Part 15
Since the Chandler-Dunbar case the Court has come, in effect, to hold that it will sustain any act of Congress which purports to be for the improvement of navigation whatever other purposes it may also embody; nor does the stream involved have to be one which is "navigable in its natural state." Such, at least, seems to be the algebraic sum of its holdings in Arizona _v._ California,[362] decided in 1931, and in the United States _v._ Appalachian Electric Power Co.,[363] decided in 1940. In the former the Court, speaking through Justice Brandeis, said that it was not free to inquire into the motives "which induced members of Congress to enact the Boulder Canyon Project Act," adding: "As the river is navigable and the means which the Act provides are not unrelated to the control of navigation, * * *, the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. * * * And the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power."[364] And in the Appalachian Electric Power case, the Court, abandoning previous holdings which had laid down the doctrine that to be subject to Congress's power to regulate commerce a stream must be "navigable in fact," said: "A waterway, otherwise suitable for navigation, is not barred from that classification merely because artificial aids must make the highway suitable for use before commercial navigation may be undertaken," provided there must be a "balance between cost and need at a time when the improvement would be useful. * * * Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. * * * Nor is it necessary for navigability that the use should be continuous. * * * Even absence of use over long periods of years, because of changed conditions, * * * does not affect the navigability of rivers in the constitutional sense."[365]
Purposes for Which Power May be Exercised
Furthermore, the Court defined the purposes for which Congress may regulate navigation in the broadest terms, as follows: "It cannot properly be said that the constitutional power of the United States over its waters is limited to control for navigation. * * * That authority is as broad as the needs of commerce. * * * Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control."[366] These views the Court has since reiterated.[367] Nor is it by virtue of Congress's power over navigation alone that the National Government may develop super-power. Its war powers and power of expenditure in furtherance of the common defense and the general welfare supplement its powers over commerce in this respect.[368]
Congressional Regulation of Land Transportation
EARLY ACTS; FEDERAL PROVISION FOR HIGHWAYS
The acquisition and settlement of California stimulated Congress some years before the Civil War to authorize surveys of possible routes for railway lines to the Pacific; but it was not until 1862, in the midst of war, with its menace of a general dissolution of the Union, that more decisive action was taken. That year Congress voted aid in the construction of a line from Missouri River to the Pacific; and four years later it chartered the Union Pacific Company.[369] First and last, litigation growing out of this type of legislation has resulted in the establishment in judicial decision of the following propositions: _First_, that Congress may provide highways for interstate transportation (earlier, as well as today, this result might have followed from Congress's power of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the Court in this connection); _second_, that it may charter private corporations for the purpose of doing the same thing; _third_, that it may vest such corporations with the power of eminent domain in the States; and _fourth_, that it may exempt their franchises from State taxation.[370]
BEGINNINGS OF FEDERAL RAILWAY REGULATION
Congress began regulating the railroads of the country in a more positive sense in 1866. By the so-called Garfield Act of that year "every railroad company in the United States, whose road is operated by steam," was authorized by Congress "* * * to connect with roads of other States so as to form continuous lines for the transportation of passengers, freight, troops, governmental supplies, and mails, to their destination";[371] while by an act passed on July 24 of the same year it was ordered, "in the interest of commerce and the convenient transmission of intelligence * * * by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as State interference is concerned, be free to all who will submit to the conditions imposed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction, if they accept the terms proposed by the National Government for this national privilege."[372]
Another act of the same period provided that "no railroad company within the United States whose road forms any part of a line of road over which cattle, sheep, swine, or other animals are conveyed from one State to another, or the owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one State to another, shall confine the same in cars, boats, or vessels of any description, for a longer period than twenty-eight consecutive hours, without unloading the same for rest, water, and feeding, for a period of at least five consecutive hours, unless prevented from so unloading by storm or other accidental causes."[373]
REGULATION OF RAILROAD RATES: THE INTERSTATE COMMERCE COMMISSION
On account of the large element of "fixed charges" which enters into the setting of rates by railway companies, competition between lines for new business was from the first very sharp, and resulted in many evils which, in the early 70's, led in the Middle West to the enactment by the State legislatures of the so-called "Granger Laws"; and in the famous "Granger Cases," headed by Munn _v._ Illinois,[374] the Court at first sustained this legislation, in relation to both the commerce clause and the due process of law clause of Amendment XIV. The principal circumstance, however, which shaped the Court's attitude toward the "Granger Laws" had, by a decade later, disappeared, the fact, namely, that originally the railroad business was largely in local hands. In consequence, first, of the panic of 1873, and then of the panic of 1885, hundreds of these small lines went into bankruptcy, from which they emerged consolidated into great interstate systems. The result for the Court's interpretation of the commerce clause was determinative. In the case of Wabash, St. Louis and Pacific R. Co. _v._ Illinois,[375] decided in 1886, it was ruled that a State may not regulate charges for the carriage even within its own boundaries of goods brought from without the State or destined to points outside it; that in this respect Congress's power over interstate commerce was exclusive. The following year, Congress, responding to a widespread public demand, passed the original Interstate Commerce Act.[376]
By this measure a commission of five was created with authority to pass upon the "reasonableness" of all charges by railroads for the transportation of goods or persons in interstate commerce and to order the discontinuance of all such charges as it found to be "unreasonable," or otherwise violative of the provisions of the act. In Interstate Commerce Commission _v._ Brimson,[377] decided in 1894, the validity of the Commission as a means "necessary and proper" for the enforcement of Congress's power to regulate commerce among the States was sustained, as well as its right to enter the courts of the United States in order to secure process for the execution of its orders. Later decisions of the Court, however, including one in which the act was construed not to give the Commission power to set reasonable maximum rates in substitution for those found by it to be unreasonable, disappointed earlier expectations.[378]
The history of the Commission as an effective instrument of government dates from the Hepburn Act of 1906[379] which was followed four years later by the Mann-Elkins Act.[380] By the former the Commission was explicitly endowed with the power, after a full hearing on a complaint made to it, "to determine and prescribe just and reasonable" maximum rates. By the latter it was further authorized to set such rates on its own initiative, and without waiting for a complaint; while any increase of rates by a carrier was made subject to suspension by the Commission until its approval could be obtained. At the same time, the Commission's jurisdiction was extended to telegraphs, telephones and cables.[381]
THE INTERSTATE COMMERCE COMMISSION TODAY
The powers of the Commission, which has been gradually increased to a body of eleven, are today largely defined in the Transportation Act of February 28, 1920. By that act they were extended not only to all "railroads," comprehensively defined, but also to the following additional categories of "'common carriers' * * * all pipeline companies; telegraph, telephone, and cable companies operating by wire or wireless [_See_ note 3 above][Transcriber's Note: Refers to Article I, Footnote [381].]; express companies; sleeping-car companies; and all persons, natural or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire." The jurisdiction of the Commission covers not only the characteristic activities of such carriers in commerce among the States, but also the issuance of securities by them, and all consolidations of existing companies, or lines. Furthermore, for the first time, the Commission was put under the injunction, in exercising its control over rates and charges, to "give due consideration, among other things, to the transportation needs of the country and the necessity (under honest, efficient and economical management of existing transportation facilities) of enlarging such facilities in order to provide the people of the United States with adequate transportation."[382] Railway rate control itself, which was originally entered upon by the National Government exclusively from the point of view of restraint, has thus been assimilated to the idea of "fostering and promoting" transportation.
Two types of constitutional questions have presented themselves under the legislation just passed in review: 1. Those arising out of the safeguards which the Bill of Rights throws about property rights; 2. Those arising out of the intermingling of the interstate and intrastate operations of the same carriers, and the resulting tangency of State with national power. Only the latter are considered at this point.
THE SHREVEPORT CASE
Section 1 of the act of 1887 contains the proviso "that the provisions of this act shall not apply to 'transportation' wholly within the State." Section 3 of the act prohibits "any common carrier subject to the provisions" of the act from giving "any unreasonable preference or advantage" to any person, firm, or locality. In the Shreveport Case,[383] decided in 1914, the Commission, reading Sec. 3 independently of Sec. 1, had ordered several Texas lines to increase certain of their rates between points in Texas till they should approximate rates already approved by the Commission to adjoining points in Louisiana. The latter rates, being interstate, were admittedly subject to the Commission. The local rates were as clearly within the normal jurisdiction of the State, and had in fact been set by the Texas Railway Commission. The Court found that the Interstate Commerce Commission had not exceeded its statutory powers. The constitutional objection to the Commission's action was stated thus: "That Congress is impotent to control the intrastate charges of an interstate carrier even to the extent necessary to prevent injurious discrimination against interstate traffic." This objection the Court met, as follows: "Wherever the interstate and intrastate transactions of carriers are so related that the government of the 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 constitutional authority and the State, and not the Nation, would be supreme in the national field."[384] This, the Court continued, "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."[385]
THE ACT OF 1920 AND STATE RAILWAY RATE REGULATION
The power of the Commission under Sec. 3 of the act of 1887, as interpreted in the Shreveport Case, was greatly enlarged by Sec. 416 of the act of 1920, which authorizes the Commission to remove "any undue, unreasonable, or unjust discrimination against interstate or foreign commerce." Thus, commerce as a whole, instead of specific firms or localities, is made the beneficiary of the restriction. In the Wisconsin R.R. Comm. _v._ Chicago, B. & Q.R.R. Co.,[386] the Court held that this section sustained the Interstate Commerce Commission in annulling intrastate passenger rates which it found to be unduly low, in comparison with rates which the Commission had established for interstate travel, and so tending to thwart, in deference to a merely local interest, the general purpose of the act to maintain an efficient transport service for the benefit of the country at large.[387]
REGULATION OF OTHER AGENTS OF CARRIAGE AND COMMUNICATION
In the Pipe Line Cases, decided in 1914,[388] the Court affirmed the power of Congress to regulate the transportation of oil and gas in pipe lines from one State to another and held that this power applies to such transportation even though the oil (or gas) in question was the property of the owner of the lines.[389] Thirteen years later, in 1927, the Court ruled that an order by a State commission fixing rates on electric current generated within the State and sold to a distributor in another State was invalid as imposing a burden on interstate commerce, thus holding impliedly that Congress' power to regulate the transmission of electric current from one State to another carried with it the power to regulate the price of such electricity.[390] Proceeding on this implication Congress, in the Federal Power Act of 1935,[391] conferred upon the Federal Power Commission the power to govern the wholesale distribution of electricity in interstate commerce; and three years later vested in the same body like power over natural gas moving in interstate commerce.[392] In Federal Power Commission _v._ Natural Gas Pipeline Company,[393] the power of the Commission to set the prices at which gas, originating in one State and transported into another, should be sold to distributors wholesale in the latter State, was sustained by the Court in the following terms: "The argument that the provisions of the statute applied in this case are unconstitutional on their face is without merit. The sale of natural gas originating in the State and its transportation and delivery to distributors in any other State constitutes interstate commerce, which is subject to regulation by Congress. * * * It is no objection to the exercise of the power of Congress that it is attended by the same incidents which attend the exercise of the police power of a State. The authority of Congress to regulate the prices of commodities in interstate commerce is at least as great under the Fifth Amendment as is that of the States under the Fourteenth to regulate the prices of commodities in intrastate commerce."[394]
Other acts regulative of interstate commerce and communication which belong to this period are the Federal Communications Act of 1934, which regulates, through the Federal Communications Commission,[395] "interstate and foreign communication by wire and radio"; the Federal Motor Carrier Act of 1935, which, through the Interstate Commerce Commission, governs the transportation of persons and property by motor vehicle common carriers;[396] the Civil Aeronautics Act of 1938, enacted for the purpose of bringing under the control of a central agency, called "the Civil Aeronautics Authority" (functioning through the Civil Aeronautics Administrator and the Civil Aeronautics Board) all phases of airborne commerce, foreign and interstate.[397] None of these measures have provoked challenge to the power of Congress to enact them.
ACTS OF CONGRESS PROTECTIVE OF LABOR ENGAGED IN INTERSTATE TRANSPORTATION
In the course of the years 1903 to 1908 Congress enacted a series of such measures which were notable both on account of their immediate purpose and as marking the entry of the National Government into the field of labor legislation. The Safety Appliance Act of 1893,[398] which applied only to cars and locomotives engaged in moving interstate traffic, was amended in 1903 to embrace "all trains, locomotives, tenders, cars," etc., "used on any railway engaged in interstate commerce * * * and to all other locomotives * * * cars," etc., "used in connection therewith."[399] In Southern Railway Company _v._ United States,[400] the validity of this extension of the act was challenged. The Court sustained the measure as being within Congress's power, saying: "* * * this is so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulate interstate commerce is plenary and competently may be exerted to secure the safety of the persons and property transported therein and of those who are employed in such transportation, no matter what may be the source of the dangers which threaten it. That is to say, it is no objection to such an exertion of this power that the dangers intended to be avoided arise, in whole or in part, out of matters connected with intrastate commerce."[401]
Four years later the Hours of Service Act of 1907[402] was passed, requiring, as a safety measure, that carriers engaged in the transportation of passengers or property by railroad in interstate or foreign commerce should not work their employees for longer periods than those prescribed by the Act. In sustaining this legislation the Court, speaking through Justice Hughes, said: "The fundamental question here is whether a restriction upon the hours of labor of employes who are connected with the movement of trains in interstate transportation is comprehended within this sphere of authorized legislation. This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection of life and property necessarily depends. * * * In its power suitably to provide for the safety of the employes and travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act."[403]
But by far the most notable of these safety measures were the Federal Employers Liability Acts of 1906 and 1908,[404] the second of which merely reenacted the first with certain "unconstitutional" features eliminated. What the amended act does, in short, is to modify, in the case of injuries incurred by the employees of interstate carriers while engaged in interstate commerce, the defenses that had hitherto been available to the carriers at common law. The principal argument against the acts was that the commerce clause afforded no basis for an attempt to regulate the relation of master and servant, which had heretofore in all cases fallen to the reserved powers of the States; that indeed the rules of common law modified or abrogated by the act existed solely under State authority, and had always been enforced, in the main, in the courts of the States.[405] Countering this argument, the Court, speaking by Justice Van Devanter, quoted the following passage from the brief of the Solicitor-General: "Interstate commerce--if not always, at any rate when the commerce is transportation--is an act. Congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is interrupted; if the agents or instruments are not of the right kind or quality, commerce in consequence becomes slow or costly or unsafe or otherwise inefficient; and if the conditions under which the agents or instruments do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce or make it less expeditious, less reliable, less economical and less secure. Therefore, Congress may legislate about the agents and instruments of interstate commerce, and about the conditions under which those agents and instruments perform the work of interstate commerce, whenever such legislation bears, or in the exercise of a fair legislative discretion can be deemed to bear, upon the reliability or promptness or economy or security or utility of the interstate commerce act."[406]
The Adair Case
But while the idea expressed here that the human agents of commerce, in the sense of transportation, are instrumentalities of it, and so, in that capacity, within the protective power of Congress, signalized the entrance of Congress into the field of labor legislation, the Court was not at the time prepared to give the idea any considerable scope. Pertinent in this connection is the case of Adair _v._ United States,[407] which was decided between the two Employers' Liability Cases. Here was involved the validity of Sec. 10 of the "Erdman Act" of 1898,[408] by which it was made a misdemeanor for a carrier or agent thereof to require of an employee, as a condition of employment, that he should not become or remain a member of a trade union, or to threaten him with loss of employment if he should become or remain a member. This proviso the Court held not to be a regulation of commerce, there being no connection between an employee's membership in a labor organization and the carrying on of interstate commerce. Twenty-two years later, however, in 1930, the Court conceded that the connection between interstate commerce and union membership was a real and substantial one, and on that ground sustained the power of Congress in the Railway Labor Act of 1926[409] to prevent employers from interfering with the right of employees to select freely their own collective bargaining representatives.[410]
The Railroad Retirement Act