wages. That hours of service may be limited is shown ante. He says also that "so far as the pending appeal is concerned, it is of not much importance whether the act be held on hours of service law or a wage regulating law," because to a carrier a wage law is but an item in its accounts the expense to be recompensed through its rates." He, therefore, joins with the other four in upholding the law whatever it may mean, because Congress does the carrier no wrong, if it only requires it to pay out what it may recoup itself for. The final analysis of this is to say that the only unconstitutional regulation that might be imposed on a railroad in interstate commerce is to cut down its rates so that it would not be able to earn a fair compensation for the use of its property. If such reasoning would apply to an interstate railroad, why would it not apply to any public service company operating under state regulation?

The opinion by the Chief Justice says: "Only an eight-hour standard for work and wages is the contention on one side, and, in substance, only a scale of wages was provided, is the argument on the other. We are of the opinion that both are right and in a sense both are wrong, insofar as it is assumed that the one excludes the other." This means, it would seem that Congress did prescribe a standard day which the railroads had to observe, whether the scale of wages for a standard day could be changed or not. It presently, at least, was thought to fix the wage for that standard day. The special concurring opinion did not agree to this further than it said it was of no importance if this were so, because the railroad could be "recompensed

54 Sec. 163.

through its rates," meaning, supposedly, an increase in its rates, if necessary.

§ 164. Compulsory Arbitration.-But the Chief Justice further deduces and three of the dissentients agree with him, that the ruling that Congress may fix a standard day for work of its employees, logically means it may enforce compulsory arbitration in labor disputes. Rather it seems, that the Chief Justice mainly predicates the right of Congress to fix a standard day upon the existence of a situation of threatening danger to interstate commerce. He said, after showing what this situation was, that the enactment of the statute by Congress "amounted to an exertion of its authority under the circumstances disclosed to compulsory arbitrate the dispute between the parties by establishing as to the subject matter of that dispute a legislative standard of wages operative and binding as a matter of law upon the parties."

This might mean, as Justice McKenna in his specially concurring opinion, says, that the railroads. could be compelled to agree to a standard day, but not that employees could be. And the Chief Justice also says: "There is no question here of purely private right, since the law is concerned only with those who are engaged in a business charged with a public interest . . . which comes under the control of the right to regulate," etc. This seems to mean only proprietors of railroads.

In conclusion, it seems to be that Congress may resort to any means to avert a reasonably apprehended danger to interstate commerce, so far as crippling instrumentalities engaged therein are concerned. It may not coerce an employee to accept any standard day or

wage it may impose on the owner of such an instrumentality, and if employees demand a standard day or maximum wage, it is within their rights to so demand. It would not be going, however to an unprecedented length for Congress to declare that employees, while singly having the right to work or refuse to work under such a standard day or for a legally established maximum wage, they could be proceeded against for conspiring to leave or to refuse to go into, its employ. This could be deemed a revolution to prevent the enforcement of law.

Whether a state may prescribe a standard day for work or a maximum wage for owners of public service companies, either directly by legislative act or through a commission, may depend upon other principles. It has relatively the same right to protect its industries that Congress has to protect interstate commerce, and conditions threatening injury or reasonably calling for exertion of police power might justify such legislation. Just as a business in interstate commerce is "charged with a public interest" so is that devoted to a public purpose.

As bearing somewhat upon the ruling in the Wilson case is a decision since rendered by the Supreme Court, dissented from by the Chief Justice and Associate Justices Van Devanter and McReynolds,55 in which Justice McKenna wrote the opinion. There the question was as to regulation of the hours of service in industrial employments not necessarily of a public character. The statute required that no employee should work more than ten hours in any one day. This was upheld as a regulation under police power.

55 Bunting v. Oregon, 243 U. S. 426, 37 Sup. Ct. 435, 61 L. Ed. —.

167.

168.

Railroad commissions.

Commissions for gas and electric company. 169. Commission regulating water companies. 170. Commissions for various utilities.

§ 165. Preliminary. In the development thus far of this work particular regard has been given to the basic law underlying the right of the state to treat private property affected with a public use differently from other property. In America the title to property rests on constitutional guaranty, as we have seen. But the act of associating its use with that in which the public has rights is a voluntary act. It draws after it consequences foreshadowed on the common law principles, which are of the very warp and woof of our jurisprudence. In addition our police power attaches, as we have also seen. The above applies to the submission we render to the states, each as an independent sovereignty, as was England, whence our common law is derived. This is a vast body of our law, entering intimately into all affairs, not only as establishing precedents, but as moulding the very conscience of our system of justice. It supplies what statutes by attempting particularization omits. These are informed by our common law.

Apart, however, from our relation-each to his state-there is another relation to the government formed by the union of states. Where this takes hold, therein it is exclusive as the supreme law of the land.1 The particular feature of that supreme law treated hereinbefore is that arising under the Commerce Clause of our Federal Constitution. Instances in the application of the principles arising out of dedication of private property to public use or of that use taking on the character of a public employment and of employment of that property coming within reach of the commerce clause having been given, now there is to be considered the means whereby necessary regulation or control is consistently administered, that is to say by subordinate tribunals invested with delegated power.

$166. Origin of Commissions for Regulation.None of the "Granger cases" decided in 1876 refers to commissions in the regulation of railroads, but only to state statutes regarding maximum rates, all of which were held constitutional. These cases gave such impetus to the movement for regulation, that within a few years thereafter the commission idea took shape.

One among the first states to create a commission was Tennessee in 1883-"an act to provide for the reguation of railroad companies and to appoint a railroad commission." This act was denied enforcement in 1884 by the Circuit Court of Tennessee1 for

1 Hall v. DeCuir, 95 U. S. 485, 24 L. Ed. 547.

2 Munn v. Illinois, 94 U. S. 113, 34 L. Ed. 77; Chicago B. & Q. R. Co., 94 U. S. 164, 24 L. Ed. 97; Winona & S. P. R. Co. v. Blake, 94 U. S. 180, 24 L. Ed. 99.

3 Tennessee Laws 1883, Ch. CXCIX.

4 Louisville & N. R. Co. v. Railroad Comm. of Tenn., 19 Fed. 679.