The resort to this arbitral board may be had only with the consent of both employer and employees.

Though still upon the statute book no use of its arbitral provisions has yet been made. Inasmuch as personal service may not be enforced the provision that employees may not, during a period of three months after arbitration, quit their employment without giving thirty days' notice, is, of course, without value. It is possible also that the courts will find a constitutional objection to extending their aid to the arbitrators for the compelling of testimony or the production of papers.

19

The aim of Section 10 is to prevent the blacklisting of employees, to make unlawful the requirement by the employer of an agreement on the part of his employees to release him from liability for injuries, and in general to protect the labor organizations. The constitutionality of this section was denied in several cases in the lower federal courts,20 and, finally, the same position was assumed by the Supreme Court in Adair v. United States,21 decided in 1908.

In this case Adair, an agent of a railway company engaged in interstate commerce, was charged with having, in violation of the tenth section of the Act of 1898, dismissed from the service of the company an employee because of his membership in a labor organization. Adair set up the unconstitutionality of this section on the double ground that it was a violation of the Fifth Amendment, being a deprivation of liberty without due process of law; and that is was not justified by the Commerce Clause, and, therefore, void as relating to matters, the regulation of which is reserved exclusively to the States. Both of these contentions were held

19 See opinion of Justice Field in Pacific Railway Commission Case, 32 Fed. Rep. 241. But see also Interstate Commerce Com. v. Brimson, 154 U. S. 447; 14 Sup. Ct. Rep. 1125; 38 L. ed. 1047.

20 United States v. Scott, 148 Fed. Rep. 431; R. R. Telegraphers v. Louisville & N. Ry. Co., 148 Fed. Rep. 437, the court in the first case declaring that "Section 10 of the act of June 1, 1898, is not, in a constitutional sense, a regulation of commerce, or of commercial intercourse among the States, and cannot justly or fairly be so construed or treated, inasmuch as its essential object manifestly is only to regulate certain phases of the right of an employer to choose his own servants, whether the duties of those servants when employed relate to interstate commerce or not."

21 208 U. S. 161; 28 Sup. Ct. Rep. 277;; 52 L. ed. 436.

sound by the Supreme Court. As to the latter of these points, the opinion denies that there is any "possible legal or logical connection" between an employee's membership in a labor organization and the carrying on of interstate commerce. It cannot be assumed, the court assert, that the fitness or diligence of the employee is in any wise determined by such membership. As to the constitutionality of the provisions of the act with reference to arbitration no opinion is expressed.22

§ 354. Regulation of Interstate Railroad Rates.

The regulation of railway rates may be directed either to the prevention of discriminatory treatment as between places or shippers, or to the prevention of unreasonably high charges for service. As to this latter, the government may limit its intervention to declaring invalid, if excessive, rates fixed by the companies, or it may itself undertake to declare, and compel the acceptance by the railway companies of, rates which are considered reasonable and just.

That with respect to interstate transportation the Federal Government may exercise any or all of these powers of rate regulation would seem to be beyond serious question. The constitutional power of Congress itself, or through a commission as its agent, to fix the interstate commerce rates that shall be charged (subject to a judicial review as to whether they are so excessive as to be confiscatory and, therefore, in violation of the Fifth Amendment) has not been passed upon by the Supreme Court, but, it being conceded that the Federal Government has as plenary a control over interstate commerce as have the States over interstate commerce, the long line of decisions upholding the rate fixing power of the States with reference to their domestic traffic will, at the least, be very persuasive when the Supreme Court is called upon to determine the rate-making powers of the federal legislature.23

22 Justices McKenna and Holmes filed dissenting opinions.

23 But see, contra, speeches of Senator Foraker delivered in the United States Senate Dec. 11, 1905, and Feb. 28 and Apr. 12, 1906. Senator Foraker's argument that the power of the States to fix rates, being based on the control

§ 355. The Right of Congress to Delegate its Rate-Making Power to a Commission.

That a legislature may delegate to a commission as its agent the application to specific cases of a rule legislatively declared, is established.24 There would thus seem to be no constitutional difficulty in Congress laying down certain principles of railway rate regulation, and intrusting to a commission or other administrative body the task of determining the rates which conform to these requirements. If, therefore, it be desired that interstate railway rates shall be fixed by federal authority, it is clear that it is not necessary that Congress should itself determine each specific rate. Congress must, however, lay down the rule or rules by which the body to which this function is delegated shall be guided.25

By the act of June 29, 1906, it is declared by Congress that charges for interstate transportation of passengers as property shall be just and reasonable;" and to the Interstate Commerce Commission is given the authority, after having decided that a rate in force is not a proper one, "to determine and prescribe what will be the just and reasonable rate or rates, charge or charges to be thereafter observed in such case as the maximum to be charged." Thus the only rule for determining the rates which Congress has declared for the guidance of the Commission in the fixing of specific rates is that they shall be just and reasonable. The determination of when these very general requirements are met by a rate is left in each case, to the judgment of the Commission. It is certainly open to question whether Congress has not in fact really delegated to the Commission the legislative which they have over corporations chartered by them or permitted to do business within their borders, furnishes no argument to sustain the federal rate-making power except as to corporations chartered by the United States, is without force, for the States in fact are recognized to derive their ratemaking power not solely from this source but from the common-law principle that all public services are subject to governmental regulation, as regards the reasonableness of their charges, etc.

24 See Chapter LXV.

25 Cf. Reeder, Rate Regulation as Affected by the Distribution of Governmental Power in the Constitution. See also post, Chapter LXIII.

function of fixing rates according to its own judgment and not according to principles legislatively determined. If this has been done, this provision of the law will be held void.

The constitutional principles involved in the power of the courts to review decisions of the Interstate Commerce Commission is considered in the chapter entitled "The Conclusiveness of Administrative Decisions," and also in connection with Due Process of Law.

§ 356. The Federal Anti-Trust Act.26

By the Interstate Commerce Act of 1887 interstate railroads are forbidden to form combinations or "pools" for the maintenance of rates, whether for freight or passenger traffic. By the act of July 2, 1890, entitled "An Act to Protect Commerce Against Unlawful Restraints and Monopolies," a general prohibition is laid upon every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several States, or with foreign nations." In United States v. Trans-Missouri Freight Association" the railroads are held to be included within this general prohibition.

แ

Based upon alleged violations of this act of 1890 a series of suits have been brought and have received final adjudication by the Supreme Court. For the decision of these cases the court has found it necessary to consider more carefully than in any other set of cases the question what constitutes interstate commerce, and what, therefore, are the limits of the federal regulative power under the Commerce Clause. Thus, though it cannot be said that these cases have necessitated the enunciation of constitutional doctrines not elsewhere stated, or already considered in this treatise, they have resulted in specific adjudications which serve to set in the clearest light the extent and limits of the federal commercial power. For this reason it is advisable to consider these cases seriatim.

26 In this section only those portions of the act, and those judicial decisions arising thereunder, are considered which have given rise to constitutional questions.

27 166 U. S. 290; 17 Sup. Ct. Rep. 540; 41 L. ed. 1007.

§ 357. In Re Greene.

In Re Greene,28 a case involving the status of the Distilling and Cattle Feeding Company, which controlled 95 per cent. of distilled liquors in the United States, the court held that the mere magnitude of an interstate business did not bring it within the prohibition of the Anti-Trust Act.2

28 52 Fed. Rep. 104.

29

29"It is very certain that Congress could not, and did not, by this enactment, attempt to prescribe limits to the acquisition, either by the private citizen or state corporation, of property which might become the subject of interstate commerce, or declare that when the accumulation or control of property by legitimate means and lawful methods reached such magnitude or proportions as enabled the owner or owners to control the traffic therein, or any part thereof, among the States, a criminal offense was committed by such owner or owners. All persons, individually or in corporate organizations, carrying on business avocations and enterprises involving the purchase, sale or exchange of articles, or the production and manufacture of commodities which form the subjects of commerce will, in a popular sense, monopolize' both state and interstate traffic in such articles or commodities just in proportion as the owner's business is increased, enlarged, and developed. But the magnitude of a party's business production, or manufacture, with the incidental and indirect powers thereby acquired and with the purpose of regulating prices and controlling interstate traffic in the articles or commodities forming the subject of such business, production or manufacture, is not the monopoly' or attempt to monopolize,' which the statute condemns." And later: "Congress certainly has not the power or authority under the Commerce Clause, or any other provision of the Constitution to limit and restrict the right of corporations created by the States or the citizens of the States, in the acquisition, control and disposition of property. Neither can Congress regulate the price or prices at which such property or the products thereof, shall be sold by the owner or owners, whether corporations or individuals."

"The Supreme Court of the United States has not defined what a monopoly under this section of the Anti-Trust Law is. I conceive that it is not sufficiently defined by saying that it is the combination of a large part of the plants in the country engaged in the manufacture of a particular product in one corporation. There must be something more than the mere union of capital and plant before the law is violated. There must be some use by the company of the comparatively great size of its capital and plant and extent of its output, either to coerce persons to buy of it rather than of some competitor, or to coerce those who would compete with it to give up their business. There must, in other words, be an element of duress in the conduct of its business toward the customers of the trade and its competitors before mere aggregation of plant becomes an unlawful monopoly." Speech by W. H. Taft, Aug. 19, 1907, at Columbus, Ohio.