The Constitution of the United States of America: Analysis and Interpretation Part 192

[166] Ibid. 94. Justice Frankfurter, concurring, declared that "the insistence by individuals on their private prejudices * * *, in relations like those now before us, ought not to have a higher const.i.tutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Const.i.tution itself exacts." Ibid. 98.

[167] 335 U.S. 525 (1949).

[168] 335 U.S. 538 (1949).

[169] 335 U.S. 525, 534, 537. In a lengthy opinion, in which he registered his concurrence with both decisions, Justice Frankfurter set forth extensive statistical data calculated to prove that labor unions not only were possessed of considerable economic power but by virtue of such power were no longer dependent on the closed shop for survival. He would therefore leave to the legislatures the determination "whether it is preferable in the public interest that trade unions should be subjected to State intervention or left to the free play of social forces, whether experience has disclosed 'union unfair labor practices,'

and, if so, whether legislative correction is more appropriate than self-discipline and pressure of public opinion--* * *." 335 U.S. 538, 549-550.

[170] 336 U.S. 245 (1949).

[171] Ibid. 253.

[172] 336 U.S. 490 (1949). Other recent cases regulating picketing are treated under Amendment I, _see_ p. 781.

[173] 94 U.S. 113 (1877).

[174] Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418 (1890).

[175] Wolff Packing Co. _v._ Court of Industrial Relations, 262 U.S.

522, 535-536 (1923).

[176] Munn _v._ Illinois, 94 U.S. 113 (1877); Budd _v._ New York, 143 U.S. 517, 546 (1802); Bra.s.s _v._ North Dakota ex rel. Stoeser, 153 U.S.

391 (1894).

[177] Cotting _v._ G.o.dard, 183 U.S. 79 (1901).

[178] Townsend _v._ Yeomans, 301 U.S. 441 (1937).

[179] German Alliance Ins. Co. _v._ Lewis, 233 U.S. 389 (1914); Aetna Ins. Co. _v._ Hyde, 275 U.S. 440 (1928).

[180] O'Gorman & Young _v._ Hartford F. Ins. Co., 282 U.S. 251 (1931).

[181] Williams _v._ Standard Oil Co., 278 U.S. 235 (1929).

[182] Tyson & Bros.--United Theatre Ticket Offices _v._ Banton, 273 U.S.

418 (1927).

[183] New State Ice Co. _v._ Liebmann, 285 U.S. 262 (1932).

[184] Nebbia _v._ New York, 291 U.S. 502, 531-532, 535-537, 539 (1934).

In reaching this conclusion the Court might be said to have elevated to the status of prevailing doctrine the views advanced in previous decisions by dissenting Justices. Thus, Justice Stone, dissenting in Ribnik _v._ McBride, 277 U.S. 350, 350-360 (1928) had declared: "Price regulation is within the State's power whenever any combination of circ.u.mstances seriously curtails the regulative force of compet.i.tion so that buyers or sellers are placed at such a disadvantage in the bargaining struggle that a legislature might reasonably antic.i.p.ate serious consequences to the community as a whole." In his dissenting opinion in New State Ice Co. _v._ Liebmann, 285 U.S. 202, 302-303 (1932), Justice Brandeis had also observed that: "The notion of a distinct category of business 'affected with a public interest'

employing property 'devoted to a public use' rests upon historical error. In my opinion the true principle is that the State's power extends to every regulation of any business reasonably required and appropriate for the public protection. I find in the due process clause no other limitation upon the character or the scope of regulation permissible."

[185] Justice McReynolds, speaking for the dissenting Justices, labelled the controls imposed by the challenged statute as a "fanciful scheme to protect the farmer against undue exactions by prescribing the price at which milk disposed of by him at will may be resold." Intimating that the New York statute was as efficacious as a safety regulation which required "householders to pour oil on their roofs as a means of curbing the spread of a neighborhood fire," Justice McReynolds insisted that "this Court must have regard to the wisdom of the enactment," and must determine "whether the means proposed have reasonable relation to something within legislative power."--291 U.S. 502, 556, 558 (1934).

[186] 313 U.S. 236, 246 (1941).

[187] 277 U.S. 350 (1928).

[188] 94 U.S. 113 (1877). _See also_ Peik _v._ Chicago & N.W.R. Co., 94 U.S. 164 (1877).

[189] Rate-making is deemed to be one species of price fixing. Power Comm'n _v._ Pipeline Co., 315 U.S. 575, 603 (1942).

[190] Nebbia _v._ New York, 291 U.S. 502 (1934).

[191] 96 U.S. 97 (1878). _See also_ Chicago, B. & Q.R. Co. _v._ Chicago, 166 U.S. 226 (1897).

[192] 116 U.S. 307 (1886).

[193] Dow _v._ Beidelman, 125 U.S. 680 (1888).

[194] 134 U.S. 418, 458 (1890).

[195] 143 U.S. 517 (1892).

[196] 154 U.S. 362, 397 (1894).

[197] Ibid 397. Insofar as judicial intervention resulting in the invalidation of legislatively imposed rates has involved carriers, it should be noted that the successful complainant invariably has been the carrier, not the s.h.i.+pper.

[198] 169 U.S. 466 (1898).--Of course the validity of rates prescribed by a State for services wholly within its limits, must be determined wholly without reference to the interstate business done by a public utility. Domestic business should not be made to bear the losses on interstate business, and vice versa. Thus a State has no power to require the hauling of logs at a loss or at rates that are unreasonable, even if a railroad receives adequate revenues from the intrastate long haul and the interstate lumber haul taken together. On the other hand, in determining whether intrastate pa.s.senger railway rates are confiscatory, all parts of the system within the State (including sleeping, parlor, and dining cars) should be embraced in the computation; and the unremunerative parts should not be excluded because built primarily for interstate traffic or not required to supply local transportation needs.--_See:_ Minnesota Rate Cases (Simpson _v._ Shepard), 230 U.S. 352, 434-435 (1913); Chicago, M. & St. P.R. Co. _v._ Public Utilities Commission, 274 U.S. 344 (1927); Groesbeck _v._ Duluth, S.S. & A.R. Co., 250 U.S. 607 (1919). The maxim that a legislature cannot delegate legislative power is qualified to permit creation of administrative boards to apply to the myriad details of rate schedules the regulatory police power of the State. To prevent the conferring upon an administrative agency of authority to fix rates for public service from being a mere delegation of legislative power, and therefore void, the legislature must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its functions, with which the agency must substantially comply to validate its action.

Wichita Railroad & L. Co. _v._ Public Utilities Commission, 260 U.S. 48 (1922).

[199] Reagan _v._ Farmers' Loan & Trust Company, 154 U.S. 362, 397 (1894).

[200] Interstate Commerce Commission _v._ Illinois C.R. Co., 215 U.S.

452, 470 (1910).

[201] 231 U.S. 298, 310-313 (1913).

[202] Des Moines Gas Co. _v._ Des Moines, 238 U.S. 153 (1915).

[203] Minnesota Rate Cases (Simpson _v._ Shepard), 230 U.S. 352, 452 (1913).

[204] Knoxville _v._ Water Company, 212 U.S. 1 (1909).

[205] Smith _v._ Illinois Bell Teleph. Co., 270 U.S. 587 (1926).

[206] Willc.o.x _v._ Consolidated Gas Co., 212 U.S. 19 (1909).

[207] 174 U.S. 739, 750, 754 (1899). _See also_ Minnesota Rate Cases (Simpson _v._ Shepard), 230 U.S. 352, 433 (1913).

[208] San Diego Land & Town Co. _v._ Jasper, 189 U.S. 439, 441, 442 (1903). _See also_ Van d.y.k.e _v._ Geary, 244 U.S. 39 (1917); Georgia Ry.

_v._ R.R. Comm., 262 U.S. 625, 634 (1923).

[209] For its current position, _see_ Crowell _v._ Benson, 285 U.S. 22 (1932).

[210] 222 U.S. 541, 547-548 (1912). _See also_ Interstate Comm. Comm.

_v._ Illinois C.R., 215 U.S. 452, 470 (1910).