very definite impression of Mr. Hughes from a careful reading of his judi cial opinions, as quoted in the present volume. You may or may not like the manner of man disclosed; you may or may not feel that he should be chosen for the supreme executive office of the land — this volume is in fact con cerned with none of these queries. Its purpose will be fulfilled if the lay reader finds fairly presented herein the information on which he can base a better estimate of Mr. Hughes.
The title of the book indicates that it deals with a man, his service in the Supreme Court, and the opinions which he rendered as a mem ber of that revered tribunal. That is at least
xviii PEEFACE
the pretext, if not altogether the theme. In a broader sense, the volume is a record of an in stitution during nearly six important years of its history, and I shall be disappointed if any reader gains from these pages only an estimate of one of the members of that Court, and fails to gather an impression of the Court itself, as a great, unified working force for the develop ment of National institutions and the conserv ing to the communities of those concerns with which they can most effectively deal. If there is much in the judicial utterances of Justice Hughes which reflects accurately the best thought and policy of the Eepublic as embodied in its organic law, it is because the Supreme Court itself performs accurately and accep- ably that function of interpretation and does its full part in making republican institutions the available instruments of justice under law. This volume has of course been prepared without the knowledge of Mr. Hughes or those charged with the conduct of his campaign. Conceivably they would not wish for its pub lication. It has of necessity been made ready in the scant leisure permitted by daily tasks which demanded first consideration, and I am indebted to Charles G. Keutgen, of the New York Bar, for aid in the scrutiny of manuscript and proofs.
WILLIAM L. EANSOM. New York City, July 20, 1916.
CONTENTS
CHAPTER PAGE
PREFACE • vii
TABLE OF CASES * . xxi
I. INTRODUCTION 1
II. NATIONAL POWER OVER NATIONAL INTERESTS . 15
III. THE DOCTRINE OF REASONABLE RELATIONSHIP 74
IV. THE SAFEGUARDS AGAINST ADULTERATION AND
MlSBRANDING OF FOODS AND DRUGS . . 101
V. THE EIGHT-HOUR WORKDAY AND COMPENSATION FOR OCCUPATIONAL DISABILITIES ARISING
FROM TRADE RISKS 127
VI. "THE PAPER-BOX FACTORY GIRL AND THE CON STITUTION " 136
VII. COMPELLING CHOICE BETWEEN WITHDRAWAL FROM TRADES-UNION MEMBERSHIP AND DIS CHARGE FROM EMPLOYMENT .... 146 VIII. THE RIGHTS AND INDUSTRIAL STATUS OF WOMEN 154 IX. FRANCHISE OBLIGATIONS AND VESTED RIGHTS 164 X. PREJUDICIAL RESTRAINT OF TRADE AND THE NEED FOR CERTAINTY IN THE ANTI-TRUST
ACTS 173
XI. THE CASE OF LEO M. FRANK AND A PUZZLING
QUESTION OF NATIONAL RESPONSIBILITY . 191 XII. COMMUNAL PROPERTY AND RELIGIOUS ORDERS . 205
XIII. THE "SEPARATE COACH" LAW AND THE SLEEP
ING-CAR .213
XIV. STANDARDS OF OFFICIAL RESPONSIBILITY AND THE
EFFICIENCY OF ADMINISTRATIVE ADJUST MENTS , . • 221
XV. THE MAN WHO BROKE His WRITTEN CONTRACT WITHOUT RE-PAYING His EMPLOYER WHAT
HE HAD BORROWED 235
XVI. AMERICA AND THE IMMIGRANT OF TO-DAY AND
YESTERDAY . . » » * . * 248 xix
XX
CONTENTS
CHAPTKB PAGE
XVII. THE COURTS AS ll EXPERT AGENTS OF DEMOC RACY" ........ 262
APPENDIX "A." — TABLE OF OPINIONS WRITTEN
BY JUSTICE HUGHES FOR THE COURT . . 282
APPENDIX "B." — TABLE OF DISSENTS BY JUS TICE HUGHES FROM THE MAJORITY 'ACTION 328
INDEX . , 347
TABLE OF CASES
PAGE
Adair v. U. S., 208 U. S. 161 146, 147, 148, 153
Adams Express Co. v. New York, 232 U. S. 14 73
Aluminum Co. v. Eamsey, 222 U. S. 251 134
American Lithograph Co. v. Werckmeister, 221 U. S. 603 272
Anderson v. Pacific Coast SS. Co., 225 U. S. 187 73
Arizona & New Mexico Ey. Co. v. Clark, 235 U. S. 669 ... 274
Atlantic Coast Line v. Georgia, 234 U. S. 280 53
Atlantic Coast Line v. Eiverside Mills, 219 U. S. 186 87
Bailey v. Alabama, 219 U. S. 219 235-247
Bailey v. The State, 158 Alabama 25 236
Baltimore & Ohio E. E. Co. v. Interstate Commerce Com mission, 221 U. S. 612 127, 128
Bauer & Co. v. O'Donnell, 229 U. S. 1 183
Bosley v. McLaughlin, 236 U. S. 385 162, 163
Brown v. Elliott, 225 U. S. 402 271
Burt v. Oneida Community, 137 N. Y. 346 211
Camfield v. U. S., 167 U. S. 518 77
Champion v. Ames, 188 U. S. 331 65
Chicago, B. & Q. Ey. Co. v. McGuire, 219 U. S. 549. .79, 88, 134
Chicago, M. & St. P. Ey. Co. v. Iowa, 233 U. S. 334 73
Chicago, M. & St. P. Ey. v. Minneapolis, 232 U. S. 430.. 167
Chicago, E. I. & P. Ey. Co. v. Arkansas, 219 U. S. 453 130
Chiles v. Chesapeake & Ohio Ey. Co., 218 U. S. 71 217
City of Memphis v. Cumberland Tel. & Tel. Co., 218 U. S.
624 275
City of Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S.
58 168
Collins v. Kentucky, 234 U. S. 634 171, 221
Coppage v. Kansas, 236 U. S. 1 147, 148
Dalmas v. Kemble, 215 Pennsylvania State Eeports 410. .. 278
Dreier v. U. S., 221 U. S. 394 272
Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S.
373 179, 182
Engel v. O'Malley, 219 U. S. 128 249
Ex parte Eiley, 94 Alabama 82 236
Ferris v. Frohman, 223 U. S. 424 185
Frank v. Mangum, 237 U. S. 309 191-203
Fraternal Mystic Circle v. Snyder, 227 U. S. 503 269
Goesele v. Brineler, 14 How. (N. Y.) 589 211
xxi
xxii TABLE OF CASES
PAGE
Graham v. West Virginia, 224 U. S. 616 270
Grand Trunk W. By. Co. v. South Bend, 227 U. S. 544. .. 170
Grant v. U. S., 227 U. S. 74 272
Hall v. De Cuir, 95 U. S. 485 218
Hawley v. Walker, 232 U. S. 718 127, 141, 145
Heim v. McCall, 239 U. S. 175 259
Henry Co. v. Dick Co., 224 U. S. 1 180
Herencia v. Guzman, 219 U. S. 44 269
Hipolite Egg Co. v. U. S., 220 U. S. 45 66, 119
Hoke v. U. S., 227 U. S. 308. 67
Houston & Texas By. Co. v. U. S., 234 U. S. 342 18, 49
Illinois Central K. E. Co. v. Skaggs, 240 U. S. 66 269
International Harvester Co. v. Kentucky, 234 U. S. 216. .. 178
Ives v. South Buffalo Ey. Co., 201 N. Y. 271 76
Kerfoot v. Farmers & Merch. Bk., 218 U. S. 281 5
Kiernan v. Portland, Oregon, 223 U. S. 151 227
Los Angeles Switching Cases, 234 U. S. 294 230
Louisiana Ey. & Nav. Co. v. New Orleans, 235 U. S. 164. . 166
Louisville & N. E. E. Co. v. Garrett, 231 U. S. 298 92, 230
Louisville, etc., Ey. Co. v. Mississippi, 133 U. S. 587 218
Luria v. U. S., 231 U. S. 9 257
McCabe v. Atchison, Topeka & S. F. Ey. Co., 235 U. S.
151 213-220
Memphis v. Cumberland Tel. & Tel. Co., 218 U. S. 624 275
Miller v. Wilson, 236 U. S. 373 128, 145, 162, 163
Minnesota Bate Cases, 230 U. S. 352. . .15, 17, 19, 23, 53, 89
Missouri & Kan. Ey. Co. v. City of Olathe, 222 U. S. 187. . 167
Missouri, K. & T. Ey. Co. v. U. S., 231 U. S. 118 130
Mobile, etc., B. B. Co. v. Turnipseed, 219 U. S. 35 134
Muller v. Oregon, 208 U. S. 412 127, 162, 163
Mutual Loan Co. v. Martell, 222 U. S. 225 161
New York Electric Lines Co. v. Empire City Subway Co.,
235 U. S. 179 164
New York v. Becker, 241 U. S. — 7
Noble State Bank v. Haskell, 219 U. S. 104 77
Norfolk & Western Ey. Co. v. Holbrook, 235 U. S. 625 269
Northern Pac. Ey. Co. v. North Dakota, 236 U. S. 595... 89
Owensboro v. Cumberland Tel. & Tel. Co., 230 U. S. 58. . . 168
Pacific Telephone Co. v. Oregon, 223 U. S. 118 227
People v. Marcus, 185 N. Y. 257 147
Philadelphia, B. & W. By. Co. v. Schubert, 224 U. S. 603 . . 134
Philadelphia Co. v. Stimson, 223 U. S. 605 73
Plessy v. Ferguson, 163 U. S. 540 216
Port Bichmond Ferry v. Hudson County, 234 U. S. 317. .. 73
Price v. Illinois, 238 U. S. 446 117
Purity Extract Co. v. Lynch, 226 U. S. 192 122
Eeaves v. Ainsworth, 219 U. S. 296 224, 225
Eussell v. Sebastian, 233 U. S. 195 167, 168
TABLE OF CASES xxiii
PAGE
Santa Fe Ey. Co. v. Grant Bros., 228 U. S. 177 185
Sault Ste. Marie v. International Transit Co., 234 U. S.
333 73
Savage v. Jones, 225 U. S. 501 121
Schwartz v. Duss, 187 U. S. 8 211
Seven Cases of Eckmon's Alterative v. U. S., 221 U. S.
488 6, 65, 105
Slaughter House Cases, 16 Wall. (U. S.) 36 77
Slocum v. N. Y. Life Ins. Co., 228 U. S. 364 277
Standard Oil Co. v. U. S., 221 U. S. 1 175
Standard Stock Food Co. v. Wright, 225 U. S. 540 122
St. Benedict Order v. Steinhauser, 234 U. S. 640 205-211
Stettler v. Oregon (not yet decided) 138
Sturges v. Beauchamp, 231 U. S. 320 83, 131
Taney v. Penn Bank, 232 U. S. 174 186
Tang Tun v. Bdsell, 223 U. S. 673 260
Thaddeus Davids Co. v. Davids, 233 U. S. 461 186, 187
Thompson v. Thompson, 218 U. S. 611 5, 154, 156
Toney v. The State, 141 Alabama 120 236
Truax v. Raich, 239 U. S. 33 251-257
Union Lime Co. v. Chicago & N. W. Ey. Co., 233 U. S.
211 171
IT. S. v. American Tobacco Co., 221 U. S. 106 175
U. S. v. Birdsall, 233 U. S. 223 222
U. S. v. Citroen, 223 U. S. 424 185, 221
U. S. v. Coca Cola Co., 241 U. S. 265 106
U. S. v. Johnson, 221 U. S. 488 6, 65, 101
U. S. v. Midwest Oil Co., 236 U. S. 459 223
U. S. v. Eoss, 239 U. S. 530 » 224
U. S. v. Smull, 236 U. S. 405 222
Wilmington Transp. Co. v. California E. E. Commission,
236 U. S. 151 73
Wilson v. U. S., 221 U. S. 361 272
CHARLES E. HUGHES
THE STATESMAN AS SHOWN IN THE OPINIONS OF THE JURIST
CHAPTER I
lETTKODUCTIOET
CHAELES EVANS HUGHES was appointed to the Supreme Court by President Taft on April 25, 1910. He was then nearing the close of his second term as Governor of New York, having been first elected in 1906. Before becoming Governor, he had been a practising lawyer in New York City since 1884, with the exception of the years 1891 to 1893, when he was a pro fessor in the Cornell University College of Law at Ithaca. His professional eminence had re ceived public recognition through his service in 1905 and 1906 as counsel to the special investi gating bodies of the New York Legislature, known as the Stevens Gas and Electric Light ing Committee and the Armstrong Life Insur ance Investigation Committee. In 1906 he had been designated as one of the special counsel of the United States Department of Justice to initiate steps for the prosecution of the so- called coal-owning and coal-carrying railroads for violations of the Anti-Trust and Anti-Ee- bate laws. As Governor of New York, he had taken a large part in the draughtsmanship, as well as advocacy, of constructive statutes, such
l
2 CHAELES E. HUGHES
as those creating the New York Public Service Commissions and those formulating more ade quate standards for the conduct of the affairs of life insurance companies. He had also been responsible for the creation and personnel of the so-called Wainwright Commission, whose monumental inquiry into the social aspects of occupational injury and disease was the start ing-point of the " social- justice ' ' campaign in many States. Governor Hughes worked in the closest co-operation with the "Wainwright Com mission throughout its exhaustive labours, and gave executive approval to the Workmen's Compensation Act of 1910, recommended by the Commission as a frankly experimental begin ning of progress in that domain of awakened social conscience.
The Senate of the United States, on May 2, 1910, confirmed the appointment of Mr. Hughes, but the October Term of 1909 was then nearing its close and Mr. Hughes was in the midst of important tasks as Governor of New York. With the approval of the President, he did not resign as Governor or take his seat as a member of the Supreme Court, until October 10th. The vacancy thus filled was that created by the death of Justice David J. Brewer of Kansas, who had died on March 28, 1910. An interest ing commentary upon the change which a cen tury has brought in the prestige and rank of the Supreme Court is afforded by the fact that
INTRODUCTION 3
its first Chief Justice resigned to become Gov ernor of New York, after having served as Minister to England for a year without with drawal from his judicial office, and that Oliver Ellsworth, whom President Washington subse quently appointed as Chief Justice, spent two years abroad as Commissioner to France, like wise without resigning the Chief Justiceship. As Willoughby says,1 "a position on its bench was then considered not as important as many positions now ranking far below it. Such posi tion was not even considered incompatible with the holding of another office at the same time." The founders of the republic felt that, in com mon with any other citizen, a member of the Supreme Court might be called to any other post of public service as the public need arose, with or without retirement from his judicial place, as the circumstances seemed to warrant. This view gave no sanction, however, to mani fest political bias on the part of a member of the Nation's highest Court, as was shown by the failure of the Senate to confirm Washing ton's appointment of Rutledge of North Caro lina as successor of John Jay in the Chief Justiceship. After Rutledge had received in formation of his appointment, he delivered a speech which disclosed an intense partisanship, and this was forthwith recognised as disquali-
Court of the U. S.," by Westel W. Willoughby. (Johns Hopkins University Studies: 1890.)
4 CHARLES E. HUGHES
fying him for the place for which he had been named.
At the time Mr. Hughes was translated from executive to judicial responsibility, he was 48 years of age, and thus by nine years the young est member of the Court. Chief Justice Fuller of Illinois had died on July 4, 1910, and Justice John Maynard Harlan of Kentucky presided over the Court from the opening of the October Term until December 19th, when Justice Edward Douglass White of Louisiana took the oath as Chief Justice, by appointment of Presi dent Taft. At the time Mr. Hughes entered upon his duties, the Court was made up of Associate Justices Harlan, "White, Joseph Mc- Kenna of California, Oliver Wendell Holmes of Massachusetts, William R. Day of Ohio, William Henry Moody of Massachusetts, Hor ace Harmon Lurton of Tennessee. Justice Moody, however, had suffered for some months from a disabling illness, and on November 20th accepted retirement under a special Act of Con gress. The virtual re-constituting of the per sonnel of the Court during the year 1910 was completed by the appointment, on December 12th, of Justice White to be Chief Justice, of Joseph Rucker Lamar of Georgia as successor of Justice Moody, and Willis Van Devanter of Wyoming as successor of Mr. White as Asso ciate Justice. The Court thus had again its full quota of members, and was composed of Chief Justice White and Associate Justices Harlan,
INTRODUCTION 5
McKenna, Holmes, Day, Lurton, Hughes, Van Devanter, and Lamar. This rugged and well- balanced working organisation was unbroken until the death of Justice Harlan, on October 14, 1911. On March 18, 1912, Mahlon Pitney, Chancellor of New Jersey, took his seat as Jus tice Harlan 's successor. On July 12, 1914, Jus tice Lurton died during vacation, and at the opening of the October Term of that year, At torney-General James Clark McReynolds be came a member of the Court, by appointment of President Wilson. On January 2, 1916, Justice Lamar died. Louis Dembitz Brandeis of Bos ton took seat as his successor, immediately be fore Justice Hughes tendered his resignation on the tenth of June.
The first reported opinion written by Justice Hughes was that in the case of Kerfoot against the Farmers' and Merchants' Bank, reported in the 218th volume of the United States Reports, at page 281. This case was argued before the Court on October 25, 1910, fifteen days after he went on the bench ; the opinion prepared by Justice Hughes was handed down on November 7th, less than two weeks later. His first re ported dissent came in the case of Thompson against Thompson? on December 12th of that year. In this case Justices Harlan, Holmes and Hughes found themselves unable to accept the majority opinion that a wife could not main-
*218 U. S. Keports, page 611.
6 CHAELES E. HUGHES
tain an action in the District of Columbia against her husband, for damages for an as sault and battery committed against her person, and Justices Holmes and Hughes concurred in Justice Harlan's trenchant assertion of a con trary opinion. The first dissenting opinion written by Justice Hughes was in the case of United States against Johnson,2 on May 29, 1911. In this dissent, concurred in by Justices Harlan and Bay, Justice Hughes contended that the "mis-branding" provisions of the Food & Drugs Act of 1906 applied to false statements of facts as to the curative qualities of articles sold as drugs and medicines, and that "mis- branding" did not relate merely to false state ments of the identity of the article, for exam ple, its strength, quality, purity, and the like. The majority of the Court felt otherwise, but at the beginning of 1916 Justice Hughes was able to write for a unanimous Court an opinion upholding the constitutionality of the Sherley Amendment of 1912 to the Food & Drugs Act, by which amendment Congress had given prompt legislative sanction to the view ex pressed by the minority in the Johnson case and had unmistakably declared that the penalties against mis-branding should be deemed applic able to any "false and fraudulent" statements on the package or label "regarding the cura tive or therapeutic effect of such article" sold. The last opinion written by Justice Hughes
*221 U. S. Reports, page 488.
INTRODUCTION 7
as a member of the Supreme Court was handed down on June 12, 1916, the Monday following his resignation. This opinion x dealt with the paramountcy of New York State fish and game regulations over the fishing rights of "Western New York Indians on tribal lands alienated by them with attempted reservation of hunting and fishing rights. It had been prepared by Justice Hughes and approved by his colleagues before his resignation. " After that event," so states the note which precedes the opinion as reported in volume 241 of the United States Reports, "it was again considered, re-adopted, and delivered by White, Ch. J."
From the first, he had made clear his belief and desire that his judicial work was his life work, worthy of the utmost energy and ability at his command, and in a number of unmis takable ways he had made known his desire that friends and opponents alike should cease to think of him in any political connection. He wished to remain upon the Supreme Court; he believed that he ought to be permitted to re main there ; and at no time did he deviate in any discernible degree from that wish and that be lief. His concise, matter-of-fact opinions, free from any trace of utterance which could be re garded as written for the public ear or for any purpose foreign to the necessities of the con troversy at bar, tend to refute any suggestion
*New York vs. Becker (241 U. S. Eeports .
8 CHAELES E. HUGHES
that at any time from October of 1910 to June of 1916 was there a willingness on his part to be counted a factor in future political calcula tions. On repeated occasions, he made known his insistent opposition to the use of his name in connection with the presidential nomination which he had deliberately placed aside in ac cepting the appointment tendered by President Taft. With one of his predecessors,1 appointed to the Supreme Court by President Lincoln, Justice Hughes believed, however, that "the Chief Magistracy of the Republic should neither be sought nor declined by any American citizen," especially at such a time of National difficulty as was presented in June of 1916 ; he felt that the citizenship of the Nation had the right to summon to the Presidency any man in the land, and that no man had the right to place his own preference for a present post of service above the right of the people to requisition for the Presidency the best ability at their com mand. He made known his own preference for remaining in the Supreme Court, his view that it was for him the highest post of service to the Nation, and his belief that nothing should be done to interrupt his work in that tribunal ; but when the time and the summons came, he said, with perfect truthfulness :
1 Justice David Davis of Illinois, nominated by the Labor Beform Party in 1872. In 1877, Justice Davis resigned from the Supreme Court to accept election to the U. S. Senate from Illinois.
INTRODUCTION 9
I have not desired the nomination. I have wished to remain on the bench. But in this critical period in our National history, I recog nise that it is your right to summon and that it is my paramount duty to respond. ... I should have been glad to have had that respon sibility placed upon another. ... I have re signed my judicial office. ... I accept the nomination.
On June 10, 1916,^ his resignation terminated the judicial service begun on October 10, 1910.
During this period of approximately five years and eight months ' service in the Supreme Court, and within the twenty-four volumes of official reports numbered from two hundred and eighteen to two hundred and forty-one, Justice Hughes prepared 150 opinions which were ren dered as the opinions of the Court, and in only nine instances was there dissent from his opin ion as prepared. In but three instances did more than one Justice dissent.
He could not with accuracy be called a ' * dis senting judge." Throughout his judicial career, there was no trace of that showy isola tion of individual opinion, whose reverberating sentences have sometimes shaken public con fidence in the certainty of legal principles. On only thirty occasions did he find himself aligned with a minority of the Court, and in only six of those instances did he write the dissenting opinion. In fourteen of the thirty occasions, he concurred in dissenting opinions
10 CHARLES E. HUGHES
prepared by men long his seniors in the Court ; and in six instances he joined with colleagues in dissenting without filing memoranda of rea sons. When he did dissent, it was usually with large minorities and on close divisions ; in about two instances throughout his service on the bench was he alone in declaration of variance from the majority view.
In the appendices of this volume will be found a complete resume 1 of all the opinions which he wrote in behalf of the Court during his period of service on the bench, and also an equally interesting table2 of summary of the controversies as to which he found himself [^aligned with a minority of the Court.
He was in fact, if all indications of the man and his work may be accepted as indicating a conclusion, what may be termed a "team-work judge." He worked in close co-operation and fellowship with his associates, in that task which he often referred to as "in a democracy . . . the highest privilege of vocation." To him were assigned many of the cases requiring an unusual amount of physical as well as in tellectual labour of the most exacting sort, and he brought to that work an incisive and ana lytical mind, a conscience sensitive to funda mental right, and what Mr. Cotton has called "so sound a common sense for the working of legal theory, so just an instinct for the National
1 See page 282, post. a See page 328, post.
INTRODUCTION 11
welfare, and so austere and unswerving a judi cial fairness and openness of mind."
He displayed fl^Jbroad^_and sympathetic knowledge of human affairs, and that knowl edge was Ms guidance, rather than any pre conceptions of social, economic or political the ory. Notably along lines which will be set out in later chapters of this volume, he made a substantial and valuable contribution to the orderly development of American law, and he did it by working incessantly to make judicial processes effective in the application of funda mental concepts to new conditions. His opin ions were clear and rugged; they teem with facts, details, corroboration gained from au thoritative sources far outside the law books; they are deficient in any display of vain learn ing and mere erudition for its own sake, which might make them more attractive to a lay reader but less compact in dealing with the essential issues.
With hardly an exception, his opinions reveal a man who is looking at actualities and is fac ing forward. His judicial statesmanship as revealed by his opinions meets fully Burke 's definition :
A disposition to preserve, and an ability to improve taken together, would be my standard of a statesman.
And he also realised with Burke that "a state without means of change is without the means
1
12 CHARLES E. HUGHES
of its own conservation." The free play of his compact and incisive reasoning touched many topics — copyright law, the patient examination of the tribal records on which rest titles of the lands of Indian wards, bankruptcy and commer cial law, the simplification of procedure, taxa tion, the franchises and rates of public service corporations, and many others — but his great and memorable service was in re-definition and application of the boundaries of State and National authority, and in welding together anew the economic and political elements of a dominant Nationalism.
It could with propriety be said of him, as it was said of John Marshall by Mr. Bryce, that
He grasped with extraordinary force and clearness the cardinal idea that the creation of ' a National government implies the grant of all , such subsidiary powers as are requisite to the effectuation of its main powers and purposes, but he developed and applied this idea with so much prudence and sobriety, never treading on purely political ground, never indulging in the temptation to theorise, but content to follow out as a lawyer the consequences of legal prin ciples, that the Constitution seemed not so much to rise under his hands to its full stature, as to be gradually unveiled by him until it stood revealed in the harmonious perfection of the form which its framers had designed.
Justice Hughes vindicated afresh the ade quacy and practicability of the Constitutional
INTRODUCTION 13
concepts of the boundaries of State and Na tional action ; he established in concrete fashion the effectiveness of the historic concepts of con trol ; he answered acceptably a. challenge which the complexity of new transportation and in dustrial problems seemed for a time to make to the Federal system.
He was "a team-work judge, " not an unrea soning- adherent of individual opinion. Per haps the best thing that can be said about his work, under all the conditions of the National life of the past five years, is that it does not, and was not made to, stand out in any way from the trend of policy and decision of the Court as a whole. This record of his opinions and utterances is almost equally a record of the opinions and utterances of the Court as a whole. JiM^wag^ progressive and forward- looking, so were M$ colleagues. The great issues brought before the Court were threshed out in its conferences, and thereby was devel oped a patriotic unity and agreement of view which has fortified both the Court and the Con stitution in public confidence. There may be understanding of what Justice Hughes meant, in saying before the New York County Law yers' Association in 1911, that
In the conferences of the Justices of the Su preme Court of the United States, there is ex hibited a candour, a comprehensiveness, a sin cerity, and a complete devotion to their task, that I am sure would be most gratifying to the
14 CHARLES E. HUGHES
entire people of the Union, could they know more intimately what actually takes place.
And we may understand what former Justice John Archibald Campbell meant in saying, in the course of that intimate description of the work and conferences of the Court which is to be found in his remarks at the exercises in com memoration of Justice Benjamin E. Curtis in 1874, as reported in the twentieth volume of Wallace's Reports, that of all the enumerated duties performed by a Justice of the Supreme Court, "the most arduous and responsible duty is in the conference."
In a tale adapted from the Talmud, there is a comparison which may be used to characterise the manner and spirit of approach to public questions which seems to stand out through the judicial service of Charles E. Hughes. Mas tery of law and its development and applica tion are there likened to a great heap of dirt that needs to be cleared away:
The foolish man says : " It is impossible that I should be able to remove this immense heap. I will not attempt anything so impossible. I will ignore it, and pass it by, and say there is no such obstacle/' But the wise man says: "I see it. It is there. It has to be dealt with. I will remove a little to-day, some more to-mor row, and more the day after, and thus in time I shall have removed it all ; and the fathers will be glad."
CHAPTER H
NATIONAL POWER OVER NATIONAL INTERESTS
THE monumental and distinctive service ren dered by Mr. Hughes in the Supreme Court was in the so-called "State Rate Cases" — an epochal series of controversies which came up from the commonwealths of the Mississippi Valley and South-west and subjected our dual system of State and National sovereignty to the most severe strain and test since the Civil War. To him there was entrusted, not only the pro digious labours of the perusal of an unprece dented quantity of printed records and ex haustive briefs, incident to the examination of the intricate questions of valuation, rates, re turns, fixed charges, depreciation, repairs, in tangible and physical property, franchises, and the like, on which largely depended the deter mination of the reasonableness or confiscatory character of hundreds of orders of State Com missions affecting thousands of rates over diverse areas, but also the preparation of opin ions which necessarily undertook the task of making concrete, understandable, workable, and consistent, the practical applications of the gen eral principles of State and National authority,
15
16 CHAELES E. HUGHES
hitherto stated in the most general terms in the Federal Constitution and expounded in termin ology hardly less general, by Marshall and his successors in the constructive statesmanship of the Supreme Court of an earlier day.
There was doubt on the part of many whether it was physically possible that a court, before which issues of great difficulty and public im portance were coming day by day, without end and almost without interlude, could in addition perform, in any adequate and acceptable fash ion, the task of scrutiny and review of such voluminous records, calling, as each case did, for detailed examination of facts as to the rela tive adjustments of. rates, the income from different classes of traffic, the cost of trans portation of the various classes of traffic, and the whole issue of the reasonableness of the returns from the rates as fixed by State author ity. As one saw wagon-loads of exhibits brought into hearings before the State Commis sions and the Interstate Commerce Commis sion; as one looked upon the bulky volumes of testimony and formidable libraries of briefs prepared with laborious effort by little armies of specialised counsel; as one saw maps and tariffs piled before special masters and listened to the droning narrative of rate-experts and tariff -men as to the way in which schedules have been built up through the years and the factors necessarily taken into account in even a single community, to say nothing of a State or region,
NATIONAL POWER 17
it seemed to many that the decisive challenge to National regulation had come, and that the whole fabric was imperilled by the physical im possibility that a busy court could perform with thoroughness and fidelity to fundamental principles the recurring task of keeping the rivalries of States and sections within the con fines of the fair rights of invested property and the paramount interests of the Nation as a whole.
Such was the challenge to National regula tion of essentially National concerns — should that National control in the National sphere be affirmed, clarified, made effective, or was it now to break down, virtually under the weight and complexity of the demand made upon the Su preme Court? Mr. Hughes was the youngest member of the Court ; he had an infinite capac ity for patient and assiduous application to facts ; he had come from the atmosphere of rate and regulative matters in- New York State; upon him devolved no small part of the detail work in the rate cases. The statement may with entire accuracy be made that few men of ma ture years and ripened experience could have physically performed the task mastered by Jus tice Hughes between the close of the argument in the Minnesota Rate Cases * on April 12, 1912, and the handing down of the remarkable series of opinions which began with the determination of the Minnesota cases on June 9, 1913. His
1 230 U. S. Eeports, page 352.
18 CHAELES E. HUGHES
opinion in the Minnesota case alone covers a hundred pages, many of them compact with closely marshalled facts. From that date until the filing of the opinion in the so-called Shreve- port case * a year later less a day, there was a continuance of the same labours, and opinions were prepared in nine cases involving volumi nous printed records, intricate facts, and per haps the most far-reaching issues ever pre sented to the Court in a single line of cases.
Nor was the answer merely one of the ade quate performance of the physical task. For years there had been strain and conflict be tween State and National authority in many fields, notably that of railroad regulation, be cause of uncertainty as to the mode of apply ing concepts almost a century old, to complex conditions which Marshall, Curtis and Storey in no wise anticipated. The task of judicial clari fication and definition was an undertaking in constructive statesmanship second perhaps only to that performed by Marshall. It will remain matter for regret to many that the sum mons to another field of public service led Jus tice Hughes to leave the Supreme Court with this task of judicial statesmanship splendidly begun, but far from completed. His opinion in the Minnesota Rate Cases and subsequently in the Shreveport case will ever be quoted as chart and compass of the metes and bounds of State and National sovereignty in the regulative field.
*234 U. S. Reports, page 342.
NATIONAL POWER . 19
These opinions are truly the charter of a vital ised Nationalism.
In the Minnesota Rate Cases, there was challenge of the constitutionality of acts of the Minnesota Legislature and the State Railroad and Warehouse Commission, in relation to freight and passenger rates between points wholly within the State. It was asserted, in behalf of the carriers, that the action of the State authorities demanded rates so unre- munerative and confiscatory as to place a direct burden upon interstate commerce, accomplish results forbidden by the Interstate Commerce Act, and exceed the permissible limits of State action as to instrumentalities used in inter state commerce, even though the action was in terms addressed only to segments of the use of such instrumentalities exclusively within the State. In the so-called Shreveport case, there was challenge of the dominance of the Federal power over the State power, where it appeared that the State regulative authority had fixed intrastate rates so low and on such a basis, in relation to interstate rates in part through the same territory, as to inflict injury upon inter state commerce and perpetuate results which the Interstate Commerce Commission had ex pressly found to be discriminatory and viola- tive of the regulative rules declared by Con gress as to interstate transportation. The as sertion was made that the Federal government
20 CHARLES E. HUGHES
was not empowered by the "commerce clause" to control or direct the doing of anything as to a rate purely intrastate, especially a rate fixed by State authority, and that if Congress found that injurious discriminations against inter state commerce were arising from the relation of interstate and intrastate rates in the terri tory affected, Congress might authorise the reduction of the former to the plane of the latter, but could not require the carriers or the State Commission to readjust the intrastate rates in accordance with a determination made by the Interstate Commerce Commission as to the proper relationship.
A volume would be necessary for the ade quate discussion of the determinations of the Supreme Court in these rate cases alone. The questions of valuation, properties, franchises, depreciation charges, earnings, rate of return, and the like, cannot be here considered at all, although the determinations in these respects will have far-reaching effects in the domain of railroad administration and regulative prac tice. On the issues of State and National au thority, the holdings of the Court, through Jus tice Hughes, may perhaps be briefly although unsatisfactorily summarised under four headings :
As to the power of Congress over interstate commerce and interstate rates: The authority of Congress over interstate commerce and in-
NATIONAL POWER 21
terstate rates is paramount, dominant, exclu sive. This dominance is held to extend to every part and phase of interstate commerce and to every agency and instrumentality by the use of which it is anywhere carried on. It cannot be denied, thwarted or limited through any indi rection or through the mere complexity of the transportation business and the inevitable com mingling of intrastate with interstate opera tions and properties. Interstate commerce is National, and the Nation is supreme within the National field.
As to the power of the State over interstate commerce: The State has no authority at all as to interstate rates, nor has the State, irre spective of any action by Congress, any power of direct control with respect to those subjects, embraced within the constitutional grant, which are of such a nature as to demand that, if regu lated at all, their regulation should be uniform and prescribed by a single authority. As to matters deemed at any time to require a general system or uniformity of regulation, the power of Congress is exclusive. As to other matters admitting of diversity of treatment according to the local conditions, the States may act, up to such time as Congress sees fit to act in that respect. Measures of local improvements, local facilities, protective measures as to safety, health, convenience, morals, or welfare of the people, may be put in force by the States, up
22 CHARLES E. HUGHES
to such time as Congress, in response to a con viction that changed conditions have brought about a National need, sees fit to displace the local regulations with its own paramount and exclusive authority as to any of such matters.
As to the power of the State over intrastate rates: Authority over rates and commerce wholly within the State belongs to the State, and there is reserved to the State plenary pow er of regulation of intrastate rates and traffic, affected and limited only by the exertion of the National power with respect to interstate com merce and its instruments as utilised also in in trastate commerce. The authority of the State over intrastate rates and commerce is limited or affected only by the actual exercise of the para mount National power, and is not affected by the existence of an unused and dormant Federal power of action for the better protection of interstate commerce.
As to the power of Congress over intrastate commerce and rates: The Nation is equipped with a power, supreme and plenary, to protect its authority over National commerce from being obstructed or destroyed by any opposing action, even the rivalries or counter-wishes of State or local governments. Congress may, in its discretion, for the better regulation and control of interstate commerce, take authority over intrastate rates and transactions of car riers doing an interstate business, and may re-
NATIONAL POWER 23
quire such readjustment of intrastate rates and regulations as the paramount interests of the National commerce may make advisable, even though such intrastate rates and regulations have been determined and prescribed by State authority and have the full approval of the carriers concerned.
In the opinion prepared by Justice Hughes in the Minnesota Rate Cases, he explained the ramifications of the subject in great clearness of detail. Only a part of this classic opinion may be quoted within the confines of this vol ume ; it merits reading in entirety :
The controversy thus arises from opposing conceptions of the fundamental law, and of the scope and effect of Federal legislation, rather than from differences with respect to the salient facts.
For the purpose of the present inquiry, the rates fixed by the State must be assumed to be reasonable rates so far as intrastate traffic is concerned; that is, they must be taken to be rates which the State, in the exercise of its legislative judgment, could constitutionally fix for intrastate transportation separately consid ered. If the State rates are not of this charac ter — a question to be dealt with later — they cannot be sustained in any event; but, assum ing them to be otherwise valid, the decree be low, with respect to the present branch of the case, rests upon two grounds: (1) That the action of the State imposes a direct burden
24 CHARLES E. HUGHES
upon interstate commerce; and (2) that it is in conflict with the provisions of the Act to Regu late Commerce.
These grounds are distinct. If a State enact ment imposes a direct burden upon inter state commerce, it must fall regardless of Fed eral legislation. The point of such an objection is not that Congress has acted, but that the State has directly restrained that which in the absence of Federal regulation should be free. If the acts of Minnesota constitute a direct burden upon interstate commerce, they would be invalid without regard to the exercise of Federal authority touching the interstate rates said to be affected. On the other hand, if the State, in the absence of Federal legislation, would have had the power to prescribe the rates here assailed, the question remains whether its action is void as being repugnant to the statute which Congress has enacted.
Prior to the Act to Regulate Commerce, car riers fixed their interstate rates free from the actual exertion of Federal control; and under that Act, as it stood until the amendment of June 29, 1906, 34 Stat. 584, c. 3591, the Inter state Commerce Commission had no power to prescribe interstate rates. The States, how ever, had long exercised the power to establish maximum rates for intrastate transportation. Was this power, apart from Federal action, subject to the limitation that the State could not fix intrastate rates, reasonable as such, generally throughout the State, but only as to such places and in such circumstances that the interstate business of the carriers would not
NATIONAL POWER 25
be thereby affected! That is, was the State debarred from fixing reasonable rates on traffic, wholly internal, as to all State points so situ ated that as a practical consequence the carriers would have to reduce the rates they had made to competing' points without the State, in order to maintain the volume of their interstate busi ness or to continue the parity of rates or the relation between rates as it had previously existed? Was the State, in prescribing a gen eral tariff of reasonable intrastate rates other wise within its authority, bound not to go below a minimum standard established by the inter state rates made by the carriers within com petitive districts! If the State power, inde pendently of Federal legislation, is thus limited, the inquiry need proceed no further. Other wise it must be determined whether Congress has so acted as to create such a restriction upon the State authority theretofore existing.
(1.) The general principles governing the exercise of State authority when interstate commerce is affected are well established. The power of Congress to regulate commerce among the several States is supreme and plenary. It is "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution/' The conviction of its necessity sprang from the disastrous experiences under the Confederation when the States vied in discriminatory meas ures against each other. In order to end these evils, the grant in the Constitution conferred upon Congress an authority at all times ade-
26 CHAELES E. HUGHES
quate to secure the freedom of interstate com mercial intercourse from State control and to provide effective regulation of that intercourse as the National interest may demand. The words " among the several States " distinguish between the commerce which concerns more States than one and that commerce which is con fined within one State and does not affect other States. "The genius and character of the whole government," said Chief Justice Mar shall, "seem to be that its action is to be ap plied to all the external concerns of the Nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere, for the purpose of exe cuting some of the general powers of the gov ernment. The completely internal commerce of a State, then, may be considered as reserved for the State itself." This reservation to the States manifestly is only of that authority which is consistent with and not opposed to the grant to Congress. There is no room in our scheme of government for the assertion of State power in hostility to the authorised exercise of Federal power. The authority of Congress ex tends to every part of interstate commerce, and to every instrumentality or agency by which it is carried on; and the full control by Con gress of the subjects committed to its regulation is not to be denied or thwarted by the com mingling of interstate and intrastate opera tions. This is not to say that the Nation may deal with the internal concerns of the State, as
NATIONAL POWER 27
such, but that the execution by Congress of its constitutional power to regulate interstate com merce is not limited by the fact that intrastate transactions may have become so interwoven therewith that the effective government of the former incidentally controls the latter. This con clusion necessarily results from the supremacy of the Nationalpower within its appointed sphere.
The grant in the Constitution of its own force, that is, without action by Congress, estab lished the essential immunity of interstate com mercial intercourse from the direct control of the States with respect to those subjects em braced within the grant which are of such a nature as to demand that, if regulated at all, their regulation should be prescribed by a single authority. It has repeatedly been de clared by this Court that as to those subjects which require a general system or uniformity of regulation the power of Congress is exclu sive. In other matters, admitting of diversity of treatment according to the special require ments of local conditions, the States may act within their respective jurisdictions until Con gress sees fit to act; and when Congress does act, the exercise of its authority overrides all conflicting State legislation.
The principle which determines this classi fication, underlies the doctrine that the States cannot under any guise impose direct burdens upon interstate commerce. For this is but to hold that the States are not permitted directly to regulate or restrain that which from its na ture should be under the control of the one authority and be free from restriction save as
28 CHAELES E. HUGHES
it is governed in the manner that the national legislature constitutionally ordains.
Thus, the States cannot tax interstate com merce, either by laying the tax upon the busi ness which constitutes such commerce or the privilege of engaging in it, or upon the receipts, as such, derived from it; or upon persons or property in transit in interstate commerce.
They have no power to prohibit interstate trade in legitimate articles of commerce; or to discriminate against the products of other States; or to exclude from the limits of the State corporations or others engaged in inter state commerce or to fetter by conditions their right to carry it on ; or to prescribe the rates to be charged for transportation from one State to another, or to subject the operations of car riers in the course of such transportation to requirements that are unreasonable or pass beyond the bounds of suitable local protection.
But within these limitations there necessarily remains to the States, until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdic tion although interstate commerce may be af fected. It extends to those matters of a local nature as to which it is impossible to derive from the constitutional grant an intention that they should go uncontrolled pending Federal intervention. Thus, there are certain subjects having the most obvious and direct relation to interstate commerce, which, nevertheless, with the acquiescence of Congress, have been con trolled by State legislation from the foundation of the Government because of the necessity
NATIONAL POWER 29
that they should not remain unregulated and that their regulation should be adapted to vary ing local exigencies ; hence, the absence of regu lation by Congress in such matters has not im ported that there should be no restriction but rather that the States should continue to sup ply the needed rules until Congress should de cide to supersede them. Further, it is compe tent for a State to govern its internal com merce, to provide local improvements, to create and regulate local facilities, to adopt protective measures of a reasonable character in the interest of the health, safety, morals and wel fare of its people, although interstate com merce may incidentally or indirectly be in volved. Our system of government is a prac tical adjustment by which the National author ity as conferred by the Constitution is main tained in its full scope without unnecessary loss of local efficiency. Where the subject is pecu liarly one of local concern, and from its nature belongs to the class with which the State appro priately deals in making reasonable provision for local needs, it cannot be regarded as left to the unrestrained will of individuals because Congress has not acted, although it may have such a relation to interstate commerce as to be within the reach of the Federal power. In such case, Congress must be the judge of the necessity of Federal action. Its paramount authority always enables it to intervene at its discretion for the complete and effective gov ernment of that which has been committed to its care, and, for this purpose and to this extent, in response to a conviction of National need,
30 CHAELES E. HUGHES
to displace local laws by substituting laws of its own. The successful working of our constitu tional system has thus been made possible.
The leading illustrations may be noted. Im mediately upon the adoption of the Constitu tion, Congress recognised the propriety of local action with respect to pilotage, in view of the local necessities of navigation. It was sixty years before provision for Federal license of pilots was made, and even then port pilots were not included. And while Congress has full power over the subject and to a certain extent has prescribed rules, it is still in a large meas ure subject to the regulation of the States.
A State is entitled to protect its coasts, to improve its harbours, bays and streams, and to construct dams and bridges across navigable rivers within its limits, unless there is conflict with some act of Congress. Plainly, in the case of dams and bridges, interference with the accustomed right of navigation may result. But this exercise of the important power to provide local improvements has not been re garded as constituting such a direct burden upon intercourse or interchange of traffic as to be repugnant to the Federal authority in its dormant state. . . .
State inspection laws and statutes designed to safeguard the inhabitants of a State from fraud and imposition are valid when reason able in their requirements and not in conflict with Federal rules, although they may affect interstate commerce in their relation to articles prepared for export or by including inciden tally those brought into the State and held for
NATIONAL POWER 31
sale in the original imported packages. And for the protection of its game and the preserva tion of a valuable food supply, the State may penalise the possession of game during the closed season whether obtained within the State or brought from abroad.
Interstate carriers, in the absence of Federal statute providing a different rule, are answer able according to the law of the State for non- feasance or misfeasance within its limits. Until the enactment by Congress of the act of April 22, 1908, the laws of the States deter mined the liability of interstate carriers by railroad for injuries received by their em ployes while engaged in interstate commerce, and this was because Congress, although em powered to regulate the subject, had not acted thereon. In some States the so-called fellow- servant rule obtained ; in others it had been ab rogated; and it remained for Congress, in this respect and in other matters specified in the statute, to establish a uniform rule. So, where Congress has not intervened, State statutes providing damages for wrongful death may be enforced not only against land carriers but also against the owners of vessels engaged in inter state commerce where the wrong occurs within the jurisdiction of the State. And, until Con gress legislated on the matter, liability for loss of property, on interstate as well as intrastate shipments, was subject to State regulation. Some States allowed an exemption by contract from all or a part of the common law liability; others allowed no exemption. These differ ences in the applicable laws created inequalities
32 CHAELES E. HUGHES
with respect to interstate transportation, but each State exercised the power inherent in its territorial jurisdiction, and the remedy for the resulting diversity lay with Congress, which was free to substitute its own regulations ; and this was done in the recent amendment of Sec. 20 of the Act to Regulate Commerce. It is within the competency of a State to create and enforce liens upon vessels for supplies fur nished under contracts not maritime in their nature, and it is no valid objection that the State law may obstruct the prosecution of a voyage of an interstate character. It may also create liens for damages to property on land occasioned by negligence of vessels. Cars em ployed in interstate commerce may be seized by attachment under State law, in order to compel the payment of debts. And the legislation of the State, safeguarding life and property and promoting comfort and convenience within its jurisdiction, may extend incidentally to the operations of the carrier in the conduct of inter state business, provided it does not subject that business to unreasonable demands and is not opposed to Federal legislation. It has also been held that the State has the power to for bid the consolidation of State railroad corpora tions with competing lines although both may be interstate carriers and the prohibition may have a far-reaching effect upon interstate commerce.
Again, it is manifest that when the legislation of the State is limited to internal commerce to such degree that it does not include even inci dentally the subjects of interstate commerce,
NATIONAL POWER 33
it is not rendered invalid because it may affect the latter commerce indirectly. In the intimacy of commercial relations, much that is done in the superintendence of local matters may have an indirect bearing upon interstate commerce. The development of local resources and the ex tension of local facilities may have a very im portant effect upon communities less favoured and to an appreciable degree alter the course of trade. The freedom of local trade may stimulate interstate commerce, while restrictive measures within the police power of the State enacted exclusively with respect to internal business, as distingnished from interstate traffic, may in their reflex or indirect influence diminish the latter and reduce the volume of articles transported into or out of the State. It was an objection of this sort that was urged and overruled in Kidd v. Pearson, 128 U. S. 1, to the law of Iowa prohibiting the manufacture and sale of liquor within the State, save for limited purposes. When, however, the State in dealing with its internal commerce undertakes to regulate instrumentalities which are also used in interstate commerce, its action is neces sarily subject to the exercise by Congress of its authority to control such instrumentalities so far as may be necessary for the purpose of en abling it to discharge its constitutional function. Within the State power, then, in the words of Chief Justice Marshall, is "that immense mass of legislation, which embraces everything within the territory of a State, not surrendered to a general government : all which can be most advantageously exercised by the States them-
34 CHAELES E. HUGHES
selves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, fer ries, &c., are component parts of this mass. No direct general power over these objects is granted to Congress: and, consequently, they remain subject to State legislation. If the legis lative power of the Union can reach them,dit must be for . National purposes ; it must be where the power is expressly given for a spe cial purpose, or is clearly incidental to some power which is expressly given."
And, wherever as to such matters, under these established principles. Congress may be entitled to act, by virtue of its power to secure the complete government of interstate com merce, the State power nevertheless continues until Congress does act and by its valid inter position limits the exercise of the local authority.
(2.) These principles apply to the authority of the State to prescribe reasonable maximum rates for intrastate transportation.
State regulation of railroad rates began with railroad transportation. The railroads were chartered by the States and from the outset, in many charters, maximum rates for freight or passengers, or both, were prescribed. Frequent ly — and this became the more general prac tice — the board of directors was permitted to fix charges in its discretion, an authority which in numerous instances was made subject to a limitation upon the amount of net earnings. In
NATIONAL POWER 35
several States maximum rates were aiso estab lished, or the power to alter rates was expressly reserved, by general laws. In 1853, the State of New York fixed the maximum fare for way passengers on the railroads forming the line of New York Central at two cents a mile and this rate, extending to Buffalo and Suspension Bridge, on the boundary of the State, has con tinued to the present day. As a rule the re strictions imposed by the early legislation were far from onerous, but they are significant in the assertion of the right of control. More potent than these provisions, in the actual effect upon railroad tariffs, was the State canal. It is a matter of common knowledge that the traffic on the trunk lines from the Atlantic seaboard to the West was developed in competition with the Erie Canal, built, maintained and regulated by the State of New York to promote its com merce.
The authority of the State to limit by legisla tion the charges of common carriers within its borders was not confined to the power to impose limitations in connection with grants of cor porate privileges. In view of the nature of their business, they were held subject to legis lative control as to the amount of their charges unless they were protected by their contract with the State. This was decided in Chicago, Burlington & Quincy R. E. Co. v. Iowa, 94 U. S. 155, and other cases. The question was pre sented by acts of the legislatures of Illinois, Iowa, Wisconsin and Minnesota, passed in the years 1871 and 1874 in response to a general movement for a reduction of rates. The section
36 CHARLES E. HUGHES
of the country in which the demand arose was to a large degree homogeneous and one in \vhich the flow of commerce was only slightly concerned with State lines. But resort was had to the States for relief. In the Mitnn Case, the Court had before it the statute of Illinois gov erning the grain warehouses in Chicago. Through these elevators, located with the river harbour on the one side and the railway tracks on the other, it was necessary according to the course of trade for the product of seven or eight States of the West to pass on its way to the States on the Atlantic coast. In addition to the denial of any legislative authority to limit charges it was urged that the act was repug nant to the exclusive power of Congress to regulate interstate commerce. The court an swered that the business was carried on ex clusively within the limits of the State of Illi nois, that its regulation was a thing of domestic concern and that "certainly, until Congress acts in reference to their interstate relations, the State may exercise all the powers of gov ernment over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction." In the decision of the railroad cases, above cited, the same opin ion was expressed. The language of the court, however, went further than to sustain the State law with respect to rates for purely intrastate carriage. Thus, the act of Wisconsin covered traffic which started within the State and was destined to points outside, and this was treated as being within the State power.
It became a frequent practice for the States
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to create commissions, as agencies of State supervision and regulation, and in many in stances the rate-making power was conferred upon these bodies. A summary of such legis lation is given in Interstate Commerce Com mission v. Chicago, N. 0. & T. P. Ry. Co., 167 U. S. 479, 495, 496. One of these State laws, that of Mississippi, passed in 1884, came under review in Stone v. Farmers Loan & Trust Co., 116 U. S. 307. The suit was brought to enjoin the Railroad Commission from enforcing the statute against the Mobile and Ohio Railroad Company. It had been incorporated in the States of Alabama, Mississippi, Tennessee and Kentucky, for the purpose of constructing a railroad from Mobile to some point near the mouth of the Ohio River where it would con nect with another railroad, thus forming a con tinuous line of interstate communication be tween the Gulf of Mexico and the Great Lakes. The Commission as yet had not acted. Sus taining the State power to fix rates upon traffic wholly internal, the Court directed the dis missal of the bill. The State, said the Court (p. 334), "may, beyond all question, by the set tled rule of decision in this Court, regulate freights and fares for business done exclusively within the State, and it would seem to be a mat ter of domestic concern to prevent the company from discriminating against persons and places in Mississippi. " In the same case, it was de clared that the power of regulation was not a power to confiscate ; and that under pretence of regulating fares and freights, the States could not " require a railroad corporation to carry
38 CHAELES E. HUGHES
persons or property without reward," or do that which in law amounted t i to a taking of pri vate property for public use without just com pensation, or without due process of law." (Id., p. 331.)
In Wabash, St. L. & P. Railway Co. v. Illi nois, supra, it was finally determined that the authority of the State did not extend to the regulation of charges for interstate transporta tion. There the State statute was aimed at dis crimination. It was said to have been violated by the railroad company in the case of ship ments from points within Illinois to the city of New York. The state court had construed the statute to be binding as to that part of the inter state Jiaul which was within the State although inoperative beyond the boundary. So applied, this court held the act to be invalid.
But no doubt was entertained of the State's authority to regulate rates for transportation that was wholly intrastate. And, in illustrating the extent of State power (id., p. 564), the court selected transportation across the State from Cairo to Chicago and from Chicago to Alton, all boundary points constituting important cen tres of commerce — the one on Lake Michigan, and the others at the confluence of the Missis sippi and Ohio rivers, and of the Mississippi and Missouri rivers, respectively. After re viewing decisions holding State laws to be in effective which imposed a direct burden upon interstate commerce, including the cases of the State Freight Tax, 15 Wall. 232; Hall v. DeCuir, 95 U. S. 485; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196 ; Pickard
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v. Pullman Southern Car Co., 117 TT. S. 34, the Court emphasised the distinction with respect to the operation of the statute upon domestic transactions saying: "Of the justice or propriety of the principle which lies at the foundation of the Illinois statute it is not the province of this court to speak. As restricted to a transportation which begins and ends within the limits of the State it may be very just and equitable, and it certainly is the province of the State legislature to determine that question." (Id., p. 577.)
The doctrine was thus fully established that the State could not prescribe interstate rates but could fix reasonable intrastate rates throughout its territory. The extension of rail road facilities has been accompanied at every step by the assertion of this authority on the part of the States and its invariable recognition by this court. It has never been doubted that the State could, if it saw fit, build its own high ways, canals and railroads. (Railroad Com pany v. Maryland, 21 Wall. 456, 470, 471.) It could build railroads traversing the entire State and thus join its border cities and com mercial centres by new highways of internal intercourse to be always available upon reason able terms. Such provision for local traffic might indeed alter relative advantages in com petition, and, by virtue of economic forces, those engaged in interstate trade and trans portation might find it necessary to make read justments extending from market to market through a wide sphere of influence; but such action of the State would not for that reason be
40 CHAELES E. HUGHES
regarded as creating a direct restraint upon interstate commerce and as thus transcending the State power. Similarly, the authority of the State to prescribe what shall be reasonable charges of common carriers for intrastate transportation, unless it be limited by the exer tion of the constitutional power of Congress, is State-wide. As a power appropriate to the territorial jurisdiction of the State, it is not confined to a part of the State, but extends throughout the State — to its cities adjacent to its boundaries as well as to those in the inte rior of the State. To say that this power exists, but that it may be exercised only in prescribing rates that are on an equal or higher basis than those that are fixed by the carrier for interstate transportation, is to maintain the power in name while denying -it in fact. It is to assert that the exercise of the legislative judgment in determining what shall be the carrier's charge for the intrastate service is itself subject to the carrier's will. But this State-wide author ity controls the carrier and is not controlled by it; and the idea that the power of the State to fix reasonable rates for its internal traffic is limited by the mere action of the carrier in laying an interstate rate to places across the State's border, is foreign to our jurisprudence. If this authority of the State be restricted, it must be by virtue of the paramount power of Congress over interstate commerce and its in struments; and, in view of the nature of the subject, a limitation may not be implied be cause of a dormant Federal power, that is, one which has not been exerted, but can only be
NATIONAL POWER 41
found in the actual exercise of Federal control in such measure as to exclude this action by the State which otherwise would clearly be within its province.
(3.) When Congress, in the year 1887, en acted the Act to Regulate Commerce (24 Stat. 379, c. 104), it was acquainted with the course of the development of railroad transpor tation and with the exercise by the States of the rate-making power. An elaborate report had been made to the Senate by a committee author ised to investigate the subject of railroad regu lation in which the nature and extent of State legislation, including the commission plan, were fully reviewed (Senate Eeport 46, submitted January 6, 1886, 49th Congress, 1st session). And it was the fact that beyond the bounds of State control there lay a vast field of unregu lated activity in the conduct of interstate trans portation which was found to be the chief cause of the demand for Federal action.
Congress carefully defined the scope of its regulation, and expressly provided that it was not to extend to purely intrastate traffic. In the first section of the Act to Regulate Com merce there was inserted the following proviso :
"Provided, however, That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State, and not shipped to or from a foreign country from or to any State or Territory as aforesaid.''
When in the year 1906 (act of June 29, 1906,
42 CHAELES E. HUGHES
c. 3591, 34 Stat. 584), Congress amended the act so as to confer upon the Federal commission power to prescribe maximum interstate rates, the proviso in section one was reenacted. Again, in 1910, when the act was extended to embrace telegraph, telephone and cable compa nies engaged in interstate business, the proviso was once more reenacted, with an additional clause so as to exclude intrastate messages from the operation of the statute. Act of June 18, 1910, c. 309, 36 Stat. 539 545. The proviso in its present form reads :
"Provided, however, That the provisions of this act shall not apply to the transportation of passengers or property, or to the receiving, de livering, storage, or handling of property wholly within one State and not shipped to or from a foreign country from or to any State or Terri tory as aforesaid, nor shall they apply to the transmission of messages by telephone, tele graph, or cable wholly within one State and not transmitted to or from a foreign country from or to any State or Territory as aforesaid/'
There was thus excluded from the provisions of the act that transportation which was "wholly within one State/' with the specified qualification where its subject was going to or coming from a foreign country.
It is urged, however, that the words of the proviso are susceptible of a construction which would permit the provisions of section three of the act, prohibiting carriers from giving an un due or unreasonable preference or advantage to any locality, to apply to unreasonable dis criminations between localities in different
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States, as well when arising from an intrastate rate as compared with an interstate rate as when due to interstate rates exclusively. If it be assumed that the statute should be so con strued, and it is not necessary now to decide the point, it would inevitably follow that the con trolling principle governing the enforcement of the act should be applied to such cases as might thereby be brought within its purview ; and the question whether the carrier, in such a case, was giving an undue or unreasonable prefer ence or advantage to one locality as against an other, or subjecting any locality to an undue or unreasonable prejudice or disadvantage, would be primarily for the investigation and determi nation of the Interstate Commerce Commis sion and not for the courts. The dominating purpose of the statute was to secure conformity to the prescribed standards through the ex amination and appreciation of the complex facts of transportation by the body created for that purpose ; and, as this court has repeatedly held, it would be destructive of the system of regula tion defined by the statute if the court without the preliminary action of the Commission were to undertake to pass upon the administrative questions which the statute has primarily con fided to it. In the present case, there has been no finding by the Interstate Commerce Commis sion of unjust discrimination violative of the act ; and no action of that body is before us for review.
The question we have now before us, essen tially, is whether after the passage of the Inter state Commerce Act, and its amendment, the
44 CHAELES E. HUGHES
State continued to possess the State-wide au thority which it formerly enjoyed to prescribe reasonable rates for its exclusively internal traffic. That, as it plainly appears, was the nature of the action taken by Minnesota, and the attack, however phrased, upon the rates here involved as an interference with interstate commerce, is in substance a denial of that au thority.
Having regard to the terms of the Federal statute, the familiar range of State action at the time it was enacted, the continued exercise of State authority in the same manner and to the same extent after its enactment, and the decisions of this court recognising and uphold ing this authority, we find no foundation for the proposition that the Act to Regulate Com merce contemplated interference therewith.
Congress did not undertake to say that the in- trastate rates of interstate carriers should be reasonable or to invest its administrative agency with authority to determine their rea sonableness. Neither by the original act nor by its amendment, did Congress seek to estab lish a unified control over interstate and intra- state rates ; it did not set up a standard for in- trastate rates, or prescribe, or authorise the Commission to prescribe, either maximum or minimum rates for intrastate traffic. It cannot be supposed that Congress sought to accomplish by indirection that which it expressly dis claimed, or attempted to override the accus tomed authority of the States without the provi sion of a substitute. On the contrary, the fix ing of reasonable rates for intrastate transpor-
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tation was left where it had been found ; that is, with the States and the agencies created by the States to deal with that subject.
How clear was the purpose not to occupy the field thus left to the exercise of State power is shown by the clause uniformly inserted in the numerous acts passed by Congress to authorise the construction of railways across the Indian Territory. This clause, while fixing a maxi mum passenger rate, made the laws of an ad joining State (in some cases Arkansas, in others Texas, and in others Kansas) applicable to the freight rates to be charged within the Territory ; and while the right to regulate rates on the authorised line of railroad was reserved to Congress until a State government should be established, it was expressly provided that, when established, the State should be entitled to fix rates for intrastate transportation — the right remaining with Congress to prescribe rates for such transportation as should be in terstate. Within a month after the Act to Regu late Commerce was enacted, two acts were passed by Congress for this purpose with re spect to railways extending across the Territory from the Texas to the Kansas boundary. The provision — in both cases in identical language — save that the one referred to the laws of Texas and the other to the laws of Kansas — was as follows (act of Feb. 24, 1887, c. 254, § 4, 24 Stat. 420; act of March 2, 1887, c. 319, § 4, id., 447) :
"SEC. 4. That said railroad company shall not charge the inhabitants of said Territory a
freater rate of freight than the rate authorised y the laws of the State of Texas for services
46 CHAELES E. HUGHES
or transportation of the same kind: Provided, That passenger rates on said railway shall not exceed three cents per mile. Congress hereby reserves the right to regulate the charges for freight and passengers on said railway, and messages on said telegraph and telephone lines, until a State government or governments shall exist in said Territory within the limits of which said railway, or a part thereof, shall be located; and then such State government or governments shall be authorised to fix and regu late the cost of transportation of persons and freights within their respective limits by said railway; but Congress expressly reserves the right to fix and regulate at all times the cost of such transportation by said railway or said company whenever such transportation shall extend from one State into another, or shall extend into more than one State: Provided, however, That the rate of such transportation of passengers, local or inter-State, shall not exceed the rate above expressed : And provided further, That said railway company shall carry the mail at such prices as Congress may by law provide ; and until such rate is fixed by law the Postmaster-General may fix the rate of com pensation. "
The same provision is found in similar stat utes passed in almost every year from 1884 to 1902 and relating to lines intended to serve as highways of interstate communication. When Oklahoma became a State, the laws of other States which were referred to in these various acts ceased to be operative within its limits, and by virtue of its Statehood and with the
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direct sanction of Congress, it became author ised to prescribe reasonable maximum rates for intrastate transportation throughout its extent. Oklahoma v. A., T. & 8. F. Ey. Co., 220 U. S. 277, 285; Oklahoma v. C., R. I. S Pac. Ry. Co., 220 U. S. 302, 306.
The decisions of this court since the passage of the Act to Regulate Commerce have uni formly recognised that it was competent for the State to fix such rates, applicable throughout its territory. If it be said that in the contests that have been waged over State laws during the past twenty-five years, the question of inter ference with interstate commerce by the estab lishment of State-wide rates for intrastate traf fic has seldom been raised, this fact itself at tests the common conception of the scope of State authority. And the decisions recognising and defining the State power wholly refute the contention that the making of such rates either constitutes a direct burden upon interstate com merce or is repugnant to the Federal statute. * * *
To suppose, however, from a review of these decisions, that the exercise of this acknowl edged power of the State may be permitted to create an irreconcilable conflict with the au thority of the Nation, or that through an equi poise of powers an effective control of inter state commerce is rendered impossible, is to overlook the dominant operation of the Consti tution which, creating a Nation, equipped it with an authority, supreme and plenary, to con trol National commerce and to prevent that control, exercised in the wisdom of Congress,
48 CHARLES E. HUGHES
from being obstructed or destroyed by any op posing action. But, as we said at the outset, our system of government is a practical adjust ment by which the National authority as con ferred by the Constitution is maintained in its full scope without unnecessary loss of local ef ficiency. It thus clearly appears that, under the established principles governing State action, the State of Minnesota did not transcend the limits of its authority in prescribing the rates here involved, assuming them to be reasonable intrastate rates. It exercised an authority ap propriate to its territorial jurisdiction and not opposed to any action thus far taken by Con gress.
The interblending of operations in the con duct of interstate and local business by inter state carriers is strongly pressed upon our at tention. It is urged that the same right-of- way, terminals, rails, bridges, and stations are provided for both classes of traffic; that the proportion of each sort of business varies from year to year and, indeed, from day to day; that no division of the plant, no apportionment of it between interstate and local traffic, can be made to-day, which will hold to-morrow; that terminals, facilities and connections in one State aid the carrier's entire business and are an element of value with respect to the whole prop erty and the business in other States ; that se curities are issued against the entire line of the carrier and cannot be divided by States; that tariffs should be made with a view to all the traffic of the road and should be fair as between through and short-haul business ; and. that, in
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substance, no regulation of rates can be just, which does not take into consideration the whole field of the carrier's operations, irrespective of State lines. The force of these contentions is emphasised in these cases, and in others of like nature, by the extreme difficulty and intricacy of the calculations which must be made in the effort to establish a segregation, of intrastate business for the purpose of determining the return to which the carrier is properly entitled there from.
But these 'considerations are for the prac tical judgment of Congress in determining the extent of the regulation necessary under exist ing conditions of transportation to conserve and promote the interests of interstate commerce. If the situation has become such, by reason of the interblending of the interstate and intra state operations of interstate carriers, that ade quate regulation of their interstate rates cannot be maintained without imposing requirements with respect to their intrastate rates which sub stantially affect the former, it is for Congress to determine, within the limits of its constitu tional authority over interstate commerce and its instruments the measure of the regulation it should supply. It is the function of this court to interpret and apply the law already enacted, but not under the guise of construction to pro vide a more comprehensive scheme of regula tion than Congress has decided upon. Nor, in the absence of Federal action, may we deny effect to the laws of the State enacted within the field which it is entitled to occupy until its authority is limited through the exertion by
50 CHARLES E. HUGHES
Congress of its paramount constitutional power.
In the so-called Shreveport case, more ac curately known as Houston and Texas Railway Company against the United States* Justice Hughes declared, in part :
Tt is unnecessary to repeat what has fre quently been said by this court with respect to the complete and paramount character of the power confided to Congress to regulate com merce among the several States. It is of the es sence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local governments. The purpose was to make impos sible the recurrence of the evils which had over whelmed the Confederation and to provide the necessary basis of national unity by insuring "uniformity of regulation against conflicting and discriminating State legislation." By vir tue of the comprehensive terms of the grant, the authority of Congress is at all times ade quate to meet the varying exigencies that arise and to protect the national interest by securing the freedom of interstate commercial inter course from local control. . . .
Congress is empowered to regulate, — that is, to provide the law for the government of inter state commerce; to enact "all appropriate leg islation " for its "protection and advance ment ;" to adopt measures "to promote its
1 234 U. S. Keports, page 342.
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growth and insure its safety;" "to foster, pro tect, control and restrain." Its authority, ex tending to these interstate carriers as instru ments of interstate commerce, necessarily em braces the right to control their operations in all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance. As it is competent for Congress to legislate to these ends, unquestionably it may seek their attainment by requiring that the agencies of interstate commerce shall not be used in such manner as to cripple, retard or destroy it. The fact that carriers are instru ments of intrastate commerce, as well as of interstate commerce, does not derogate from the complete and paramount authority of Con gress over the latter or preclude the Federal power from being exerted to prevent the intra state operations of such carriers from being made a means of injury to that which has been confided to Federal care. "Wherever the inter state and intrastate transactions of carriers are so related that the government of one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of its constitu tional authority and the State, and not the Na tion, would be supreme within the national field.
52 CHAELES E. HUGHES
While these decisions sustaining the Federal power relate to measures adopted in the inter est of the safety of persons and property, they illustrate the principle that Congress, in the exercise of its paramount power, may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in their intrastate operations to the injury of interstate commerce. This is not to say that Congress possesses the authority to regulate the internal commerce of a State, as such, but that it does possess the power to foster and protect interstate commerce, and to take all measures necessary or appropriate to that end, although intrastate transactions of interstate carriers may thereby be controlled.
This principle is applicable here. We find no reason to doubt that Congress is entitled to keep the highways of interstate communication open to interstate traffic upon fair and equal terms. That an unjust discrimination in the rates of a common carrier, by which one person or locality is unduly favoured as against another under substantially similar conditions of traffic, con stitutes an evil is undeniable; and where this evil consists in the action of an interstate car rier in unreasonably discriminating against in terstate traffic over its line, the authority of Congress to prevent it is equally clear. It is immaterial, so far as the protecting power of Congress is concerned, that the discrimination arises from intrastate rates as compared with interstate rates. The use of the instrument of interstate commerce in a discriminatory man ner so as to inflict injury upon that commerce,
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or some part thereof, furnishes abundant ground for Federal intervention. Nor can the attempted exercise of State authority alter the matter, where Congress has acted, for a State may not authorise the carrier to do that which Congress is entitled to forbid and has forbid den. . . .
Congress thus defined the scope of its regula tion and provided that it was not to extend to purely intrastate traffic. It did not undertake to authorise the Commission to prescribe intra state rates and thus to establish a unified con trol by the exercise of the rate-making power over both descriptions of traffic. Undoubtedly — in the absence of a finding by the Commission of unjust discrimination — intrastate rates were left to be fixed by the carrier -and subject to the authority of the States or agencies created by the States. This was the question recently decided by this Court in the Minnesota Rate Cases.
This assertion of the primacy of National over local interests and the supremacy of Na tional over State power in respect to mattQrs inevitably National in scope, did not, however, lead Justice Hughes to deny the possession of broad and plenary regulative powers on the part of the States, even as to instrumentalities used in interstate commerce. Said he, in Atlantic Coast Line against Georgia,1 where the carriers denied the powers of the State to regulate interstate trains as to matters concerning which
*234: U. S. Eeports, page 280.
54 CHAELES E. HUGHES
Congress had not prescribed a National stand ard:
The use of locomotive headlights is directly related to safety in operation. It cannot be denied that the protective power of (the State) government, subject to which the carrier con ducts its business and manages its property, extends as well to the regulation of this part of the carrier's equipment as to apparatus for heating cars or to automatic couplers. The legislature may require an adequate headlight, and whether the carrier's practice is properly conducive to safety, or a new method affording greater protection should be substituted, is a matter for legislative judgment. But it is in sisted that the legislature has gone beyond the limits of its authority in making the specific requirements contained in the act as to the character and power of the light and the di mensions of the reflector. This argument ig nores the established principle that if its action is not arbitrary — is reasonably related to a proper purpose — the legislature may select the means which it deems to be appropriate to the end to be achieved. It is not bound to content itself with general directions when it considers that more detailed measures are necessary to attain a legitimate object. Particularisation has had many familiar illustrations in cases where there has been a conviction of the need of it, as, for example, in building regulations and in provisions for safeguarding persons in the use of dangerous machinery. So far as gov ernmental power is concerned, we know of no
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ground for an exception in the case of a loco motive headlight.
It cannot be said that the legislature acted arbitrarily in prescribing electric light, in pref erence to others, or that, having made this se lection, it was not entitled to impose minimum requirements to be observed in the use of the light. Witnesses for the plaintiff in error, in cluding its general superintendent of motive power and other employes holding important positions and conversant with the exigencies of operation, presented their objections to the use of the electric headlight. Locomotive engineers who for many years had driven locomotives with such a light testified for the State, ex pressing a decided opinion in favour of the use of electric headlights in the interest of safe operation and submitting their views in answer to the objections that had been urged. Assum ing that there is room for difference of opinion, this fact does not preclude the exercise of the legislative discretion. So far as the question was one simply of expediency — as to the best method to provide the desired security — it was within the competency of the legislature to de cide it. ...
If there is a conflict in such local regulations, by which interstate commerce may be incon venienced — if there appears to be need of stand ardisation of safety appliances and of provid ing rules of operation which will govern the entire interstate road irrespective of State boundaries — there is a simple remedy; and it cannot be assumed that it will not be readily applied if there be real occasion for it. That
56 CHARLES E. HUGHES
remedy does not rest in a denial to the State, in the absence of conflicting Federal action, of its power to protect life and property within its borders, but it does lie in the exercise of the paramount authority of Congress in its control of interstate commerce to establish such regula tions as in its judgment may be deemed ap propriate and sufficient. Congress, when it pleases, may give the rule and make the stand ard to be observed on the interstate highway.
In the address which he gave before the New York State Bar Association last January, Jus tice Hughes commented upon the legal bearings of the whole subject with perhaps greater free dom than within the limitations of a judicial opinion :
With Congress using widely its authority over interstate commercial intercourse and the States creating new obligations and remedies, the difficulty and importance of the work of the courts as the interpreters of constitutions and laws has enormously increased. There has never been a time when that work, in view of the intimate relation of legislation to commerce and industry, has been of more vital concern to the country than it is to-day. It is plain that our dual system of government is being sub jected to a new and severe strain. Congress is constantly defining the scope of its legislation by reference to the commerce clause, while on the other hand the States, with respect to al most every important activity, press their ao-
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tion to the constitutional limit of State power. Thus the Interstate Commerce Act fastens upon interstate transportation, while statutes with similar purpose and thoroughness deal with the transportation that is intrastate, conducted by the same carriers. The Federal Employers' Liability Act applies to persons suffering in jury while employed by railroads in interstate commerce, and other acts define what it shall be unlawful for any person to do " in the course of such commerce, " either "directly or indi rectly. " Now, as has been aptly said, inter state commerce is a "practical conception"; it is not determined by mere forms of contracts, or by bills of lading, or by mere technicalities of any sort, that is, by anything short of the sub stance of the transaction. But, while this is true, interstate commerce is a department of practical affairs which as a rule is segregated only in legal theory. It has no separate exist ence in economics and is not separately main tained by transportation companies or by those engaged in trade. When is an employe of a railroad company engaged in interstate com merce ? There may be no distinction in the mere physical conditions of his work or in his wages. Train crews handle interstate and intrastate traffic indiscriminately ; and the practical serv ice of the carrier is determined by the nature of the haul, not by the presence or absence of a State boundary. If, while in his usual work as a train hand, there is an interstate passenger on the train, or goods in a freight car are in the actual course of an interstate journey, his rights and the correlative liability of his employer in
58 CHAELES E. HUGHES
case of injury through the latter 's neglect are governed by Federal law ; but if the passengers or goods are being moved solely in intrastate transportation, the State law alone determines right and remedy. Again, the same right of way, terminals, tunnels and bridges are used for both classes of traffic. The railroad has economically but one value ; but this value must in some way be apportioned to determine whether laws of different jurisdictions permit a fair return upon that value, which for legal purposes must be assigned to each. Certain rate structures which from the standpoint of economic principle and practical judgment are single, are split into legal divisions for the purpose not of academic discussion but of vital control. Our recent reports abund antly show that questions of utmost nicety are constantly being presented in the application of new statutes, and evidence the extreme difficulty of the work of carrying out the will of Congress over the activities within its control while at the same time avoiding encroachment upon the State field. This difficulty is sure to be very keenly appreciated in whatever fields of activity the regulating power of government takes hold. It is the problem of many govern ments, within one Nation, dealing with portions of an activity which has economic unity. The import of this should be clear to every disinter ested observer; a practical people with bound less opportunities and with aspirations uncon- fined will not be disposed to permit legitimate progress to be needlessly restrained or gov erned to defeat itself by its own complexity.
NATIONAL POWER 59
His aversion to a Nationalism which, for its own sake, makes war on the autonomy of State and local sovereignties and seeks to transfer purely local concerns to a centralised and "bu reaucratic" supervision from the Federal capi tal, was trenchantly expressed in the same address :
But in the face of the difficulties already upon us, and destined to increase in number and grav ity, we remain convinced of the necessity of autonomous local governments. An over-cen tralised government would break down of its own weight. It is almost impossible even now for Congress in well-nigh continuous session to keep up with its duties, and we can readily im agine what the future may have in store in legis lative concerns. If there were centred in Wash ington a single source of authority from which proceeded all the governmental forces of the country — created and subject to change at its will — upon whose permission all legislative and administrative action depended throughput the length and breadth of the land, I think we should swiftly demand and set up a different system. If we did not have States we should speedily have to create them. We now have them, with the advantages of historic background, and in meeting the serious ques tions of local administration we at least have the advantage of ineradicable sentiment and cher ished traditions. And we may well congratulate ourselves that the circumstances of the forma tion of a more perfect Union has given us
60 CHARLES E. HUGHES
neither a confederation of States, nor a single centralised government, but a Nation — and yet a Union of States each autonomous in its local concerns. To preserve the essential elements of this system — without permitting necessary local autonomy to be destroyed by the unwar ranted assertion of Federal power, and without allowing State action to throw out of gear the requisite machinery for unity of control in National concerns— demands the most intelli gent appreciation of all the facts of our inter related affairs and far more careful efforts in co-operation than we have hitherto put forth.
Within its sphere as defined by the Consti tution, the Nation is supreme. The question is simply of the extent of the Federal power as granted; where there is authorised exercise of that power there is no reserved power to nullify it — a principle obviously essential to the main tenance of national integrity, yet continually calling for new applications. Thus, regulations required in the exercise of the judgment com mitted to Congress for the protection of inter state commerce cannot be made nugatory by the mere commingling of interstate and intra- state transactions. To illustrate, when the va lidity of the Hours of Service Act was under consideration, it was emphasised that the inter state and intrastate transactions of the carriers were so interwoven that it was utterly imprac ticable for them to divide their employes so that those engaged in interstate commerce should be confined to that commerce exclusively. But this fact, it was held, did not preclude the exercise of Federal power. As Congress for
NATIONAL POWER 61
the purpose of promoting safety through the reduction of the risks incident to excessive strain could limit the hours of labour of those engaged in interstate transportation, it neces sarily followed that this exertion of its author ity could not be frustrated by prolonging the period of service through other requirements of the carriers or by intermingling the duties which related to interstate and intrastate operations. So also, Congress has taken account of the practical exigencies of traffic, and of the interdependence of train move ments, and has insisted that cars moving on railroads that are highways of interstate com merce shall be suitably equipped to the end that interstate traffic shall not be exposed to unneces sary danger. Again, Congress has asserted its authority to compel interstate carriers to give to interstate traffic reasonable rates without un just discrimination; and the question whether interstate trade was left to be destroyed by hostile discrimination under the authority of local governments was decisively answered when the Constitution superseded the Articles of Confederation. On the other hand, while there is this supremacy of national power with in the national sphere, it was never intended that throughout the extent of authorised Fed eral action there could be, in the absence of the actual exercise of Federal power, no employ ment of State authority. There are un doubtedly many matters of such a na ture that but one authority can be exercised over them, and the Federal power must be exer cised or none at all. But along with these are
62 CHAELES E. HUGHES
a host of local necessities which from the be ginning were viewed as properly engaging the attention of the States in the protection of the interests of their people, albeit interstate com merce was incidentally affected, until Congress should act and by the exertion of its consti tutional authority supersede State laws by its own requirements. Varying local exigencies have thus been met. Consequently, in a large measure the Federal power has been dormant — and its exercise has awaited the revelation of national need and the pressure of a gradually forming national sentiment.
In the same address, Justice Hughes hinted at constructive lines along which he thought the resources of the executive and legislative departments of government might most help fully be employed — lines which he characterised as "the resources of accommodation" under our dual system :
But important as is the judicial function in maintaining the integrity of the constitutional system, it should not be overburdened, nor should work be expected of it which should otherwise be performed. No opportunity should be neglected to secure that wise co-operation which in our network of activities can go far to avoid unnecessary friction. While I cannot enter the domain of legislative policy, may I suggest that the resources of accommodation have not been exhausted; indeed, they have scarcely been touched. Very often the differ-
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ences that exist between State and Federal laws governing different phases of the same gen eral activity are due more to accident or lack of forethought than to difference in deliberate pur pose. We have had in our States too little re gard for the remoter and indirect consequences of legislation. There has been, perhaps, too much thought of questions of abstract power rather than of its sagacious use by those who after all must have a common prosperity or none at all. Some progress, very gratifying, has been made toward unifying our commer cial law by the enactment of uniform acts in many States, relating to negotiable instruments, warehouse receipts, bills of lading and sales. But it should be possible to do far more than has been done in the promotion of agreement rather than diversity, inasmuch as our people are to a very great extent inspired by the same ideals. When Congress has legislated on a sub ject within its province variations in statutes as to corresponding activities in the local field may well be examined to see whether such varia tions are worth while, or whether it would not be possible to secure harmony without sacrifice of any real local interest. The various admin istrative commissions easily provide opportuni ties for deliberation and conference which should be of inestimable importance in avoiding unfortunate differences, particularly when the legislative policies underlying administrative action appear to be identical. Our administra tive law is comparatively of recent develop ment and we have hardly begun to consider the practical needs and advantages which go with
64 CHAELES E. HUGHES
the creation of such agencies in Nation and State. In most cases differences yield to a com plete understanding of facts, and equipment for competent investigations should diminish the dangers of conflict. It would- seem to be clear that bodies of intelligent men dealing as ex perts, for example, with the interstate and in- trastate phases of traffic situations, should be in practical accord, or that at least such differ ences as may appear to exist should be put to the test of mutual statement, analysis and con sultation under plans more definitely designed to prevent unnecessary divergencies. I do not mean to underestimate such voluntary efforts as have been made in this direction ; nor shall I presume to suggest the details of possible im provements in administrative schemes with this end in view. But I should think that many of our difficulties might be solved by perfecting the machinery of administration with the direct purpose of promoting harmony* of action* in dealing with those activities which are con ducted in the world of affairs as parts of the same enterprises. It should not be deemed im practicable to secure the protective purposes of State and Nation without injury or needless embarrassment to the honest undertakings upon which both depend.
Another epoch-marking development in the scope of National action for public health, pub lic morals, public safety, public welfare, and the like, has come about through a judicial clearing of the way for an increased exercise
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of the Federal power over interstate commerce along lines akin to "police-power" regulations. That is to say, the Supreme Court has, during the past five years, very clearly pointed the way for the nation-wide accomplishment of legisla tive purposes having to do with the public wel fare, through the application of wholesome regulatory restraints to the use of the channels and instrumentalities of interstate commerce. If Congress wished to give nation-wide effec tiveness to a measure vitally conserving the public health, morals, or welfare, the way was opened to the doing of this through denying to those engaged in activities hostile to the legis lative purpose the right to use the channels of interstate transportation.
This extension of National regulatory power is beyond doubt one of the most far-reaching in the evolution of American constitutional law, and the official reports show Justice Hughes' vital relation to the progressive development of this wholesome doctrine. "Why should not worthless stuff, purveyed under false labels as cures, be made contraband of commerce, — as well as lottery tickets?" he impressively in quired, in his dissenting opinion in the Johnson case.1 The Supreme Court had upheld the power of Congress, in the interests of public morals, to exclude lottery tickets from the mails and from interstate commerce.2 "If an
1 U. 8. vs. Johnson (221 U. S. Reports, page 488).
2 Champion vs. Ames (188 U. S. Reports, page 331).
66 CHAELES E. HUGHES
article is shipped in interstate commerce, bear ing on its label a representation that it is a cure for a given disease, when on a showing of the facts there would be a unanimous agreement that it was absolutely worthless and an out and out cheat," Justice Hughes felt that Congress had denned this to be a "mis-branding" of the article, and that Congress had the power to con serve public health, safety, morals and welfare, by preventing the interstate shipment of so sin ister a menace to public health and security in medical treatment.
In the celebrated Hipolite Egg case l in 1911, the Supreme Court held the object of the Food and Drugs Act to be "to keep adulterated ar ticles out of the channels of interstate com merce, or, if they enter such commerce, to con demn them while being transported or when they have reached their destination, provided they remain unloaded, unsold, or in original unbroken packages." It declared that while "in the original, unbroken packages, they carry their own identification of contraband of law." Concerning this power of Congress to declare to be "contraband of law" and "out laws of commerce" any articles whose inter state transportation would accomplish results repugnant to the public health, morals or wel fare," the Supreme Court, Justice Hughes con curring, declared :
1 220 U. S. Beports, page 45.
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The statute rests, of course, upon the power of Congress to regulate interstate commerce, and, defining that power, we have said that no trade can be carried on between the States to which it does not extend, and have further said that it is complete in itself, subject to no lim itations except those found in the Constitution. We are dealing, it must be remembered, with illicit articles — articles which the law seeks to keep out of commerce, because they are debased by adulteration, and which law punishes them (if we may so express ourselves) and the ship per of them. . . . The question here is whether articles which are outlaws of commerce may be seized wherever found. . . . Their confiscation or destruction is the especial concern of the law.
In Hoke, against the United States * — one of the so-called " white slave " cases — the power of Congress to regulate interstate commerce in the interests of the public morality and welfare was further commented upon by a unanimous Court, Justice Hughes concurring:
Congress is given power "to regulate com merce with the foreign nations and among the several States." The power is direct; there is no word of limitation in it; and its broad and universal scope has been so often declared as to make repetition unnecessary. . . . Com merce among the States, we have' said, consists of intercourse and traffic between their citizens,
1 227 U. S. Eeports, page 308.
68 CHARLES E. HUGHES
and includes the transportation of persons and property. . . . There is unquestionably a con trol in the States over the morals of their cit izens . . . but there is a domain which the States cannot reach and over which Congress alone has power. ... Its exertion does not en croach upon the jurisdiction of the States. . . .
Our dual form of government has its perplex ities, State and Nation having different spheres of jurisdiction, as we have said, but it must be kept in mind that we are one people; and the powers reserved to the States and those con ferred on the Nation are adapted to be exer cised, either independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions, and surely if the facility of interstate transporta tion can be taken away from the demoralisation of lotteries, the debasement of obscene litera ture, the contagion of diseased cattle or per sons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitu tion and debauchery of women, and, more in sistently, of girls.
This is the aim of the law expressed in broad generalisation ; and motives are made of deter mining consequence. Motives executed by ac tions may make it the concern of Government to exert its powers. Eight purpose and fair trading need no restrictive regulation, but let them be transgressed and penalties and prohi bitions must be applied. We may illustrate again by the Pure Food and Drugs Act. Let an article be debased by adulteration, let it be
NATIONAL POWER 69
misrepresented by false branding, and Con gress may exercise its prohibitive power. It may be that Congress could not prohibit the manufacture of the article in a State. It may be that Congress could not prohibit in all of its conditions its sale within a State. But Congress may prohibit its transportation between the States, and by that means defeat the motives and evils of its manufacture.
The question which Justice Hughes asked in his dissenting opinion in the Johnson case was soon answered by Congress. The extension for which he had contended was made effective. Drugs or purported medicines misbranded as to their curative properties were made "con traband of law," "outlaws of commerce," by the Sherley Amendment, and Justice Hughes, within the present year, wrote for a unanimous Court l in applying to a purported ' l tubercu losis cure" the Congressional enactment and what he called "the simple principle that Con gress is not to be denied the exercise of its con stitutional authority over interstate commerce, and its power to adopt not only means neces sary but convenient to its exercise, because these means may have the quality of police reg ulations ' ' — a statement which may be regarded as representing the limit thus far of judicial indication of the scope of Congressional au thority under this doctrine.
1 Seven Cases of Eckman's Alterative vs. U. S. (239 U. S, Keports, page 510),
70 CHARLES E. HUGHES
The belief is general, among students of the law, that the United States stands only at the beginning of the exercise of increased Federal power for public ends, through legislation en acted along the lines indicated by Justice Hughes and his colleagues. Already the devel opment of the doctrine within the past two or three years has had a notable effect upon the trend of legislation. An instance is the way in which a constitutional basis has been revealed for a National child-labour law, at a time when the "Cry of the Children " has as much mean ing for us as for our grandfathers, whose hearts it was written to stir, more than seventy years ago. As it was Senator Beveridge who was the pioneer in arousing a nation-wide inter est in the formulation of such a law, so it has been the statesmen of the Supreme Court who have pointed the way for it. The Beveridge proposal aroused antagonism — or at least gave basis for interested antagonism — because it- was based on a constitutional concept then vig orously denied by many lawyers. This meas ure sought to prevent the use of the labour of children in manufacturing processes by impos ing prohibitions and penalties on railroad com panies, who employed no children and engaged in no manufacture. The carriers were to be punished if they carried the products of child labour, and the employers of little children were to be punished only if they made false state ments as to such employment. Such a measure
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seemed necessarily based on the proposition that Congress had an unlimited power — arbi trary, in its discretion — over the instrumental ities of interstate commerce. Otherwise, Con gress could not attach the penalties to acts of carriers themselves doing no wrong. Senator Carmack is said to have wrung from Senatoj" Beveridge even an admission that the latter 's bill was based on a theory which carried the extreme implication that Congress had such power over interstate railroads that it could prohibit them from carrying the milk of such cows as were milked by red-headed girls !
Justice Hughes and his colleagues have, how ever, pointed and cleared the way construc tively for a National regulation of child labour on a less debatable basis. The Keating-Owen bill, in the form in which it was pending before the Senate at the time of the writing of this volume, follows more closely the doctrine of the vdecisions above quoted. It denies to a factory or mine employing children below specified standards of child protection in the public in terest, the right to use the instrumentalities and channels of interstate commerce. The em ployment of children in manufacture or mining is looked upon as evincing an intent, and as disclosing acts, inimical to public health, mor als, safety and welfare; and the employers of children under such circumstances are to be barred from use of the facilities of interstate transportation. A child-employing establish-
72 CHAELES E. HUGHES
ment is thus placed in the same category with a lottery or with an area in which cattle or per sons are generally diseased, and the goods pro duced in the child-employing establishment are placed in the category of lottery tickets, dis eased cattle, obscene printed matter, adulter- ^ted drags, and the like. Therefore, while there may be no inherent differences between the goods manufactured in a place where chil dren work and those made in a place where only adults work — and so no basis, short of arbi trary power, for the imposing of penalties on carriers transporting the former — there is much difference between the two establishments — one conserving, and the other impinging upon and tearing down, the vigour, health, morality and welfare of the boys and girls who soon will be the men and women of the Nation. The es tablishment at war with public welfare cannot carry on that war over State boundaries. The Nation localizes, confines to a single State, the power of such an establishment to do more gen eral injury, by denying it the right to move its products into other States, until it eliminates from its mode of doing business the crime against the robustness, morality, education, and joyous childhood of American boys and girls.
Justice Hughes prepared the opinions of the Court upon other and diversified aspects of the necessary adjustments between National and State sovereignty, but it is impracticable in this
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volume to do more than refer by footnote to the cases * in which were expressed his amplified views of an adequate Nationalism. In subse quent chapters, notably those dealing with pure food laws and the regulation of labour condi tions, will be found excerpts from his opinions as to the scope of State and National power in relation to those topics.
1Port Richmond Ferry vs. Hudson County (234 U. S. Re ports, page 317) ; Sault Ste. Marie vs. International Transit Co. (234 U. S. Eeports, page 333) ; Anderson vs. Pacific Coast Ss. Co. (225 U. S. Eeports, page 187) ; Wilmington Transp. Co. vs. California E. E. Commission (236 U. S. Eeports, page 151) ; Adams Express Co. vs. New York (232 U. S. Eeports, page 14) ; Philadelphia Co. vs. Stimson (223 U. S. Eeports, page 605) ; Chicago, etc., Ey. Co. vs. Iowa (233 U. S. Eeports, page 334).
CHAPTEE HI
THE DOCTRINE OF REASONABLE RELATIONSHIP TO A PERMISSIBLE PURPOSE
IP a student of modern legislation were to make inquiry for the purpose of forming an estimate as to the social outlook and social statesmanship of a member of an appellate court, his inquiry would probably be along four or five notable lines. He would inquire as to his acceptance and application of the doctrine of reasonable relationship to a permissible pub lic purpose ; he would inquire as to his rejection of the doctrine of "freedom of contract " and his willingness to follow through the full conse quences of that rejection; he would ask as to his standards of determining what "process" and procedure is "due" and what is arbitrary; he would ask as to his criteria of reviewing questions of the remunerativeness or confisca- tory consequences of rate and service orders of governmental authorities; and he would search as to his acceptance or rejection of the modern concept of legal and social science in the regulative field, which calls for ascertain ment of facts, action in the light of disclosed conditions, and emancipation alike from a mere
74
EXTENSION OF "POLICE POWER" 75
traditionalism of form and an unquestioned adherence to predetermined conceptions of law and policy.
A brief commentary upon the judicial course and utterances of Justice Hughes and his col leagues in the Supreme Court may be of value at this juncture:
As to the doctrine of reasonable relationship to the accomplishment of a permissible public purpose: From a social viewpoint, perhaps the most forward-looking event in the legal his tory of the past decade or so has been the de velopment and extending application of this concept as to the metes and bounds of regula tive action for social betterment. From this viewpoint, two questions are presented as to the validity of a regulative measure :
Is there an evil — conditions with which gov ernment is called upon or entitled to deal — and does the measure deal with a purpose which government is entitled to effect?
If so, does the legislation in question bear a reasonable relation to that purpose?
For many years, the question of the per missible scope of the exercise of governmental power in behalf of social welfare had caused a great deal of disagreement between the Courts of different jurisdictions, between students of
76 CHAELES E. HUGHES
the history and philosophy of the law, and be tween champions of opposing schools of thought and action in the realm of public affairs. There was, for example, sharp divergence of standards between the Federal and many State courts, as to the limits of governmental discretion under the concept of "due process " which the Four teenth Amendment requires the National judi cial power to apply and enforce, even as against the action of a sovereign State. One of the difficulties, it is true, was that the National view was perhaps naturally more broad and progressive than the view of many of the older States, but another difficulty was that there was no very definite or understandable formula for determining the boundaries of the regula tive power, commonly referred to as the "po lice power " of government.
Some of the State courts ruled that the "due process" clause permitted legislation to protect the lives, health, morals, and physical safety of the general public or of employes, for example, but little, if anything, beyond that. The New York Court of Appeals said that1
Every man's right to life, liberty and prop erty is to be disposed of in accordance with those ancient and fundamental principles which were in existence when our Constitutions were adopted.
1Ives vs. South Buffalo By. Co. (201 N. Y. Keports, page 271).
EXTENSION OF "POLICE POWER" 77
On the other hand, the Supreme Court of the United States was giving to the " police power " a very broad and wholesome application, with out laying down any very comprehensible stand ard for determining what was and was not within its limitations. ' ' The power is, and must be from its very nature, incapable of any very exact definition or limitation," said the Court.1 "Upon it depends the security of the social or der, the life and health of the citizen, the com fort of existence in a thickly populated com munity, the enjoyment of private and social life, and the beneficial use of property." A little later it was observed that the power might be said to "extend to all the great public needs, ' ' 2 and still later it was said,3 Justice Hughes concurring, that the "police power"
. . . may be put forth in aid of what is sanc tioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.
The inclusion of "public welfare" as one of the permissible objects of the "police power" — as distinguished from merely "life, safety, health and morals" — has had a most salutary effect. "Social purpose" has come within the
1 Slaughter House Cases (16 Wallace's [U. S.] Eeports, page 36).
*Camfield vs. U. S. (167 U. S. Eeports, page 518).
3 Noble State Bank vs. Haskell (219 U. S. Eeports, page 104).
78 CHAELES E. HUGHES
purview of "public purpose," and there has been a continued and broadening judicial ap preciation of the quickened regulative activities of the State.
The development of the doctrine of " reason able relationship to a public purpose " has given perhaps a new definiteness and stability to the concept of "due process" and the "police power." It has afforded a sound and more workable standard and test. Is there an evil? Are there conditions affected with a public in terest or giving rise to a public concern? Is there an aspect of public welfare presented by social phenomena to which attention has been directed by fair inquiry? If so, does the rem edy, the particular proposal which the legisla ture has adopted, the legislation which it has fashioned, seem designed to deal with the evil, the conditions? The Court is of course not called upon to answer this question with guar anty of the suitableness and effectiveness of the expedient ; the question is not whether the legislature has chosen the best possible method or put its enactment in the best possible form ; the question is whether the measure is reason ably calculated to deal with the conditions and bears a reasonable relation to the accomplish ment of the public purpose. If there is room for a difference of honest opinion, the legisla ture is entitled to decide. In other words, in all fairness, can the Court see that the legisla ture's proposal bears an actual and reasonable
EXTENSION OF "POLICE POWER » 79
relation to accomplishing the result? Of course, if it does not, and seems to be only a subter fuge and the public purpose only a pretext, then the measure falls under the Constitutional pro hibition. If the measure discloses aught dis criminatory and essentially unfair to classes of the community, manifesting a disposition to in jure and penalize rather than aid and upbuild, then the measure falls. If the measure is arbi trary in its operation, it likewise falls, for rea sons which will be commented on later in this chapter; but the fundamental challenge of the Constitution to the legislature is: Does and can the Court, in all fairness, see that your new law bears a reasonable relation to, and is fairly calculated to be a step forward in bringing about, a result which the legislature is entitled to try to accomplish? If so, the requirements of "due process " have been met, and the meas ure is within the "police power."
To this doctrine, which has lately been the rallying-point of the champions of economic and industrial legislation before judicial tri bunals, Justice Hughes early gave definite and apparently cordial acceptance. It may fairly be said that he has 'taken a discernible and im portant part in its wholesome development and fair application. In the first opinion which he wrote on a "social welfare" question, he said:1
1 Chicago, B. & Q. By. Co. vs. McGuire (219 U. S. Beports, page 549).
80 CHARLES E. HUGHES
We pass without comment the criticisms which are made of certain details of the relief plan, for neither the suggested excellence nor the alleged defects of a particular scheme may be permitted to determine the validity of the statute, which is general in its application. The question with which we are concerned is not whether the regulations set forth in the answer are just or unjust, but whether the amended statute transcends the limits of power as de fined by the Federal Constitution. . . . The legislature, provided it acts within its consti tutional authority, is the arbiter of the public policy of the State. While the Court, unaided by legislative declaration and applying the principles of the common law, may uphold or condemn contracts in the light of what is con ceived to be public policy, its determination as a rule for future action must yield to the legis lative will when expressed in accordance with the organic law. . . . Freedom of contract is a qualified and not an absolute right. There is no absolute freedom to do as one wills or to contract as one chooses. The guaranty of lib erty does not withdraw from legislative super vision that wide department of activity which consists of the making of contracts, or deny to government the power to provide restrictive safeguards. Liberty implies the absence of ar bitrary restraint, not immunity from reason able regulations and prohibitions imposed in the interests of the community. . . .
The right to make contracts is subject to the exercise of the powers granted to Congress for the suitable conduct of matters of national
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concern, as for example the regulation of commerce with foreign nations and among the several States. . . .
It is subject also, in the field of State action, to the essential authority of government to maintain peace and security and to enact laws for the promotion of the health, safety, morals and welfare of those subject to its jurisdiction. This limitation has had abundant illustration in a variety of circumstances. Thus, in addition to upholding the power of the State to require reasonable maximum charges for public serv ice (Munn v. Illinois, 94 U. S. 113; C., B. & Q. E. R. Co. v. Iowa, 94 U. S. 155; Railroad Commission Cases, 116 U. S. 307; Willcox v. Consolidated Gas Co., 212 U. S. 19), and to prescribe the hours of labour for those employed by the State or its municipalities (Aikin v. Kan sas, 191 U. S. 207), this court has sustained the validity of State legislation in prohibiting the manufacture and sale of intoxicating liquors within the State (Mugler v. Kansas, 123 U. S. 623; Crowley v. Christ ensen, supra) ; in limit ing employment in underground mines or work ings, and in smelters and other institutions for the reduction or refining of ores or metals, to eight hours a day except in cases of emergency (Holden v. Hardy, 169 U. S. 366) ; in prohibit ing the sale of cigarettes without license (Gund- ling v. Chicago, 177 U. S. 183) ; in requiring the redemption in cash of store orders or other evidences of indebtedness issued in payment of wages (Knoxville Iron Co. v. Harbison, 183 U. S. 13) ; in prohibiting contracts for options to sell or buy grain or other commodity at a future
82 CHARLES E. HUGHES
time (Booth v. Illinois, 184 IT. S. 425) ; in pro hibiting the employment of women in laundries more than ten hours a day (Muller v. Oregon, 208 U. S. 412) ; and in making it unlawful to contract to pay miners employed at quantity rates upon the basis of screened coal, instead of the weight of the coal as originally produced in the mine (McLean v. Arkansas, 211 U. S. 539).
The principle involved in these decisions is that where the legislative action is arbitrary and has no reasonable relation to a purpose which it is competent for government to effect, the legislature transcends the limits of its power in interfering with liberty of contract; but where there is reasonable relation to an object within the governmental authority, the exercise of the legislative discretion is not sub ject to judicial review. The scope of judicial inquiry in deciding the question of power is not to be confused with the scope of legislative con siderations in dealing with the matter of policy. Whether the enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best means to achieve the de sired result, whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular manner, are matters for the judgment of the legislature, and the earnest conflict of serious opinion does not suf fice to bring them within the range of judicial cognizance. . . .
In dealing with the relation of employer and employed, the legislature has necessarily a wide field of discretion in order that there may be
EXTENSION OF " POLICE POWEB" 83
suitable protection of health and safety, and that peace and good order may be promoted through regulations designed to insure whole some conditions of work and freedom from op pression. What difference, as to the extent of this power, may exist with respect to particular employments, and how far that which may be authorised as to one department of activity may appear to be arbitrary in another, must be determined as cases are presented for decision. But it is well established that, so far as its regu lations are valid, not being arbitrary or unre lated to a proper purpose, the legislature un doubtedly may prevent them from being nulli fied by prohibiting contracts which by modifica tion or waiver would alter or impair the ob ligation imposed. If the legislature may re quire the use of safety devices, it may prohibit agreements to dispense with them. If it may restrict employment in mines and smelters to eight hours a day, it may make contracts for longer service unlawful. In such case the inter ference with the right to contract is incidental to the main object of the regulation, and if the power exists to accomplish the latter, the inter ference is justified as an aid to its exercise.
In the " Illinois child-labour law" case1 he made and applied this admirable statement of the rule:
Where, as here, such legislation has a reason able relation to a purpose which the State was
1Sturges vs. Beauchamp (231 U. S. Eeports, page 320, at page 326).
84 CHAELES E. HUGHES
entitled to effect, it is not open to constitutional objection as a deprivation of liberty or property without due process of law.
As to the requirement of "due process9' that no department of government shall inflict upon individual activities and opportunities an exer cise of purely arbitrary power: The indefinite- ness of the phrase "due process" has hid from at least lay understanding a multitude of early judicial errors, and has led not a few people to think there was something radically wrong with our Constitutional and judicial system. The trouble was that economic, social, political and industrial conditions changed so fast, fol lowing the Civil War, that it took the law — which is always last, and should be, in any social change, although not so hopelessly in arrears — a little time to catch up and readjust its defini tions to the new aspect of things. When is the process of taking a person's life, liberty, and es pecially his property, "due process' '? "Due process" is of course a matter of both substance and of procedural form, and it has taken some time to readjust our legal definitions of "due process" to the new administrative agencies, legislative forms, and procedural improvements which have come with progress in the law and social outlook.
On the procedural side — the side of form, method and "process" — Justice Hughes has also had an influence and performed a part,
WHAT IS "DUE PBOCESS" 85
in giving to "due process" at once a rugged, imperishable vitality, a real power to safeguard things which must never be withheld or aban doned, yet at the same time a practicable con- f ormance to improvements of mechanism which involve no withdrawal of fundamentals. To him, as gleaned from many decisions, "due process" commits to no particular form or mechanism, fetters the present to no particular device or expedient of the past, interposes no barrier to the betterment in methods of deter mination which the future may devise ; yet back of all this flexibility remains a stalwart ad herence to essentials that cannot be denied without calling into action the National judicial power.
The essentials of "due process," as he saw them, were those of proper notice and fair op portunity to be heard in advance of determina tion, a freedom from unfair influence inside or outside the determining tribunal, and action that shows no trace of purely arbitrary charac ter. An open-minded willingness to hear, find, weigh, and fairly act upon, the facts makes any process "due." Some details of the views of Justice Hughes as to what procedural reforms are permissible and what elements are essen tial, will be found in Chapter XVII, post.
As to abridgement of so-called "freedom of contract" in industrial relationship : For many years the shibboleth of judicial obstruction of
86 CHAELES E. HUGHES
so-called "social welfare" legislation, notably in State courts, was the historic doctrine of "freedom of contract, " which of course came down from the time when such a thing existed. When there was an industrial situation in which employer and employe stood on some sort of an equal footing, and the man or woman did not have to go to work in the little shop unless he or she wanted to, because there were plenty of other little shops where they might work, and plenty of ways for them to get a living without working in any industrial establishment at all, the law recognised a kind of mutual freedom of contract, and said that the employer and em ploye might talk «it over and make the kind of a contract they wanted to, each driving the best bargain he could. That kind of a legal doctrine was all right as long as the conditions remained anything like what they were, and as long as the contracting parties stood on some kind of an equality and there was anything approaching freedom of contract.
The difficulty arose when conditions changed, and many employers and their lawyers, and a few judges who mostly had been lawyers for employers, wanted to keep the old law "like a strait- jacket," as Justice Hughes said, quoting from Justice Moody, and kept trying to enforce application of the old law to new conditions. When the farm-hand wanted to turn switchman, and found himself confronted with a railroad corporation which operated all the railroads in
"FEEEDOM OF CONTBACT" 87
his part of the country; when the widow, sud denly thrown on her resources in the little vil lage, came to the mill town, and stood amid whirring fly-wheels and the noise of strange ma chines and tried to dicker with the indifferent sub-foreman of the only factory in town for a chance to earn enough money for the support and schooling of her dependent children ; when the cost of living forced the schoolboy into the shops and the daughter of the family down to the employes' entrance of the jute mill or the box factory, to try to supplement the meagre family earnings, there was not much "freedom of contract" left to be conserved or considered in a community which cared about its own standards of humanity or the physical robust ness of its next generation.
Justice Hughes quickly made known his con currence in the view many times expressed by the Supreme Court that
There is no such thing as absolute freedom of contract. Contracts which contravene public policy cannot be made at all . . . and the power of government extends to the denial of the lib erty of contract to the extent of forbidding or regulating every contract which is reasonably calculated to injuriously affect the public in terests.1
In the first opinion which he wrote for the Court in relation to a regulative topic he quoted
1 Atlantic Coast Line E. E. Co. vs. Riverside Mills (219 U. S. Eeports, page 186).
88 CHAELES E. HUGHES
at length * from the classic repudiation of the "freedom of contract " theory in E olden against Hardy? to the effect that
The fact that both parties are of full age and competent to contract does not necessarily de prive the State of power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. ' i The State still retains an interest in his wel fare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety and welfare are sacrificed or neglected, the State must suf fer."
Throughout his Supreme Court service he rigorously applied this doctrine, and, as in the McGuire case,1 he declared many amplifications of it by holding that the parties to an industrial contract had no right to make agreements al tering or evading, as to themselves, the public policy declared in behalf of the paramount pub lic interest.
As to the requirement that regulatory action shall not amount to a "confiscation" of the property of those entitled to earn a fair return:
1 Chicago, B. $ Q. Ey. Co. vs. McGuire (219 U. S. Reports, page 549). a!69 U. S. Eeports, page 397.
STANDARDS OF " CONFISCATION" 89
Within the necessary limits of this volume, it is not practicable to discuss the principles which Justice Hughes laid down, notably in the Min nesota Rate Cases * and those which followed it, as to the ascertainment of the property val ues on which the returns from the business of a public service corporation are to be figured, and the basis on which determination must be made whether the rates under attack are or are not ' ' confi scatory. ' ' It may be sufficient to in dicate, at this point, the fundamentals of legal and economic standards- which he felt should govern the action of the Commissions and Leg islatures in determining, and of the Courts in reviewing, rates prescribed by regulative authority.
In Northern Pacific Railway Company against North Dakota,2 he said :
The general principles to be applied are not open to controversy. The railroad property is private property devoted to a public use. As a corporation, the owner is subject to the obliga tions of its charter. As the holder of special franchises, it is subject to the conditions upon which they are granted. Aside from specific requirements of this sort, the common carrier must discharge the obligations which inhere in the nature of its business. It must supply facilities that are reasonably adequate ; it must carry upon reasonable terms ; and it must serve
'230 U. S. Eeports, page 352. a23(> U. S. Reports, page 595,
90 CHARLES E. HUGHES
without unjust discrimination. These duties are properly called public duties, and the State within the limits of its jurisdiction may enforce them. The State may prescribe rules to insure fair remuneration and to prevent extortion, to secure substantial equality of treatment in like cases, and to promote safety, good order and convenience.
But, broad as is the power of the regulation, the State does not enjoy the freedom of an owner. The fact that the property is devoted to a public use on certain terms does not jus tify the requirement that it shall be devoted to other public purposes, or to the same use on other terms, or the imposition of restrictions that are not reasonably concerned with the proper conduct of the business according to the undertaking which the carrier has expressly or impliedly assumed. If it has held itself out as a carrier of passengers only, it cannot be compelled to carry freight. As a carrier for hire, it cannot be required to carry persons or goods gratuitously. The case would not be altered by the assertion that the public interest demanded such carriage. The public interest cannot be invoked as a justification for demands which pass the limits of reasonable protection and seek to impose upon the carrier and its property burdens that are not incident to its engagement. In such a case, it would be no answer to say that the carrier obtains from its entire intrastate business a return as to the sufficiency of which in the aggregate it is not entitled to complain. . . .
We have, then, to apply these familiar prin-
STAND AEDS OF "CONFISCATION"
ciples to a case where the State has attempted to fix a rate for the transportation of a com modity under which, taking the results of the business to which the rate is applied, the car rier is compelled to transport the commodity for less than cost or without substantial com pensation in addition to cost. We say this, for we entertain no doubt that, in determining the cost of the transportation of a particular com modity, all the outlays which pertain to it must be considered. We find no basis for distin guishing in this respect between so-called ' ' out- of-pocket costs," or "actual" expenses, and other outlays which are none the less actually made because they are applicable to all traffic, instead of being exclusively incurred in the traffic in question. Illustrations are found in outlays for maintenance of way and structures, general expenses and taxes. It is not a suffi cient reason for excluding such, or other, ex penses to say that they would still have been incurred had the particular commodity not been transported. That commodity has been transported; the common carrier is tinder a duty to carry, and the expenses of its business at a particular time are attributable to what it does carry. The State cannot estimate the cost of carrying coal by throwing the expense inci dent to the maintenance of the roadbed, and the general expenses, upon the carriage of wheat; or the cost of carrying wheat by throwing the burden of the upkeep of the property upon coal and other commodities.
^92 CHARLES E. HUGHES
In Louisville and Nashville R. R. Co. against Garrett,1 he said:
. . . prescribing rates for the future is an act legislative, and not judicial, in kind. . . . It pertains, broadly speaking, to the legislative power. The legislature may act directly, or, in the absence of constitutional restriction, it may commit the authority to fix rates to a subordi nate body. . . .
The contention is that, before the Com mi a- sion makes such an order, it is required to exer cise judicial functions. It is first to deter mine whether the carrier has been exacting more than is just and reasonable; it is to give notice and a hearing; it is to "hear such state ments, arguments or evidence offered by the parties " as it may deem relevant, and it is in case it determines that the carrier is "guilty of extortion " that it is to prescribe the just and reasonable rate. Still, the hearing and deter mination, viewed as prerequisite to the fixing of rates, are merely preliminary to the legis lative act. To this act, the entire proceeding led ; and it was this consequence which gave to the proceeding its distinctive character. Very properly, and, it might be said, necessarily — even without the express command of the stat ute — would the Commission ascertain whether the former, or existing, rate, was unreasonable before it fixed a different rate. And in such an inquiry, for the purpose of prescribing a rule for the future, there would be no invasion of the province of the judicial department. Even
»231 U. S. Keports, page 298.
STANDARDS OF " CONFISCATION " 93
where it is essential to maintain strictly the distinction between the judicial and other branches of the government, it must still be recognised that the ascertainment of facts, or the reaching of conclusions upon evidence taken in the course of a hearing of parties interested, may be entirely proper in the exercise of execu tive or legislative, as distinguished from judi cial, powers. The legislature, had it seen fit, might have conducted similar inquiries through committees of its members, or specially con stituted bodies, upon whose report as to the reasonableness of existing rates it would de cide whether or not they were extortionate and whether other rates should be established, and it might have used methods like those of judi cial tribunals in the endeavor to elicit the facts. It is "the nature of the final act" that deter mines "the nature of the previous inquiry. " . . . The right of the carrier to make its own intrastate rates is subject to the law of the State constitutionally enacted. In the absence of a legislative rate, it is the province of the courts in deciding cases that arise; between shippers and carriers to pass upon the reason ableness of the compensation which the carrier has demanded for its services. In so doing, the courts apply the common law. But it is the province of the legislature to make the law ; and when the legislature, or the body acting under its authority, establishes the rate to be there after charged by the carrier, it is the duty of the courts to enforce the rule of law so made un less the constitutional limits of the rate-mak ing power have been transgressed. The rate-
94 CHAELES E. HUGHES
making power necessarily implies a range of legislative discretion; and, so long as the legis lative action is within its proper sphere, the courts are not entitled to interpose and upon their own investigation of traffic conditions and transportation problems to substitute their judgment with respect to the reasonableness of rates for that of the legislature or of the Rail road Commission exercising its delegated power. It may be assumed that the statute of Kentucky forbade arbitrary action; it required a hearing, the consideration of the relevant statements, evidence and arguments submitted, and a determination by the Commission whether the existing rates were excessive. But, on these conditions being fulfilled, the questions of fact which might arise as to the reasonable ness of the existing rates in the consideration preliminary to legislative action would not be come, as such, judicial questions to be reex- amined by the courts. The appropriate ques tions for the courts would be whether the Com mission acted within the authority duly con ferred by the legislature, and also, so far as the amount of compensation permitted by the prescribed rates is concerned, whether the Commission went beyond the domain of the State's legislative power and violated the con stitutional rights of property by imposing con- fiscatory requirements. . . . Undoubtedly, a State may permit appeals to its courts from the rate-making orders of its Railroad Commis sion and, upon the review of such orders, it may expressly authorise its judicial tribunals to in vestigate and decide questions which would
THE LAW AND THE FACTS 95
otherwise not belong to them, or even to act legislatively. But the guaranties of the Four teenth Amendment do not entitle the carrier to the exercise by the courts of such extra- judicial authority.
As to the belief that regulative legislation and governmental action should be based upon, and should from time to time be shaped accord ing to, a thorough disclosure of the relevant social facts, rather than predetermined con cepts of Constitutional construction, economic theory, or governmental polity: More than by anything else — even more than by the formid able array of forward-looking decisions which bear his name and the imprint of the free- spirited play of his facile mind — the unmistak able alignment of the statesmanship of Mr. Hughes with the constructive social statesman ship of his day and age is established by his freedom from academic theorising and eco nomic preconception, and his willingness to face facts as from time to time disclosed. In inti mate knowledge of the actualities of industrial conditions — for example, of the atmosphere of the plant of a great steel corporation or a syn dicate of textile manufactories, or of the actual environment in which men and women, boys and girls of factory towns have so much difficulty in preserving the good, the true and beautiful in their lives — he has perhaps not the grasp and
96 CHAELES E. HUGHES
perspective possessed by men who have been grappling at first hand with these problems dur ing most of their lives. But this thing stands out through his executive and judicial career: He has a passion for quickly finding out the facts, and when he finds them, and finds them all, he follows them with a fidelity and a free readjustment of policy to experience, which, after all, is the real test of the highest pro gressive statesmanship in a period of economic and social reconstruction.
This pragmatism and freedom from precon ception is likewise of the essence of American institutions, although it has at times seemed absent from American statesmanship. As Von Hoist says, in his "Constitutional Law of the United States":
Like every Constitution which has or can have a real life, that of the United States of America is a result of actual circumstances of the past and the present, and not a product of abstract academic theorising. ... A Constitution which resembles a Chinese shoe can suit only a Nation which has sunk into Chinese inertia. . . . The real essence of the Constitution, as it takes con crete shape in legislation, must grow and change with the advancing public and private life of the people. ... If the statesman is bound to be, in the practical discharge of his duties, a conscientious jurist, the jurist must, in his work of examination and testing, keep always in mind the point of view of the statesman.
THE LAW AND THE FACTS 97
Perhaps it has been a lifetime fondness for the physical sciences in hours of relaxation, perhaps a natural bent of mind or the hard les son of experience at the Bar and in great legis lative inquiries, that has given to Mr. Hughes this quiet, unpretentious, thorough-going fond ness for a fact and aversion to merely academic theorising and preconception; but his pragma tism of outlook is of the grass roots of progres sive and constructive statesmanship, in judicial as well as administrative position. As Profes sor Roscoe Pound, perhaps the most clear sighted of all American students of modern pub lic law, said, in 1909 :
Jurisprudence is the last in the march of the sciences away from the method of deduction, from predetermined conceptions. The socio logical movement in jurisprudence, the move ment for pragmatism as 'a philosophy of law, the movement for the adjustment of principles and doctrines to the human conditions they are to govern rather than assumed first principles, the movement for putting the human factor in the central place and relegating logic to its true position as an instrument, has scarcely shown itself as yet in America.
The predominance of the varying social fac tor has, from a somewhat different angle, been expressed by Justice Holmes of the Supreme Court, in his observation that
98 CHARLES E. HUGHES
... in law we are dealing almost wholly with considerations of social advantage which very rarely permit of quantitative determina tion.
The broad bearings of the proper interpre tation and application of the ' ' Bills of Rights ' ' were elaborated upon by Justice Hughes before the New York State Bar Association last January :
Recurring to the work of the courts, — it is evident that legislative activity is constantly raising questions involving not simply the con stitutional adjustment of national and State power, but also the application of the historic clauses of our Bills of Rights securing life, lib erty and property. Here, also, our system is under an increased strain as efforts to impose new obligations are brought to the constitu tional test. In view of the impossibility of com prehensive definition of the content of the great guaranties of due process and equal protection, and of the necessity for what Mr. Justice Miller called the "gradual process of judicial inclusion and exclusion, as the cases presented for deci sion require/' there is peculiar danger of defec tive generalisation in a critical estimate of re sults. For a fair view of judicial work in this field, it must be judged in its entirety and with out losing sight of the broad range of legisla tive discretion which is every day recognised despite constant efforts to induce judicial deci sion upon matters which are essentially mere
THE " BILLS OF EIGHTS" 99
questions of legislative expediency and over which the courts have no constitutional author ity. Even with respect to procedure, which is of the essence of due process, it has repeatedly been held that there was no intention by the adoption of the Fourteenth Amendment to con fine State practice to archaic forms. For, as Mr. Justice Moody said, in Twining v. New Jer sey, if that were so, "the procedure of the first half of the seventeenth century would be fas tened upon the American jurisprudence like a strait-jacket, only to be unloosed by constitu tional amendment," and that, he continued, quoting from Mr. Justice Matthews in Hurtado v. California, would be "to deny every quality of the law but its age, and to render it incapable of progress or improvement." Thus it has been found, for example, that there was nothing in the guaranty %of due process of law contained in the Fourteenth Amendment which required a State to proceed by indictment by a grand jury (instead of by information) or by trial by a petit jury of twelve persons in prosecutions for infamous crimes, or from dispensing with the exemption from compulsory self-incrimination. And in the operation of this amendment accord ing to our established constitutional doctrine as a restriction upon the enactment of substan tive legislation, it is manifest that the prohibi tion was not intended to override legislative action by the views of judges as to its wisdom. The amendment was the affirmation of indi vidual rights deemed to be fundamental. It was incorporated in the Constitution with full knowledge of the judicial duty to apply the su-
100 CHARLES E. HUGHES
preme law in the decision of controversies. What was thus sought was not a privilege to deny the legislative authority to enact reason able measures for the promotion of the safety, health, jnorals and welfare of the people, not to make improvement or rational experimen tation impossible, but to preserve and enforce the primary and fundamental conceptions of justice which demand proper notice and oppor tunity to be heard before a competent tribunal in advance of condemnation, immunity from the confiscation of property, and, with respect to every department of government, freedom from the exercise of purely arbitrary power. The perpetuity of this judicial function characteris tic of our system, in my judgment, lies with the courts themselves rather than with their critics. With the alternative of legislative power, un controlled no matter how indulged, the people have preferred the interposition of the judicial scrutiny in order to conserve what have been deemed to be the essentials of liberty. It is not a function likely to be disturbed so long as judges in the discharge of their delicate and difficult duty exhibit a profound knowledge and accurate appreciation of the facts of commercial and industrial activity, and by their intelligence and fidelity in the application of the Constitu tion according to its true intent commend its guaranties to the judgment of a fair-minded people jealous alike of public rights and in dividual opportunities.
CHAPTER IV
THE SAFEGUAKDS AGAINST ADTJLTEKATION ANT) MIS-BKANDING OF FOODS AND DEUGS
ONE of the notable public services performed by Mr. Hughes as a Justice of the Supreme Court was in connection with the Food and Drugs Act of 1906 and similar statutes, State and Federal, enacted to aid the public in pro tecting itself from " notorious abuses " in con nection with the impurity of foods and drugs and the falsity of representations made as to their quality, constituents, and curative prop erties. To the interpretation and application of these enactments and the analysis of the in tricate trade conditions on which their applica tion often hinges, he brought a wealth of ad ministrative experience, a mind accustomed to the exact facts of physical science and commer cial life, and a broad understanding of the con ditions with which the community was trying to grapple, in this field so largely new to admin istrative law.
The first dissenting opinion 1 which he wrote as a member of the Supreme Court dealt with
1Z7. S. vs. Johnson (221 U. S. Reports, page 488). 101
102 CHARLES E. HUGHES
the Food and Drugs Act of 1906. Congress had prescribed penalties for what it termed the "mis-branding" of drugs, and a man named Johnson was charged with delivering for ship ment in interstate commerce packages and bot tles of drugs alleged to have been " mis- branded" within the meaning of the Act. Cer tain of the bottles were labelled "Cancerine tablets" and "Cancerine"; the combination was known as "Dr. Johnson's Mild Combina tion Treatment for Cancer" ; and the labels con tained other statements explaining at length the curative properties of the contents, if taken in treatment of cancer or other malignant mala dies. The majority of the Court were of the opinion that inasmuch as fraudulent "mis- branding" necessarily consisted of mis-state ments of fact, rather than of opinion, the stat ute must be construed to prohibit false state ments only as to the identity of the article — for example, as to its purity, quality, strength, in gredients, and the like — and could not be held to condemn false statements by the manufac turer as to what the article would cure.
Justice Hughes entered emphatic dissent from this view, and Justices Harlan and Day concurred with him. To label a worthless liquid a cancer curative and to sell tablets of inert matter with assurance of its proved efficacy in relief from deadly diseases, seemed a false rep resentation of the principal fact as to the article sold, and he urged with great earnestness that
FOODS AND DRUGS 103
Congress had aimed at false statements of fact as to curative properties of a drug, at least no less than at anything else falsely asserted as to it. The majority construction seemed there fore to defeat the legislative purpose and leave the Act largely ineffective. He said, in part :
According to the construction placed upon the statute by the court below in quashing the indictment, if one puts upon the market, in interstate commerce, tablets of inert matter or a liquid wholly worthless for any curative pur poses as he well knows, with the label " Cancer Cure" or "Remedy for Epilepsy," he is not guilty of an offence, for in the sense attributed by that construction to the words of the statute he has not made a statement regarding the article which is false or misleading in any particular.
I fail to find a sufficient warrant for this limitation, and on the contrary, it seems to me to be opposed to the intent of Congress and to deprive the act of a very salutary effect. . . . . It is, of course, true, that when Congress used the words "false or misleading statement" it referred to a well-defined category in the law and must be taken to have intended statements of fact and not mere expressions of opinion. The argument is that the curative properties of articles purveyed as medicinal preparations are matters of opinion, and the contrariety of views among medical practitioners, and the conflict between the schools of medicine, are impres sively described. But, granting the wide do-
104 CHAELES E. HUGHES
main of opinion, and allowing the broadest range to the conflict of medical views, there still remains a field in which statements as to cura tive properties are downright falsehoods and in no sense expressions of judgment. This field I believe this statute covers. . . .
The question then is whether, if an article is shipped in interstate commerce, bearing on its label a representation that it is a cure for a given disease, when on a showing of the facts there would be a unanimous agreement that it was absolutely worthless and an out and out cheat, the act of Congress can be said to apply to it. To my mind the answer appears clear. . . .
Nor does it seem to me that any serious ques tion arises in this case as to the power of Con gress. I take it to be conceded that mis-brand ing may cover statements as to strength, qual ity and purity. But so long as the statement is not as to matter of opinion, but consists of a false representation of fact — in labelling the article as a cure when it is nothing of the sort from any point of view, but wholly worthless— - there would appear to be no basis for a consti tutional distinction. It is none the less descrip tive — and falsely descriptive — of the article. Why should not worthless stuff, purveyed under false labels as cures, be made contra band of interstate commerce, — as well as lot tery tickets?
This was in May of 1911. The following year Congress amended the Food and Drugs Act, by
FOODS AND DRUGS 105
the so-called "Sherley Amendment/' which provided that for the purposes of that Act a drug should be deemed to be "mis-branded":
If its package or label shall bear or contain any statement, design or device regarding the curative or therapeutic effect of such article . . . which is false and fraudulent.
This was of course the orderly procedure in a responsible democracy: If the Court, as the agency of the most expert interpretation of the written statutes, finds that the language thus far used is not sufficient to accomplish what was probably the legislative purpose, prompt action by the legislative branch of gov ernment clears the difficulty and makes unmis takable the intent to reach by legislation the particular abuse as to which there was question of the efficacy of the original enactment. Con gress having thus given legislative sanction to the interpretation which Justice Hughes had unsuccessfully from the first endeavoured to have the Court place upon the term " mis- branding, " the Supreme Court, on January 10, 1916, through an opinion l written by Justice Hughes, unanimously upheld the constitutional ity of the Sherley Amendment and sustained the condemnation and seizure of cases of drugs known as "Eckman's Alterative," which were
1 Seven Cases of Eckman's Alterative vs. U. S. (239 U. S. Beports, page 510).
106 CHAELES E. HUGHES
sent out with circulars containing the untrue statement: "Effective as a preventative for pneumonia/' "We know that it has cured and has and will cure tuberculosis.''
The last of the cases decided by Justice Hughes under the Food and Drugs Act involved the long-litigated properties of "Coca Cola" and the propriety of its shipment in interstate commerce. The Federal Government had, un der the provisions of that Act, filed a libel for the condemnation of certain cases of Coca Cola which had been seized while in course of trans portation, for sale, from Atlanta to Chatta nooga. The charge of the Government was that the product was both " adulterated " and "mis- branded," within the meaning of the statute. The claim as to adulteration was, in substance, that the beverage contained ' ' an added poison ous or other added deleterious ingredient" — caffeine — which rendered the product harmful to health. The claim as to "mis-branding" was that the name "Coca Cola" was a repre sentation of the presence of both "coca" and "cola"; that the beverage in fact contained no coca and very little, if any, cola; and that ac cordingly the product was but an "imitation" of those substances, offered for sale under their "distinctive name," within the inhibition of the statute.
The Coca Cola Company at once claimed the goods which the Government had seized, and
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demanded a jury trial, as was its right. The an swer of the Coca Cola Company admitted that the product contained as one of its ingredients "a small portion of caffeine/' but denied that the caffeine in this quantity was either an " added ingredient," within the meaning of the law, or i ' an added deleterious ingredient which may render such article injurious to health. " The company also denied that there were any such substances known as either "coca" or "cola" under "their own distinctive names," and asserted that the beverage did, however, contain certain elements or substances derived from cola nuts and coca leaves, which the com pany said was sufficient to require dismissal of a "mis-branding" charge.
After taking a great deal of testimony, the United States District Judge who heard the case directed a verdict in favour of the Coca Cola Company, without letting the jury pass upon the issues, and the Circuit Court of Ap peals sustained his action. The question be- ' fore the Supreme Court, therefore, was whether the Government was right in its contentions, at least to the extent that the disputed questions of fact as to the nature and effect of Coca Cola and its ingredients should have been submitted to the jury. Justice Hughes, in an opinion x handed down by the Court on May 22, 1916, sustained fully the Government's contentions as to the vitality and efficacy of the Food and
1 U. S. vs. Coca Cola Co. (241 U. S. Eeports, page 265).
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Drugs Act, and sent the case back for deter mination in the light of the interpretation placed upon the statute by the highest Court.
Recognising "the extreme importance of the question thus presented with respect t.o the ap plication of the Act to articles of food sold under trade names," Justice Hughes' devo tion to realities and his rugged common sense in analysis of trade conditions led him to clear away the elaborate artifice of statutory con struction with which it was sought to paralyse the practical workings of the law. He held with directness and conciseness that
The facts that a formula has been made up and followed and a distinctive name adopted do not suffice to take an article from the reach of the statute; that the standard by which the combination in such a case is to be judged is not necessarily the combination itself; that a poisonous or deleterious ingredient with the stated injurious effect may still be an added ingredient in the statutory sense, although it is covered by the formula and made a constituent of the article sold.
Likewise he ruled that the terms " adultera tion " and "mis-branding" are used in the stat ute in a special sense, have their own glossary in that use, and are not controlled by their ordi nary definitions. For example, "we cannot . . . assume that simply because a prepared food has its formula and distinctive name, it is
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not, as such, adulterated. ... It is plain that the article may be ' adulterated, ' if in fact it con tains an ' ingredient deleterious or detrimental to health.' " Again, "The substance which renders the article injurious, and the introduc tion of which causes * adulteration,' may be one of the ' component parts, or constituents, of the article which is the subject of the described traffic.' " Finally, he held that "proprietary foods, sold under distinctive names, are within the purview of the provision" against "adul teration" and "mis-branding," and this with out regard to whether "they were already on the market when the statute was passed."
Justice Hughes' reasoning upon some of the points involved is strikingly direct and prag matic :
Having these considerations in mind, we deem it to be clear that, whatever difficulties there may be in construing the provision, the claimant's argument proves far too much. We are not now dealing with the question whether the caffeine did, or might, render the article in question injurious; that is a separate inquiry. The fundamental contention of the claimant, as we have seen, is that a constituent of a food product having a distinctive name cannot be an "added" ingredient. In such case, the standard is said to be the food product itself which the name designates. It must be, it is urged, this "finished product" that is "adul terated." In that view, there would seem to
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be no escape from the conclusion that however poisonous or deleterious the introduced in gredient might be, and however injurious its effect, if it be made a constituent of a product having its own distinctive name it is not within the provision. If this were so, the 'statute would be reduced to an absurdity. Manufac turers would be free, for example, to put ar senic or strychnine or other poisonous or dele terious ingredients with an unquestioned in jurious effect into compound articles of food, provided the compound were made according to formula and sold under some fanciful name which would be distinctive. When challenged upon the ground that the poison was an " added" ingredient, the answer would be that without it the so-called food product would not be the product described by the name. Further, if an article purporting to be an ordi nary food product sold under its ordinary name were condemned because of some added deleterious ingredient, it would be difficult to see why the same result could not be attained with impunity by composing a formula and giving a distinctive name to the article with the criticised substance as a component part. We think that an analysis of the statute shows such a construction of the provision to be inad missible. Certain incongruities may follow from any definition of the word " added," but we cannot conclude that it was the intention of Congress to afford immunity by the simple choice of a formula and a name. It does not seem to us to be a reasonable construction that in the case of "proprietary foods" manufac-
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tared under secret formulas Congress was simply concerned with additions to what such formulas might embrace. Undoubtedly, it was not desired needlessly to embarrass manufac turers of " proprietary foods" sold under dis tinctive names, but it was not the purpose of the Act to protect articles of this sort regard less of their character. Only such food prod ucts as contain "no unwholesome added in gredient" are within the saving clause and in using the words quoted we are satisfied that Congress did not make the proprietary article its own standard.
Equally extreme and inadmissible is the sug gestion that where a "proprietary food" would not be the same without the harmful ingredient, to eliminate the latter would constitute an "adulteration" under § 7, subdivision Third, by the abstraction of a "valuable constituent." In that subdivision Congress evidently refers to articles of food which normally are not within the condemnation of the Act. Congress certainly did not intend that a poisonous or deleterious ingredient which made a proprie tary food an enemy to the public health should be treated as a "valuable constituent," or to induce the continued use of such injurious in gredients by making their elimination an adulteration subject to the penalties of the statute.
It is apparent, however, that Congress in using the word "added" had some distinction in view. In the Senate bill (for which the measure as adopted was a substitute) there was a separate clause relating to "liquors," provid-
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ing that the article should be deemed to be adulterated if it contained "any added ingredi ent of a poisonous or deleterious character' '; while in the case of food (which was defined as excluding liquors) the article was to be deemed to be "adulterated" if it contained "any added poisonous or other ingredient which may ren der such article injurious to human health." Cong. Bee., 59th Cong., 1st Sess., Vol. 40, p. 897. In explaining the provision as to "liquors," Senator Heyburn, the chairman of the Senate Committee having the bill in charge, stated to the Senate (Id., p. 2647) : "The word ' added/ after very mature consideration by your com mittee, was adopted because of the fact that there is to be found in nature's products as she produces them, poisonous substances to be de termined by analysis. Nature has so combined them that they are not a danger or an evil— that is, so long as they are left in the chemical connection in which nature has organised them ; but when they are extracted by the artificial processes of chemistry they become a poison. You can extract poison from grain or its prod ucts and when it is extracted it is a deadly poison; but if you leave that poison as nature embodied it in the original substances it is not a dangerous poison or an active agency of poison at all. — So, in order to avoid the threat that those who produce a perfectly legitimate article from a natural product might be held liable because the product contained nature's poison it was thought sufficient to provide against the adding of any new substance that was in itself a poison, and thus emphasising the
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evils of existing conditions in nature 's product. That is the reason the word ' added' is in the bill. Fusel oil is a poison. If you extract it, it becomes a single active agency of destruction, but allow it to remain in the combination where nature has placed it, and, while it is nominally a poison, it is a harmless one, or comparatively so." For the Senate bill, the House of Repre sentatives substituted a measure which had the particular provisions now under consideration in substantially the same form in which they were finally enacted into law. ( Section 7, subd. Fifth; § 8, subd. Fourth, provisos.) And the Committee of the House of Representatives in reporting this substituted measure said (H. R. Report, No. 2118, 59th Cong., 1st Sess., pp. 6, 7, 11) : "The purpose of the pending meas ure is not to compel people to consume par ticular kinds of foods. It is not to compel manufacturers to produce particular kinds or grades of foods. One of the principal objects of the bill is to prohibit in the manufacture of foods intended for interstate commerce the ad dition of foreign substances poisonous or dele terious to health. The bill does not relate to any natural constituents of food products which are placed in the foods by nature itself. It is well known that in many kinds of foods in their ^natural state some quantity of poisonous or deleterious ingredients exists. How far these substances may be deleterious to health when the food articles containing them are consumed may be a subject of dispute between the scien tists, but the bill reported does not in any way consider that question. If, however, poison-
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ous or deleterious substances are added by man to the food product, then the bill declares the article to be adulterated and forbids interstate traffic."
This statement throws light upon the inten tion of Congress. Illustrations are given to show possible incongruous results of the test, but they do not outweigh this deliberate decla ration of purpose ; nor do we find in the subse quent legislative history of the substituted measure containing the provision any opposing statement as to the significance of the phrase.
With the way thus cleared for a remedial application of the statute, Justice Hughes took up the two questions involved in the facts of the case at bar. Was the caffeine an " added ingredient "1 As to this he said:
In the present case, the article belongs to a familiar group ; it is a syrup. It was originally called "Coca Cola Syrup and Extract." It is produced by melting sugar, — the analysis show ing that 52.64 per cent, of the product is sugar and 42.63 per cent, is water. Into the syrup thus formed by boiling the sugar, there are introduced colouring, flavouring, and other in gredients, in order to give the syrup a dis tinctive character. The caffeine, as has been said, is introduced in the second or third "melt ing." We see no escape from the conclusion that it is an "added" ingredient within the meaning of the statute.
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Was the caffeine " poisonous " or " deleteri ous' '? This question he says the jury should have been permitted to decide and so there must be a re-trial, with an application of the statute as defined by the Supreme Court :
Upon the remaining question whether the caffeine was a poisonous or deleterious in gredient which might render the article injuri ous to health, there was a decided conflict of competent evidence. The Government's ex perts gave testimony to the effect that it was, and "the claimant introduced evidence to show the contrary. It is sufficient to say that the question was plainly one of fact which was for the consideration of the jury.
In a manner equally pointed and cogent the question of "mis-branding" involved in* the name "Coca, Cola" was discussed, and the rule laid down that although what the statute refers to as a "distinctive name" may be alto gether arbitrary, it must be one that distin guishes the article; and where a "distinctive name" is formed by the uniting of several names, each descriptive of a known substance or article, it amounts to a "mis-branding" con demned by law, if the article sold does not contain the articles generally known individu ally by any of such names. The opinion said, on this point:
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We are thus brought to the question whether if the names coca and cola were respectively descriptive, as the Government contends, a combination of the two names constituted a " distinctive name" within the protection of the proviso in case either of the described ingredi ents was absent. It is said that "coca" indi cates one article, and "cola" another, but that the two names together did not constitute the distinctive name of any other substance or com bination of substances. The contention leads far. To take the illustration suggested in argu ment, it would permit a manufacturer, who could not use the name chocolate to describe that which was not chocolate, or vanilla to de scribe that which was not vanilla, to designate a mixture as "Chocolate-Vanilla," although it was destitute of either or both, provided the combined name had not been previously used. We think that the contention misses the point of the proviso. A mixture or compound may have a name descriptive of its ingredients or an arbitrary name. The latter (if not already appropriated) being arbitrary, designates the particular product. Names, however, which are merely descriptive of ingredients are not primarily distinctive names save as they ap propriately describe the compound with such ingredients. To call the compound by a name descriptive of ingredients which are not pres ent is not to give it "its own distinctive name" — which distinguishes it from other compounds — but to give it the name of a different com pound. That, in our judgment, is not protected by the proviso, unless the name has achieved
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a secondary significance as descriptive of a product known to be destitute of the ingredi ents indicated by its primary meaning.
In the present case we are of opinion that it could not be said as matter of law that 'the name was not primarily descriptive of a com pound with coca and cola ingredients, as charged. Nor is there basis for the conclusion that the designation had attained a secondary meaning as the name of a compound from which either coca or cola ingredients were known to be absent; the claimant has always insisted, and now insists, that its product con tains both. But if the name was found to be descriptive, as charged, there was clearly a con flict of evidence with respect to the .presence of any coca ingredient. We conclude that the court erred in directing a verdict on the second count.
During the past five years, the Supreme Court has likewise given great vitality to the power of the States to enact and enforce effec tive regulations against impurity in foods and drugs and the presence of deleterious sub stances therein. In Price v. Illinois,1 Mrs. Price had been found guilty, in the Chicago Municipal Court, of violating the "pure food" statute of that commonwealth. She had sold in Chicago a preservative compound well known to house wives under the name of "Mrs. Price's Canning Compound. " The State authorities charged,
* Price vs. Illinois (238 IT. S. Keports, page 446).
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and the State Courts had determined, that this so-called "preservative of food'' was "unwhole some and injurious, in that it contained boric acid." Mrs. Price promptly appealed to the Supreme Court of the United States, and Justice Hughes wrote the opinion of the Court in her case.
The Supreme Court of the United States of course did not undertake to say whether boric acid, which Mrs. Price's "canning compound" concededly contained, was in fact "injurious to health or to the human system." These nine men of the law behind a long bench down in a "Washington court-room did not try to decide that, and the provisions of the Constitution as to the jurisdiction of the Supreme Court did not put that task upon them. The Supreme Court said, as it does in all similar cases, that the State authorities, with the aid of their chemists and their health experts, are entitled to form their own judgment as to that, and unless their determination that "boric acid" is unhealthful appears under all the evidence to be so alto gether unreasonable and arbitrary that the trained minds of the Court can discover no fair or probable foundation for such a conclusion, the Supreme Court has no right or reason to interfere with the action of the State experts. If the house-wives of Illinois want Mrs. Price's "canning compound" taken out of the cate gory of prohibited articles, and want to use this boric acid preservative in their fall canning,
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they should let their views be known to their legislators, and vote accordingly; the Supreme Court cannot interfere. The Court, in other words, said, in substance, that it was no answer to the action of the State authorities and the State Courts to say that the injurious effects of boric acid are debatable, because if the effects are debatable, the legislature of Illinois is enti tled to use its own best judgment, with the aid of the most expert advisers it can obtain, and the matter rests with the people of Illinois, not a Court in Washington.
Justice Hughes wrote, in part, as follows, in the Price case:
The State has undoubted power to protect the health of its people and to impose restric tions having reasonable relation to that end. The nature and extent of restrictions of this character are matters for the legislative judg ment in defining the policy of the State and the safeguards required. In the avowed exer cise of this power, the legislature of Illinois has enacted a prohibition — as the statute is con strued — against the sale of food preservatives containing boric acid. And unless this prohibi tion is palpably unreasonable and arbitrary we are not at liberty to say that it passes beyond the limits of the State's protective author- ity
The contention of the plaintiff in error could .be granted only if it appeared that by a con sensus of opinion the preservative was unques-
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tionably harmless with respect to its contem plated uses, that is, that it indubitably must be classed as a wholesale article of commerce so innocuous in its designed use and so unrelated in any way to any possible danger to the public health that the enactment must be considered as a merely arbitrary interference with the property and liberty of the citizen. It is plainly not enough that the subject should be regarded as debatable. If it be debatable, the legislature is entitled to its own judgment, and that judg ment is not to be superseded by the verdict of a jury upon the issue which