ment is thus placed in the same category with a lottery or with an area in which cattle or persons are generally diseased, and the goods produced in the child-employing establishment are placed in the category of lottery tickets, diseased cattle, obscene printed matter, adulterated drugs, and the like. Therefore, while there may be no inherent differences between the goods manufactured in a place where children work and those made in a place where only adults work-and so no basis, short of arbitrary 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 establishment 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 general 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 volume to do more than refer by footnote to the cases in which were expressed his amplified views of an adequate Nationalism. In subsequent chapters, notably those dealing with pure food laws and the regulation of labour conditions, will be found excerpts from his opinions as to the scope of State and National power in relation to those topics. 'Port Richmond Ferry vs. Hudson County (234 U. 8. Reports, page 317); Sault Ste. Marie vs. International Transit Co. (234 U. 8. Reports, page 333); Anderson vs. Pacific Coast Ss. Co. (225 U. S. Reports, page 187); Wilmington Transp. Co. vs. California R. R. Commission (236 U. S. Reports, page 151); Adams Express Co. vs. New York (232 U. S. Reports, page 14); Philadelphia Co. vs. Stimson (223 U. 8. Reports, page 605); Chicago, etc., Ry. Co. vs. Iowa (233 U. S. Reports, page 334). CHAPTER III THE DOCTRINE OF REASONABLE RELATIONSHIP TO A PERMISSIBLE PURPOSE Ir 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 public purpose; he would inquire as to his rejection of the doctrine of "freedom of contract" and his willingness to follow through the full consequences 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 confiscatory 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 ascertainment of facts, action in the light of disclosed conditions, and emancipation alike from a mere 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 colleagues 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 history of the past decade or so has been the development and extending application of this concept as to the metes and bounds of regulative 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 government is called upon or entitled to dealand 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 permissible 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 the history and philosophy of the law, and between 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 Fourteenth Amendment requires the National judicial 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 regulative power, commonly referred to as the "police 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 employés, for example, but little, if anything, beyond that. The New York Court of Appeals said that1 Every man's right to life, liberty and property is to be disposed of in accordance with those ancient and fundamental principles which were in existence when our Constitutions were adopted. Ives vs. South Buffalo Ry. Co. (201 N. Y. Reports, page 271). On the other hand, the Supreme Court of the United States was giving to the "police power" a very broad and wholesome application, without laying down any very comprehensible standard 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 order, the life and health of the citizen, the comfort of existence in a thickly populated community, 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," and still later it was said, Justice Hughes concurring, that the "police power" may be put forth in aid of what is sanctioned 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 'Slaughter House Cases (16 Wallace's [U. S.] Reports, page 36). Camfield vs. U. S. (167 U. S. Reports, page 518). |