Central Law Journal St. Louis, February 20, 1923 CONSTITUTIONAL LAW-FEDERAL LABOR BOARD PENNSYLVANIA R. CO. v. UNITED STATES RAILROAD LABOR BOARD 282 Fed. 693. The decision in this case printed in the Central Law Journal for December 22, 1922, is one of great importance. Most of the conclusions of the Court in this case seem to us sound, but there is one which will we hope be overruled. This is that the decision of the Labor Board is "only advisory." This seems to be in direct opposition to the positive language of Section 301 of the Transportation Act. The last sentence of this provides "if any dispute is not decided in such conference it shall be referred by the parties thereto to the board which under the provisions of this title is authorized to hear and decide such dispute." The language of 307 is similar. Clause (a) begins: "The Labor Board shall hear, and as soon as practicable and with due diligence decide, any dispute involving grievances, rules or working conditions" which the Adjustment Board has failed to decide. The section also provides that if the Adjustment Board is not organized "the Labor Board (1) upon the application of the chief executive of any carrier or organization of employees or subordinate officials whose members are directly interested in the dispute, (2) upon a written petition signed by not less than 100. unorganized employees or subordinate officials directly interested in the dispute, or (3) upon the Labor Board's own motion if it is of the opinion that the dispute is likely substantially to interrupt commerce, shall receive for hearing, and as soon as ́practicable and with due diligence decide, any dispute involving grievances, rules or working conditions which is not decided as provided in Section 301 and which such Adjustment Board would be required to receive for hearing and decision under the provisions of Section 303." Are there any words in legal vocabulary which have a more established meaning than those used in the sections quoted? "To hear and to decide." These are the words used in conferring jurisdiction upon courts of justice. It might as well be said that the judgment of a court is only advisory. The reason given by the Court in the case under consideration is "there is no provision for the enforcement of the terms of the decisions." But is this a reason? Can it be expected that the act should state the ordinary jurisdiction of Courts of Justice. One branch of this jurisdiction is to enforce by appropriate civil proceedings the decisions of the various tribunals created by law. When violation is threatened these the courts enforce by injunction. In the case of the United States v. Railway Employees (283 Fed. 479, 95 Central Law Journal, 351, Nov. 17, 1922), the District Court for the Northern District of Illinois by injunction restrained railway employees from interfering with interstate commerce. This in effect enforced the decision of the Labor Board. The Transportation Act is so recent that we cannot expect to find numerous judicial decisions upon the effect of the decision of the Tribunal created by that act. But we do find numerous decisions under the Interstate Commerce Act and under other acts creating tribunals for specific purposes. To these the Court in the case under consideration does not refer, but they seem to be controlling. The Interstate Commerce Act, Section 12, gives the Commission "authority to inquire into the management of the business of all common carriers subject to the provisions of this Act." Full power to obtain evidence including the production of books 66 and papers from any place of the United States" is given to the Commission. Depositions may be taken here or in foreign countries. A full hearing is thus insured and is had. This statute is a valid exercise of the constitutional power to regulate commerce between the States and gives the Commission. full authority to deal with all the matters committed to it by the Act. (Interstate Commerce Commission v. Brimson, 154 U. S. 447; Texas & Pacific R. R. v. I. C. C., 162 U. S. 197.) The general rule on the subject of the effect of the findings of such a commission is well stated by Mr. Justice Baldwin in in Holmes v. Jennison, 14 Peters, 540 (Appendix at p. 628). "The universal rule that where power is given to any tribunal to be exercised at its discretion, whether it is legislative, executive, judicial or special, the decision of such tribunal is revisable only by some other tribunal, to which a supervisory power is given." The form in which the decision is pronounced "does not affect the nature or character of the decision." The same rule is thus stated in 23 Cyc. 1062. "The rule against collateral impeachment of judicial decisions applies to the determinations of State and County officers or boards of officers, who, although not constituting a court, are called upon to act. judicially in matters of administration." Findings of fact by the Interstate Commerce Commission are binding upon the courts unless shown to be clearly against evidence. (Illinois Central R. R. v. Interstate Comm. Comm., 206 U. S. 441; Cincinnati, etc., R. R. v. The Same, 206 U. S. 142; Louisville & Nashville R. R. v. Behlmer, 175 U. S. 648; The Same v. Interstate Commerce Commission, 184 Fed. 118; Darnell-Taenzer Lumber Co. v. Southern Pacific Ry. Co., 221 Fed. 890; Certiorari Denied, 238 U. S. 629; U. S. v. Louisville & Nashville R. R., 235 U. S. 314, 320.) We may add (Abilene Cotton Oil Company case, 204 U. S. 426) under Section 16 of the Interstate Commerce Act (Barnes Federal Code, Section 7905), provision is made for bringing suit upon an order made by the Commission for the payment of money to a complainant. This section modified the common law rule in such cases and makes the findings and order of the Commission only prima facie evidence of the facts therein stated. Under this section it is held that in a suit upon the order the report is sufficient evidence and sustains a judgment without the introduction of further testimony. (Meeker v. Lehigh Valley R. R., 236 U. S. 412, 434; Cincinnati, etc., Co. v. I. C. C., 206 U. S. 142; Haddad v. S. P. Co., 185 App. Div. (N. Y.), 500; B. & M. R. R. v. Hooker, 233 U. S. 97.) To use the language of Francis B. James in introduction to Clark on Interstate Com merce: "A new jurisprudence has grown up in America in which right and justice have been sanely, quickly and cheaply meted out through modern administrative tribunals.” It is certainly "a lame and impotent conclusion" that the decision (so described by the act itself) of a Tribunal created by an act of Congress, the members of which are appointed as judges are, "by the President, by and with the advice and consent of the Senate" and having full power to compel the attendance of witnesses and their testimony and the production of books and papers, and the like, should be advisory only. Sections 310 and 311 of the Act give to the Labor Board all the powers of a Court of Justice for the ascertainment of the facts. Section 309 provides: "Any party to any dispute to be considered by an adjustment board or by a Labor Boar shall be entitled to a hearing either i person or by counsel." When parties hav been heard by counsel, have produced a their evidence and the decision has bee had by a tribunal composed of nine men REGULATION OF INSURANCE COMPANIES.-The Supreme Court of the United States, in National Union Fire Ins. Co. v. Wanberg, 43 Sup. Ct. 32, holds that a state may regulate the conduct by corporations of insurance as a business affected with a public interest, and that different conditions may be imposed foreign companies than on domestic. The Court upholds the validity of a statute of North Dakota providing that hail insurance shall take effect 24 hours after the application is taken by the authorized local agent, and that, if the company declines to write the insurance, it shall notify the applicant and the agent by telegram. This, the Court held, does not substitute mandatory obligation for freedom of contract, or deny the equal protection of the laws, and is not so arbitrary or unreasonable as to deprive those whom it affects of their property or liberty without due process of law, as in effect it forbids companies to engage in such business, unless they so extend the scope of authority of their local agents, or so speed communication between them and their authorized representatives, as to enable an applicant to know promptly whether he is protected, especially as the statute has been in force for some years, and has apparently not driven companies out of the business. We quote at considerable length from the Court's opinion: "The decision of this Court in German Alliance v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189, settled the right of a state Legislature to regulate the conduct by corporations, domestic and foreign, of insurance as a business af fected with a public interest. This includes provision for 'unearned premium fund or reserve, the limitation of dividends, the publishing of accounts, valued policies, standards of policies, prescribing investment, re quiring deposits in money or bonds, confining the business to corporations, limitation of risks, and other regulations equally restrictive." 233 U. S. 412, 34 Sup. Ct. 619, 58 L. It includes Ed. 1011, L. R. A. 1915C, 1189. moreover the restrictions of defense to recovery on policies and the forbidding of stipulations to evade such restrictions. Orient Insurance Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552; Whitfieid v. Aetna Life Insurance Co., 205 U. S. 489, 27 Sup. Ct. 578, 51 L. Ed. 895. But it is said the line of possible and valid regulation has here been passed by affirmatively imposing a contract on an insurance company before it has had a chance to consider the circumstances and decide that it wishes to make it; indeed, that it declares that to be an agreement with heavy obligation which is in fact no agreement at all. Thus it is argued that by this statute mandatory obligation is substituted for freedom of contract which is just that against which the Fourteenth Amendment was intended to secure persons. We agree that this legislation approaches closely the limit of legislative power, but not that it transcends it. The statute treats the business of hail insurance as affected with a public interest. In that country, where a farmer's whole crop, the work and product of a year, may be wiped out in a few minutes and where the recurrence of such manifestations of nature is not infrequent, and no care can provide against their destructive character, it is of much public moment that agencies like insurance companies to distribute the loss over the entire community should be regulated so as to be effective for the purpose. The danger and loss to be mitigated are possible for a short period. The storms are usually fitful, and may cover a comparatively small territory at a time, so that of two neighbors, one may have a total loss, and the other may escape altogether. The risk justifies a high rate of insurance. It differs so much in these and other respects from other insurance that it may properly call for special legislative treatment. statutes apply to all companies engaged in such insurance. There is no discrimination, and no denial of the equal protection of the laws. The fact that the time requirements of the statute may bear more heavily on foreign companies whose principal offices may be far removed than upon those whose headquarters are within the state is a circumstance necessarily incident to their conduct of business in another state of which they The cannot complain. They cannot expect the laws of the state to be bent to accommodate them as a matter of strict legal right, however wise it may be for Legislatures to give weight to such a consideration in securing the use of their capital for their people. Moreover, as the business of such insurance companies is purely intrastate (New York Life Insurance Co. v. Deer Lodge County, 231 U. S. 495, 34 Sup. Ct. 167, 58 L. Ed. 332), the state has power to require them to accept conditions different from those imposed on domestic corporations (Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357; Hooper v. California, 155 U. S. 648, 15 Sup. Ct. 207, 39 L. Ed. 297, and cases cited), though this is not, of course, unlimited." EMPLOYEE REMOVING SCRAP FROM INTERSTATE TRACKS, AND CUTTING GRASS ON OR NEAR TRACKS, AS ENGAGED IN INTERSTATE COMMERCE.-In Quirk v. Erie R. Co, 196 N. Y. Supp. 580, the Supreme Court of New York, Appellate Division, holds that a railroad employee removing scrap from tracks used by interstate trains is engaged in interstate commerce, while in cutting grass on or near interstate tracks he is not engaged in interstate comerce. In part the Court said: "The sole question in the case is as to whether the claimant was engaged in interstate commerce at the time of his injury. The test is the nature of the work done at the time of injury. Was the work that was being done by the claimant interstate in its character, or so closely connected therewith as to be a part of it? Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L Ed. 1125, Ann. Cas. 1914C, 153. Shanks v. Delaware, L. & W. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 136, L. R. A. 1916C, 797; New York Cent & H. R. R. Co. v. Carr, 238 U. S. 261, 35 Sup. Ct. 780, 59 L. Ed. 1298. So far as the claimant's work related to the prevention of the ac cumulation of ashes, cinders, coal, and scrap on the main track or the switch track, or so near to either as to endanger the safety of the operation of trains, or of those employed in such operation thereon, the character of the claimant's employment was so closely connected with interstate commerce as to be a part of it. To that extent his duties were interstate in character. So far as his duties related to the cutting of grass and weeds and the removal of the same, there is no testimony tending to indicate that such duties had any relation to the safety or the efficiency of the operation of trains, or had any relation to interstate commerce, or even intrastate commerce.. "The State Industrial Board was not ob liged to believe that grass and weeds grow ing there could or would have any relation to the operation of trains. In fact, it seems to have been conceded that, so far as this phase of the claimant's work was concerned, it was for the purpose of beautifying the appearance of the yard, to make it look clean If this was the sole thing that was being done by the claimant at the time of his injury, it seems clear that he was not engaged in interstate commerce. Plass V Central New England R. Co., 226 N. Y. 449, 123 N. E. 852; Galveston H. & S. A. R. Co v. Chojnacky (Tex. Civ. App.), 163 S. W. 1013. "The claimant alone testifies as to just what he was doing at the moment of his accident. His testimony is not as clear as it might be in the differentiation between his two classes of employment, but so far as he seems to be specific in his answers the clear indication is that he was cutting and cleaning up grass. He testifies: "'Q. What were you doing at the time it hit you? A. Cleaning up grass.' "And again: "'Q. Do you remember just what you were doing at that particular minute? A. Cutting grass and cleaning up, I think.' "We think that there was some evidence to sustain the conclusion of the State Industrial Board that at the time of his injury the claimant was not engaged in interstate commerce." SEPARATE AREAS FOR SUBURBS DISCRIMINATIONSmall municipalities and residence communities forming the suburbs of a large city, the inhabitants of which suburban communities have their social and commercial interests in the metropolitan center, cannot be said to have separate community interests, and where a telephone business has been built up to include such city and its suburbs, with free call service throughout the entire district, the telephone company may not thereafter separate the suburbs into separate exchange areas, and make toll charges for calls beyond the boundaries of each exchange area, and to do so amounts to unjust discrimination. City of Cincinnati v. Public Utilities Commission, 104 Ohio St. 137 N. E. 36. TELEPHONE EXCHANGE PAPERS AS THE SUBJECT OF LARCENY By Daniel M. Lyons* At common law choses in action were not subjects of larceny, but have been generally made so by statute. The present discussion is not concerned with commercial paper or other instruments specifically included in such statutes, but is an inquiry into the history of criminal practice for the purpose of exposing the error of the view that has sometimes been taken that papers are not the subject of larceny at common law. . Although written instruments as such were not the subject of larceny, being of no intrinsic value and being evidence of property rather than property in possession or chattels, prosecutions at common law for theft of the paper on which such instruments were written were frequent. The reasoning underlying this distinction is outlined in Jolley v. U. S., 170 U. S. 406-7, citing U. S. v. Davis, 5 Mason 356, and various English cases. It has been held that cancelled notes are valuable for the paper and stamps, as well as for their future use to the owner.1 Where the stealing of instruments constituting valid obligations is made indictable by statute, the taking of the paper itself has been held in some cases to be absorbed in the major offense and the government was held bound to describe the instrument and prove the charge as alleged.2 In Queen v. Powell it was held that a charge of intent to steal goods and chattels was not sustained by evidence of intent to steal mortgage deeds, though mortgage deeds were by statute the subject of larceny. As a precaution, the practice has been adopted in some jurisdictions of adding a Assitant District Attorney, Boston, Mass. (2) Queen v. Watts, 2 Den. C. C. 14; Queen v. Powell, 2 Den. C. C. 403; State v. Campbell, 103 N. C. 344. count at common law describing the subject of larceny as a piece of paper.3 The doctrine of distinction between the instrument and the paper has not, however, been followed to the extent that the mere intrinsic value of the paper is the determining consideration; the writing itself being an element of value great or little according to the contents. Thus in a prosecution for the larceny of copies of despatches taken from a government office in London, the Court said: "Such documents as these are clearly the subject of larceny, and inasmuch as the stealing of the paper itself would be a felony the fact of the paper being printed on makes no difference, and indeed this fact might in a great many instances materially increase the value."4 From these citations it is apparent then that the unlawful taking of papers may be indictable, even though the instruments. written thereon are not such as are made the subject of larceny by statute, nor on the other hand is it necessary that the material upon which the instrument is written be of special or appreciable value.5 The possession of a paper is some evidence of its value to the owner. It does not lie in the mouth of one who deprives the owner of such a piece of property to say that the owner may not attach value to it, because the source or ground of the value is not apparent. "Many papers having no pecuniary value for others are of the greatest possible value to the owners and are property of a most important character."6 While it is not within the scope of the present article to discuss the constitutional provisions regarding search and seizure, and the decisions on that subject, it may not be amiss to observe at this point how well recognized is the notion of property in papers. (3) Commonwealth v. Brettun, 100 Mass. 206; Rex v. Vyse, 1 Moody 218. Rex v. Guernsey, 1 F. & F. 394. Commonwealth v. Cabot, 241 Mass. 131 and (4) (5) |