The Constitution of the United States of America: Analysis and Interpretation Part 44

_See infra._

[369] 12 Stat. 489 (1862).

[370] Thomson _v._ Pacific Railroad, 9 Wall. 579, 589 (1870); California _v._ Central Pacific Railroad, 127 U.S. 1, 39 (1888); Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890); Luxton _v._ North River Bridge Co., 153 U.S. 525, 530 (1894).

[371] 14 Stat. 66 (1866). In his first annual message (December 4, 1865), President Johnson had asked Congress "to prevent any selfish impediment [by the States] to the free circulation of men and merchandise." 6 Richardson, Messages and Papers of the Presidents, 362.

[372] 14 Stat. 221; Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1, 3-4, 11 (1878).

[373] R.S. Secs. 4386-4390; replaced today by the Live Stock Transportation Act of 1906 (34 Stat. 607).

[374] 94 U.S. 113 (1877).

[375] 118 U.S. 557.

[376] 24 Stat. 379 (1887).

[377] 154 U.S. 447.

[378] Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S.

144, 176 (1897). _See also_ Cincinnati, N.O. & T.P.R. Co. _v._ Interstate Commerce Commission, 162 U.S. 184 (1896).

[379] 34 Stat. 584.

[380] 36 Stat. 539 (1910).

[381] By the Federal Communications Act of 1934 (48 Stat. 1081), this jurisdiction was handed over to the Federal Communications Commission, created by the act.

[382] 41 Stat. 474 -- 400; 488 -- 422. The act must today be read in conjunction with the Transportation Act of 1940 (54 Stat. 898), which "was intended, together with the old law, to provide a completely integrated interstate regulatory system over motor, railroad, and water carriers." United States _v._ Pennsylvania R. Co., 323 U.S. 612, 618-619 (1945).

[383] Houston E. & W.T.R. Co. _v._ United States (Shreveport Case), 234 U.S. 342 (1914). Forty States, through their Attorneys General, intervened in the case against the Commission's order.

[384] Ibid. 351-352.

[385] Ibid. 353. _See_ to the same effect American Express Co. _v._ Caldwell, 244 U.S. 617, 627 (1917); Pacific Teleph. & Teleg. Co. _v._ Tax Commission (Washington), 297 U.S. 403 (1936); Weiss _v._ United States, 308 U.S. 321 (1939); Bethlehem Steel Co. _v._ New York Labor Relations Bd., 330 U.S. 767, 772 (1947); and United States _v._ Walsh, 331 U.S. 432, 438 (1947).

[386] 257 U.S. 563 (1922).

[387] In North Carolina _v._ United States, 325 U.S. 507 (1945), the Court disallowed as _ultra vires_ an order of the Interstate Commerce Commission, setting aside State-prescribed intrastate pa.s.senger rates, on the ground that it was unsupported by clear findings and evidence sufficient to show its necessity.

Among the various provisions of the Interstate Commerce Commission Act that have been sustained in specific decisions are the following: a provision penalizing shippers for obtaining transportation at less than published rates, Armour Packing Co. _v._ United States, 209 U.S. 56 (1908); the so-called "commodities clause" of the Hepburn Act of June 29, 1906, construed as prohibiting the hauling of commodities in which the carrier had at the _time of haul_ a proprietary interest, United States _v._ Delaware & H. Co., 213 U.S. 366 (1909); a provision of the same act abrogating life pa.s.ses, Louisville & N.R. Co. _v._ Mottley, 219 U.S. 467 (1911); a provision of the same act authorizing the Commission to regulate the entire system of bookkeeping of interstate carriers, including intrastate accounts, Interstate Commerce Commission _v._ Goodrich Transit Co., 224 U.S. 194 (1912); the "long and short haul"

clause of the Interstate Commerce Act, United States _v._ Atchison, T. & S.F.R. Co. (Intermountain Rate Cases), 234 U.S. 476 (1914); an order of the Commission establishing the so-called uniform zone or block system of express rates, American Express Co. _v._ South Dakota ex rel.

Caldwell, 244 U.S. 617 (1917); an order of the Commission directing the abandonment of an intrastate branch of an interstate railroad, Colorado _v._ United States, 271 U.S. 153 (1926); an order of the Commission fixing rates of a transportation company operating solely in the District of Columbia, on the ground that its carriage of pa.s.sengers const.i.tuted part of an interstate movement, United States _v._ Capital Transit Co., 338 U.S. 286 (1949).

[388] United States _v._ Ohio Oil Co. (Pipe Line Cases), 234 U.S. 548 (1914).

[389] _See also_ State Corp. Commission _v._ Wichita Gas Co., 290 U.S.

561 (1934); Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921); United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Pennsylvania _v._ West Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett _v._ Kansas Natural Gas Co., 265 U.S. 298 (1924).

[390] Public Utilities Com. _v._ Attleboro Steam and Electric Co., 273 U.S. 83 (1927). _See also_ Utah Power & Light Co. _v._ Pfost, 286 U.S.

165 (1932).

[391] 49 Stat. 838.

[392] The Natural Gas Act of 1938, 52 Stat. 821.

[393] 315 U.S. 575 (1942).

[394] Ibid. 582. Sales to distributors by a wholesaler of natural gas which is delivered to it from an out-of-State source are subject to the rate-making powers of the Federal Power Commission. Colorado-Wyoming Co.

_v._ Comm'n., 324 U.S. 626 (1945). _See also_ Illinois Natural Gas Co.

_v._ Central Illinois Pub. Serv. Co., 314 U.S. 498 (1942); _also_ Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464, decided January 9, 1950, where it was held that a natural gas company which, while operating exclusively in one State, sold there directly to consumers gas transported into the State through the interstate lines of other companies, "a natural gas company" within the meaning of the act of 1938, and so could be required by the Commission to keep uniform accounts and submit reports.

[395] 48 Stat. 1064.

[396] 49 Stat. 543; since amended in some respects in 1938 (52 Stat.

973) and 1940 (54 Stat. 735).

[397] 52 Stat. 973.

[398] 27 Stat. 531. As early as 1838 laws were pa.s.sed requiring the installation of safety devices on steam vessels. 5 Stat. 304 and 626.

Along with the Safety Appliance Acts mention should also be made of acts requiring the use of ashpans on locomotives (35 Stat. 476 (1908)); the inspection of boilers (36 Stat. 913 (1911) and 38 Stat. 1192 (1915)); the use of ladders, drawbars, etc., on cars (36 Stat. 298 (1910)); etc.

[399] 32 Stat. 943.

[400] 222 U.S. 20 (1911).

[401] Ibid. 26-27. _See also_ Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33 (1916); and United States _v._ California, 297 U.S. 175 (1936). In the latter case the intrastate railway involved was property of the State.

[402] 34 Stat. 1415.

[403] Baltimore & O.R. Co. _v._ Interstate Commerce Com., 221 U.S. 612, 618-619 (1911).

[404] 34 Stat. 232, disallowed in part in Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908); 35 Stat. 65, sustained in the Second Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. Co.), 223 U.S. 1 (1912).

[405] _See_ 223 U.S. at 19-22.

[406] Ibid. 48. Because the injured employee must, in order to benefit from the act, be employed at the time of his injury "in interstate commerce," the Court's application of it has given rise to some narrow distinctions. _See_ Illinois Central R. Co. _v._ Peery, 242 U.S. 292 (1916); New York Central R. Co. _v._ White, 243 U.S. 188 (1917); Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916); Louisville & N.R. Co. _v._ Parker, 242 U.S. 13 (1916); Illinois Central R. Co. _v._ Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. _v._ Seale, 229 U.S. 156 (1913); Pedersen _v._ Delaware, L. & W.R. Co., 229 U.S. 146 (1913); Shanks _v._ Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917); Southern R. Co. _v._ Puckett, 244 U.S. 571 (1917); Reed _v._ Director General of Railroads, 258 U.S. 92 (1922). That Congress might "legislate as to the qualifications, duties, and liabilities of employes and others on railway trains engaged in that [interstate] commerce," was stated by the Court in Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96, 99 (1888).

[407] 208 U.S. 161 (1908).

[408] 30 Stat. 424.

[409] 44. Stat. 577.

[410] Texas & N.O.R. Co. _v._ Brotherhood of R. & S.S. Clerks, 281 U.S.

548 (1930). The provision of Railway Labor Act of 1926 (44 Stat. 577), preventing interference by either party with organization or designation of representatives by the other, is within the const.i.tutional authority of Congress. Similarly, "back shop" employees of an interstate carrier, who engaged in making heavy repairs on locomotives and cars withdrawn from service for that purpose for long periods (an average of 105 days for locomotives and 109 days for cars), were held to be within the terms of the act as amended in 1934 (48 Stat. 1185). "The activities in which these employees are engaged have such a relation to the other confessedly interstate activities of the * * * [carrier] that they are to be regarded as a part of them. All taken together fall within the power of Congress over interstate commerce." Virginian R. Co. _v._ System Federation No. 40, 300 U.S. 515, 556 (1937).

By the Adamson Act of 1916 a temporary increase in wages was imposed upon the railways of the country in order to meet a sudden threat to strike by important groups of their employees. The act was a.s.sailed on the dual ground that it was not a regulation of commerce among the States and that it was violative of the carriers' rights under the Fifth Amendment. A closely divided Court, speaking through Chief Justice White, answered both objections by pointing to the magnitude of the emergency which had threatened the country with commercial paralysis and grave loss and suffering. To the familiar argument that "emergency may not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief Justice answered that "it may afford a reason for exerting a power already enjoyed." A further answer to objections based on the rights of carriers under the Fifth Amendment, particularly the right of "freedom of contract," was that the situation met by the statute had arisen in consequence of a failure to exercise these rights--a far from satisfactory answer, as the dissent pointed out, since one element of a right is freedom of choice regarding its use or nonuse. Wilson _v._ New, 243 U.S. 332, 387 (1917).